G.G. et al v. Valve Corporation, No. 2:2016cv01941 - Document 123 (W.D. Wash. 2022)

Court Description: ORDER granting Defendant's 103 Motion for Summary Judgment. The Court DISMISSES Plaintiffs' remaining claims with prejudice. Plaintiffs' motion for class certification (Dkt. # 94 ) is DENIED as moot. Signed by Judge James L. Robart. (LH)
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G.G. et al v. Valve Corporation Doc. 123 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 1 of 20 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 G.G., et al., CASE NO. C16-1941JLR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiffs, 11 v. 12 13 VALVE CORPORATION, Defendant. 14 15 I. INTRODUCTION 16 Before the court is Defendant Valve Corporation’s (“Valve”) motion for summary 17 judgment. (Mot. (Dkt # 103); see also Reply (Dkt. # 116).) Plaintiffs Grace Galway and 18 Brenda Shoss (collectively, “Plaintiffs” 1) oppose Valve’s motion. (Resp. (Dkt. # 109).) 19 20 21 22 1 In prior litigation in this court, in their arbitrations, and in their Ninth Circuit appeal, the parties referred to Ms. Galway as “G.G.” and Ms. Shoss as “B.S.” (See, e.g., 3/26/19 Order (Dkt. # 44).) Plaintiffs now use their full names, rather than their initials, in their amended complaint and briefing. (See, e.g., Am. Compl. (Dkt. # 58); Resp. (Dkt. # 109).) The court follows Plaintiffs’ practice and refers to Plaintiffs by their names in this order. ORDER - 1 Dockets.Justia.com Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 2 of 20 1 The court has considered the motion, all submissions filed in support of and in opposition 2 to the motion, the relevant portions of the record, and the applicable law. Being fully 3 advised, 2 the court GRANTS Valve’s motion. 4 5 II. BACKGROUND In their sole remaining claim in this action, Plaintiffs allege that Valve supported 6 illegal gambling in its popular video games such as Counter Strike: Global Offensive 7 (“CS:GO”) by embedding within them a “lootbox” feature that, they assert, “simulated an 8 online slot machine and effectively constituted a gambling feature in what otherwise 9 appeared to be normal video games.” (Resp. at 1; see also 12/16/20 Order (Dkt. # 65) 10 (dismissing the remainder of Plaintiffs’ claims).) The lootbox feature enables players to 11 spend money on virtual keys to open virtual weapons cases 3 containing virtual guns and 12 knives, referred to as “skins,” which have a variety of different looks and textures and are 13 of different levels of rarity. (See Am. Compl. at 3-8, ¶¶ 9-11. 4) Players can then trade or 14 sell the skins using Valve’s online Steam Marketplace. 5 (See id. at 3-5, ¶¶ 9-14.) 15 16 17 2 Neither party requests oral argument (see Mot. at 1; Resp. at 1), and the court finds oral argument unnecessary to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). 3 18 19 20 21 22 The parties also refer to weapons cases as “crates,” “loot boxes,” or “lootboxes.” For consistency in this order, the court uses the term “weapons case” to refer to the cases, and “lootbox feature” to refer to the process of buying keys and opening weapons cases. 4 Because Plaintiffs’ amended complaint repeats paragraph numbers, the court cites to both the page number and paragraphs of the amended complaint in the interest of clarity. 5 Plaintiffs also assert that the skins received in weapons cases can be used to gamble on third-party websites. Because the court dismissed Plaintiffs’ claims based on Valve’s alleged support for gambling with skins (see 12/16/20 Order at 25-26), the court focuses its discussion of the background facts on evidence relating to Valve’s lootbox feature. ORDER - 2 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 3 of 20 1 Plaintiffs allowed their minor children to use their bank accounts, credit cards, and 2 PayPal accounts to play CS:GO and, unknown to Plaintiffs, the children used those 3 accounts to purchase keys to open weapons cases. (See id. at 7-8, ¶¶ 27-29; see id. at 35, 4 ¶ 129. Plaintiffs assert that Valve’s failure to disclose information about its lootbox 5 feature violated the Washington Consumer Protection Act (“CPA”), ch. 19.86 RCW. (Id. 6 at 30-33, ¶¶ 99-118.) Below, the court sets forth the relevant factual and procedural 7 background of this case. 8 A. 9 10 Factual Background The court begins by describing the CS:GO lootbox feature and then discusses the relevant facts relating to each plaintiff’s claims. 11 1. 12 Valve operates the Steam platform, which includes the Steam Marketplace, CS:GO Weapons Cases 13 through which consumers can purchase video games (including CS:GO), movies, and 14 hardware such as virtual reality headsets. (Kahler Sealed Decl. (Dkt. # 113) ¶ 2.F, Ex. F 15 (“Valve 30(b)(6) Dep.”) (sealed) at 202:1-7.) The Steam Marketplace also facilitates 16 purchases and sales of weapons cases, keys, and skins among players through its Steam 17 Community Market. (See Philander Decl. (Dkt. # 112) ¶ 3, Ex. A (“Philander-Arbabanel 18 Rep.”) (sealed) at 8.) 19 The CS:GO weapons case opening process begins with the creation of a Steam 20 account. (See id. at 7.) As part of this process, a prospective Steam user enters and 21 confirms their email address, selects their country of residence, and confirms, via a 22 checkbox, that they are 13 years of age or older and agree to the terms of the Steam ORDER - 3 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 4 of 20 1 Subscriber Agreement and the Valve Privacy Policy. (See id. at 7-8.) After opening a 2 Steam account, the user can make purchases and trade items on the Steam Marketplace. 3 (Id.) 4 To make purchases on the Steam Marketplace, users must pay real money to add 5 Steam Wallet funds to their Steam accounts. (Kahler Sealed Decl. ¶ 2.L, Ex. L (“Babbar 6 Dep.”) (sealed) at 45:15-24.) Within the United States, users can add funds using a credit 7 card, bank account, or PayPal account, among other methods. (Id. at 46:14-47:9.) Funds 8 in the Steam Wallet appear as one “Steam Buck” per U.S. dollar deposited. (Valve 9 30(b)(6) Dep. at 216:5-8.) Thus, a user who deposits $100.00 in the Steam Wallet has 10 $100.00 in Steam Bucks to spend in the Steam Marketplace. (Id.) Deposits to a Steam 11 Wallet are reflected on credit card, bank, or PayPal statements as having been made to 12 “Steamgames.com,” “Steampowered.com,” or “Steam Games.” (See, e.g., Kahler Decl. 13 (Dkt. # 110) ¶ 2.B, Ex. B (Ms. Galway’s bank and credit card statements).) 14 Users can acquire CS:GO weapons cases as a reward for CS:GO gameplay, by 15 trading with another Steam user, or by purchasing them from other users in the Steam 16 Community Market. (Philander-Arbabanel Rep. at 8; Babbar Dep. at 36:8-37:9.) Each 17 weapons case has a description and a list of skins that may be included in the case; each 18 listed skin is color-coded based on its rarity. (Philander-Arbabanel Rep. at 8.) Skins are 19 “exclusively cosmetic in the game; they do not change gameplay other than 20 aesthetically.” (Id.) 21 22 To open a weapons case, the user must use a key, which can be purchased from Valve on the Steam Marketplace for about $2.50 in Steam Wallet funds. (Id.; Babbar ORDER - 4 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 5 of 20 1 Dep. at 36:8-37:1; see also Valve 30(b)(6) Dep. at 114:23-25.) Users can also purchase 2 keys from other users in the Steam Community Market. (Babbar Dep. at 37:18-38:5.) 3 When a user opens a weapons case, an animation displays the skins that may be 4 available in the case. (Philander-Arbabanel Rep. at 8.) The frequency of seeing a skin in 5 the animated display matches the odds in which the skin will appear when the case opens. 6 (Id. at 9.) Plaintiffs assert that this animation “simulate[s] an online slot machine.” 7 (Resp. at 1.) The skin that ultimately appears in the open weapons case may have a value 8 either greater or less than the price of the key used to open the case. 9 (Philander-Arbabanel Rep. at 9.) The value of the skin is set through market forces in the 10 Steam Community Market. (Id.) 11 A user can sell or trade the skins he or she receives in a weapons case to other 12 users in the Steam Community Market. (Id.) The seller receives the amount paid, minus 13 a fee to Valve, in the form of Steam Wallet funds. (Id.; Valve 30(b)(6) at 201:17-25, 14 211:14-19.) The Steam Wallet funds are tied to the user’s Steam account and cannot be 15 moved, exchanged for cash, or withdrawn to a bank account through Steam. 16 (Philander-Arbabanel Rep. at 9-10.) The Steam Wallet funds can, however, be used 17 within the Steam Marketplace to purchase items such as virtual reality hardware, movies, 18 or a subscription to another game. (Id. at 10; Valve 30(b)(6) at 202:1-7.) They can also 19 be used to buy virtual items from other users. (Philander-Arbabanel Rep. at 11; Valve 20 30(b)(6) at 114:23-25.) 21 // 22 // ORDER - 5 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 6 of 20 1 2. Ms. Galway 2 Ms. Galway’s son, Jesse Plum, 6 played CS:GO. (See Kahler Decl. ¶ 2.K, Ex. K 3 (“Plum Dep.”) at 28:16-21.) Ms. Galway’s credit card was linked to her son’s Steam 4 account and incurred charges by Steam. (Galway Dep. 7 at 85:15-16; see Kahler Decl. 5 Ex. B.) Ms. Galway understood at the time that skins would give a player “some time of 6 advantage in the game.” (Galway Dep. at 38:23-39:3.) From time to time, Mr. Plum 7 would ask Ms. Galway for money for games or to put on his Steam account. (Id. at 8 84:15-86:1.) Ms. Galway was not aware that Mr. Plum was using the money to obtain or 9 open weapons cases. (Id. at 73:21-24.) Although Mr. Plum had been playing CS:GO 10 since at least 2015, it was not until Christmas of 2017 that he told his mother that he had 11 “won a bunch of money” with skins and then subsequently lost the money. (Id. at 12 38:23-39:3, 39:22-40:11.) He explained to Ms. Galway that he could sell skins to other 13 players for money and gamble the skins in the game. (Id. at 40:12-20.) 14 Nearly all of Mr. Plum’s key and skins purchases were made using Ms. Galway’s 15 bank account or credit card. (See Plum Dep. at 17:22-18:3, 50:21-51:1; see also id. at 16 43:16-23 (stating he would ask his mother for money for video games).) He learned 17 about opening weapons cases from watching a YouTube video, thought it looked like 18 fun, and hoped he could be lucky like the YouTube personalities. (Id. at 39:13-40:3; 19 20 21 22 6 Because Mr. Plum and Ms. Shoss’s son, Elijah Ballard, are no longer minors, the court follows the parties’ practice and refers to them by name. 7 Both parties have submitted excerpts from Ms. Galway’s deposition. (See Skok Decl. (Dkt. # 104) ¶ 2, Ex. A; Kahler Decl. ¶ 2.A, Ex. A.) For ease of reference, the court cites directly to the page and line number of Ms. Galway’s deposition. ORDER - 6 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 7 of 20 1 42:3-10.) The first time he opened a weapons case, he received a relatively rare item; he 2 recalls that opening weapons cases gave him a “little rush” that made him want to open a 3 case again. (Id. at 42:11-17, 84:18-22.) 4 Ms. Galway never visited the Valve website or the Steam website, nor has she 5 ever used Steam. (Galway Dep. at 33:11-12, 34:23-25; Skok Decl. ¶ 4, Ex. C (“Galway 6 RFA Resp.”) Nos. 1-4.) She had never heard of Steam before December 2018 and has 7 never read anything online about Steam or looked into the features it offers. (Galway 8 Dep. at 34:16-22, 35:7-12.) She has never played CS:GO. (Galway RFA Resp. No. 5.) 9 She has no understanding of how weapons cases are opened, nor has she seen a weapons 10 case being opened. (Galway Dep. at 70:4-14.) She has never talked with her son about 11 weapons cases or keys and does not believe she ever asked her son if he had opened any 12 weapons cases in CS:GO. (Id. at 71:7-8, 72:22-24, 86:15-17.) Before the December 13 2018 arbitration in this case, she had no knowledge of her son spending money or asking 14 for money to open CS:GO weapons cases. (Id. at 73:21-24, 82:2-5; see also Galway 15 RFA Resp. Nos. 14, 17.) 16 3. 17 Ms. Shoss’s son, Elijah Ballard, also played CS:GO. (See Kahler Decl. ¶ 2.J, Ex. J Ms. Shoss 18 (“Ballard Dep.”) at 22:10-13.) Mr. Ballard bought keys from Valve to open weapons 19 cases and traded skins for keys on the Steam Community Market. (Id. at 22:25-23:11.) 20 He used his parents’ money to buy keys and skins. (Id. at 33:4-9; 36:16-25, 46:1-47:4.) 21 Mr. Ballard did not directly ask his parents for money to use on the Steam platform; 22 ORDER - 7 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 8 of 20 1 instead, he asked for money for PayPal. (Shoss Dep. 8 at 37:24-38:5.) Eventually, he 2 used his mother’s personal credit card and a credit card for his mother’s nonprofit without 3 her knowledge or permission for charges related to his Steam account. (Shoss Dep. at 4 27:11-29:6.) 5 Ms. Shoss first learned about Steam when she saw the name appear on her credit 6 card statements. (Shoss Dep. at 13:20-24.) She originally thought Steam was simply the 7 corporate name of the video game her son played. (Id. at 13:25-14:9.) She also thought 8 that her son had to buy keys in order to open elements required for him to play CS:GO 9 and that he needed a certain amount of money to participate in the game community. (Id. 10 at 20:14-21:3; 38:16-39:2.) She states that she never “would have suspected that a video 11 game that catered to tweens and kids could have anything to do with gambling.” (Id. at 12 48:11-24.) 13 Ms. Shoss has personally never used Steam, visited any Valve website, visited a 14 Steam website, or played CS:GO. (Shoss Dep. at 15:15-22; Skok Decl. ¶ 5, Ex. D 15 (“Shoss RFA Resp.”) Nos. 1-5.) She has never seen a key, read any articles about keys, 16 or seen anything on any Valve or Steam website about keys or weapons cases. (Shoss 17 Dep. at 21:7-16.) She also has never seen anything on any Steam or Valve website about 18 weapons cases and has never observed any CS:GO gameplay nor seen a weapons case 19 opening. (Id. at 27:17-23, 56:10-14; Shoss RFA Resp. Nos. 6, 22.) Ms. Shoss had no 20 21 22 8 Both parties have submitted excerpts from Ms. Shoss’s deposition. (See Skok Decl. ¶ 3, Ex. B; Kahler Decl. ¶ 2.C, Ex. C.) For ease of reference, the court cites directly to the page and line number of Ms. Shoss’s deposition. ORDER - 8 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 9 of 20 1 knowledge of keys or weapons cases when she provided funds to her son, and the time of 2 her deposition in July 2021, she did not know whether Mr. Ballard had spent any of her 3 money on keys. (Shoss RFA Resp. Nos. 9, 17; Shoss Dep. at 94:21-95:3.) 4 B. 5 Procedural Background Plaintiffs originally filed their complaint in King County Superior Court on 6 November 29, 2016. (Compl. (Dkt. # 1-3). 9) Each of the Plaintiffs alleged that their 7 minor children purchased CS:GO from Valve, purchased skins, “gambled [the skins] and 8 lost money,” and knew that they could “cash out the [s]kins for real money prior to losing 9 them while gambling.” (Id. ¶¶ 13-15; see also id. ¶¶ 99-101.) Based on these allegations, 10 Plaintiffs alleged state-law claims on behalf of themselves and their minor children based 11 on skins gambling for violation of the CPA; recovery of money lost at gambling under 12 RCW 4.24.070; violation of the Washington Gambling Act of 1973, RCW 9.46, et seq. 13 (“Gambling Act”); unjust enrichment; negligence; and declaratory relief. (Compl. 14 ¶¶ 118-72.) 15 On December 20, 2016, Valve removed the action to this court (Not. of Removal 16 (Dkt. # 1)), and on February 13, 2017, United States District Judge John C. Coughenour 17 denied Plaintiffs’ motion to remand (see 2/13/17 Order (Dkt. # 25)). On April 3, 2017, 18 Judge Coughenour granted Valve’s motion to compel arbitration of the claims brought by 19 Plaintiffs on behalf of themselves and their minor children and stayed the case pending 20 21 22 9 The original and amended complaints also named a third adult plaintiff, Andy Lesko. (See id. at 1; Am. Compl. at 1.) The parties stipulated to the dismissal of Mr. Lesko’s claims on June 25, 2021. (See Stip. (Dkt. # 85).) ORDER - 9 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 10 of 20 1 arbitration. (4/3/17 Order (Dkt. # 30) at 8.) The court upheld the enforceability of the 2 arbitration clause within the Steam Subscriber Agreement that Plaintiffs’ children agreed 3 to when they registered their Steam accounts and found that the claims of both the 4 Plaintiffs and their children were within the scope of that arbitration clause. (Id. at 4-8.) 5 The claims of Plaintiffs and their children proceeded to arbitration with the 6 American Arbitration Association (“AAA”). In both arbitrations, the arbitrators ruled in 7 favor of Valve on all of the claims brought by Plaintiffs and their children. (See 12/16/20 8 Ord. at 5-7 (summarizing the results of the arbitrations).) 9 After the AAA closed the arbitrations, Valve moved Judge Coughenour to lift the 10 stay and dismiss Plaintiffs’ claims with prejudice. (Mot. to Lift Stay & Dismiss (Dkt. 11 # 33).) The court granted Valve’s request to lift the stay, denied Plaintiffs’ renewed 12 challenge to the arbitrability of their claims, and denied Plaintiffs’ request to set aside the 13 arbitrators’ awards. (See generally 3/26/19 Order.) The court granted Valve’s request to 14 dismiss all of Plaintiffs’ claims with prejudice. (See id. at 10.) 15 Plaintiffs appealed the court’s order and judgment. (Not. of Appeal (Dkt. # 46).) 16 On April 3, 2020, the Ninth Circuit Court of Appeals affirmed in part and vacated in part 17 the court’s order and judgment. G.G. v. Valve Corp., 799 F. App’x 557 (9th Cir. 2020). 18 The Ninth Circuit held that the court erred in compelling Plaintiffs, in their individual 19 capacities, to arbitrate their claims because Plaintiffs were not signatories to the Steam 20 Subscriber Agreement and were not bound to it by equitable estoppel. Id. at 558. The 21 Ninth Circuit also held that the court erred when it entered judgment on the claims that 22 Plaintiffs brought in their individual capacities because a district court can confirm an ORDER - 10 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 11 of 20 1 arbitral award only against parties who “have agreed that a judgment of the court shall be 2 entered upon the award made pursuant to arbitration.” Id. Thus, the Ninth Circuit 3 remanded the claims Plaintiffs brought in their individual capacities, “to the extent they 4 are viable.” Id. It affirmed, however, the court’s judgment dismissing the claims that 5 Plaintiffs brought on behalf of their children. Id. at 558-59. 6 After remand, Plaintiffs amended their complaint and added allegations relating to 7 Valve’s lootbox feature. (See generally Am. Compl.). The amended complaint alleged 8 claims based on both “skins gambling” and “lootbox gambling” for violation of the CPA, 9 violation of the Gambling Act, unjust enrichment, negligence, and injunctive relief, on 10 behalf of the parents of the minor children whose claims were dismissed by the court in 11 its March 26, 2019 order and a proposed class of all similarly situated persons. (Id. at 12 30-41, ¶¶ 99-163.) Plaintiffs proposed the following class definition: 13 14 15 16 All persons in the United States who are parents/guardians of a minor child who provided funds to their minor child(ren) for the purchase of Skins and/or Keys for the games [CS:GO], Dota2 and Team Fortress 2. (Id. at 29, ¶ 94.) On October 1, 2020, Valve moved to dismiss Plaintiffs’ amended complaint in its 17 entirety. (See MTD (Dkt. # 59).) The court granted Valve’s motion in part. (See 18 12/16/20 Order at 26-27.) Specifically, the court (1) denied Valve’s motion to dismiss 19 Plaintiffs’ CPA claims based on alleged support for lootbox gambling because those 20 claims were not raised in the parties’ arbitrations; (2) dismissed without prejudice and 21 with leave to amend Plaintiffs’ unjust enrichment and negligence claims based on alleged 22 support of lootbox gambling; and (3) dismissed with prejudice Plaintiffs’ claims for ORDER - 11 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 12 of 20 1 violation of the Gambling Act and all claims based on alleged support of skins gambling. 2 (Id.) Although the court granted leave to amend, Plaintiffs chose not to amend their 3 complaint. (See generally Dkt.) Thus, the only claim remaining is Plaintiffs’ CPA claim 4 based on Valve’s alleged support for lootbox gambling. 5 Plaintiffs moved for class certification on September 28, 2021. (MCC (Dkt. 6 # 94).) On October 21, 2021, Valve filed the instant motion for summary judgment. 7 (Mot.) 8 III. 9 Below, the court sets forth the summary judgment standard and then evaluates 10 Valve’s motion. 11 A. 12 ANALYSIS Summary Judgment Standard Summary judgment is appropriate if the evidence viewed in the light most 13 favorable to the non-moving party shows “that there is no genuine dispute as to any 14 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 15 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Beaver v. Tarsadia Hotels, 16 816 F.3d 1170, 1177 (9th Cir. 2016). A fact is “material” if it might affect the outcome 17 of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute 18 is “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the 19 non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) 20 (citing Anderson, 477 U.S. at 248-49). 21 22 The moving party bears the initial burden of showing there is no genuine dispute of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at ORDER - 12 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 13 of 20 1 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can 2 show the absence of such a dispute in two ways: (1) by producing evidence negating an 3 essential element of the nonmoving party’s case, or (2) by showing that the nonmoving 4 party lacks evidence of an essential element of its claim or defense. Nissan Fire & 5 Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party 6 meets its burden of production, the burden then shifts to the nonmoving party to identify 7 specific facts from which a factfinder could reasonably find in the nonmoving party’s 8 favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. 9 B. 10 Claims Based on Dota 2 and Team Fortress 2 Valve argues that Plaintiffs’ claims, if any, relating to alleged lootbox gambling in 11 its games Dota 2 and Team Fortress 2 must be dismissed because the undisputed 12 evidence shows that neither Ms. Galway nor Ms. Shoss gave their children money for use 13 in those games. (Mot. at 11; see Plum Dep. at 32:10-33:3 (Ms. Galway’s son’s testimony 14 that he never purchased virtual items or crates in Team Fortress 2 and that he never 15 played Dota 2); Ballard Dep. at 93:7-11 (Ms. Shoss’s son’s testimony that he did no 16 gambling other than with CS:GO skins); Shoss Dep. at 59:5-19 (Ms. Shoss’s testimony 17 that she knows nothing about Dota 2 and cannot identify Team Fortress 2 as a Valve 18 “entity”).) Indeed, nowhere in their amended complaint do Plaintiffs allege that their 19 children played either of those games; rather, they allege simply that “Skins refers not 20 just to CS:GO Skins but the equivalent virtual items that are things of value in other 21 Valve games such as [Dota ]2 and [Team Fortress] 2.” (Am. Compl. at 2-3, ¶ 8; see also 22 id. at 29, ¶ 94 (class definition).) ORDER - 13 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 14 of 20 1 In response, Plaintiffs offer no evidence that either of them gave money to their 2 children to play Dota 2 or Team Fortress 2. (See generally Resp.) Instead, they counter 3 that whether Plaintiffs have standing to pursue CPA claims based on Dota 2 and Team 4 Fortress 2 on behalf of the proposed class “is properly raised in the context of a motion 5 for class certification, not a motion for summary judgment.” (Resp. at 23-24.) 6 The court agrees with Valve that it is entitled to summary judgment on Plaintiffs’ 7 CPA claims based on Dota 2 and Team Fortress 2. None of Plaintiffs’ cited cases stand 8 for the proposition that a court may not consider whether the named plaintiffs in a 9 proposed class action have met their burden to defeat a motion for summary judgment on 10 claims they purport to assert on behalf of themselves and a proposed class. (See 11 generally id.) Because there is no evidence in the record that Plaintiffs gave money to 12 their children to play Dota 2 and Team Fortress 2, Plaintiffs cannot, as a matter of law, 13 establish that they suffered injuries to their business or property caused by Valve’s 14 conduct with respect to those two games. See Mai v. Supercell Oy, No. 15 5:20-cv-05573-EJD, 2021 WL 4267487, at *3 (N.D. Cal. Sept. 20, 2021) (dismissing, in 16 a proposed class action, plaintiff’s California consumer protection claims based on games 17 that plaintiff never alleged he had played). The court GRANTS Valve’s motion for 18 summary judgment on Plaintiffs’ claims based on Dota 2 and Team Fortress 2 and 19 DISMISSES them with prejudice. 20 C. Claim Based on CS:GO 21 To prevail on a CPA claim, a plaintiff must show (1) an unfair or deceptive act or 22 practice, (2) occurring in trade or commerce, (3) impacting the public interest, (4) injury ORDER - 14 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 15 of 20 1 to the plaintiff’s business or property, and (5) causation. Hangman Ridge Training 2 Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 533 (Wash. 1986); RCW 19.86.020. 3 Valve argues that Plaintiffs cannot meet this burden because Plaintiffs cannot show (1) 4 that they were injured because the funds used for case opening belonged to the minor 5 children rather than to Plaintiffs; (2) assuming Plaintiffs were injured, that any act or 6 omission by Valve caused that injury because Plaintiffs never used Steam, viewed 7 Valve’s website, or played CS:GO; and (3) that Valve committed an unfair or deceptive 8 act or practice because lootbox opening is not “gambling” as a matter of law. (See Mot. 9 at 3-11.) The court GRANTS Valve’s motion because Plaintiffs have not met their 10 burden to show a genuine issue of material fact regarding the causation element of their 11 CPA claim. 10 12 To prevail under the CPA, Plaintiffs must show that Valve’s allegedly unfair or 13 deceptive acts or practices proximately caused their alleged injury. Indoor 14 Billboard/Wash. Inc. v. Integra Telecom of Wash., Inc., 170 P.3d 10, 22 (Wash. 2007). In 15 other words, the “plaintiff must establish that, but for the defendant's unfair or deceptive 16 practice, the plaintiff would not have suffered an injury.” Id. If the injury would have 17 occurred regardless of whether the alleged violation existed, causation cannot be 18 established. Panag v. Farmers Ins. Co. of Wash., 204 P.3d 885, 903 (Wash. 2009). 19 20 21 22 10 Because the court’s holding with respect to the causation element is dispositive, the court does not analyze Valve’s arguments regarding injury and the existence of an unfair or deceptive act or practice. ORDER - 15 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 16 of 20 1 Although proof that the plaintiff relied on the defendant’s misrepresentations or 2 omissions is not generally required to show causation under the CPA, a court may require 3 the plaintiff to show reliance where reliance is the plaintiff’s own causation theory. 4 Young v. Toyota Motor Sales, U.S.A., 472 P.3d 990, 996-97 (Wash. 2020). Thus, 5 because Plaintiffs base their causation theory on their reliance on Valve’s 6 misrepresentations or omissions, the court must determine whether they have met their 7 burden to establish a genuine issue of material fact regarding whether they relied on 8 Valve’s misrepresentations or omissions to their detriment. (See, e.g., Am. Compl. at 32, 9 ¶ 111 (alleging that “Valve’s acts, omissions, and practices . . . induced Plaintiffs to 10 unwittingly provide their minor children with monies used to purchase Skins and 11 keys . . . .”).) The court first addresses Plaintiffs’ claims based on alleged 12 misrepresentations before turning to their claims based on alleged omissions. 13 14 a. Misrepresentations Valve contends that Plaintiffs cannot show that they were injured as a result of any 15 misrepresentations because it is undisputed that Plaintiffs never saw or read any 16 representations from Valve about CS:GO, keys, or weapon cases; did not know about the 17 weapons case features; and did not know that their children used their money to open 18 weapons cases. (Mot. at 4-5; see also Shoss Dep. at 15:17-22, 56:10-14 (stating she had 19 never used Steam, been to any Valve website, been to a Steam website, or seen a case or 20 crate opening); Galway Dep. at 33:11-12, 33:23-35, 70:4-14 (stating she had never gone 21 to any Valve website, visited the Steam website, or seen a crate opening).) Thus, 22 according to Valve, if Plaintiffs never saw any representations by Valve, they cannot ORDER - 16 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 17 of 20 1 show that they relied on or were induced by Valve’s misrepresentations and, as a result, 2 their claims based on alleged misrepresentations must fail. (Mot. at 5-6.) 3 Plaintiffs do not dispute that they never used Steam or viewed any Valve or Steam 4 website. (See generally Resp.) Rather, they counter that “the only affirmative 5 representations” that they relied on were the line items on their credit card and bank 6 statements reflecting the payments they made to Valve through its Steam platform. 7 (Resp. at 15 (citing Galway Dep. at 20:4-8; Shoss Dep. at 13:20-24).) They assert that 8 these statements “misrepresented and omitted that the purchases were for keys to open 9 loot boxes.” (Id. (citing Kahler Decl. ¶¶ 2.D-E, Exs. D & E (Shoss credit card and bank 10 statements, showing that the payments to Valve were reflected as made to 11 “Steamgames.com,” “Steampowered.com,” or “Steam Games”); id. Ex. B (Galway bank 12 and credit card statements, showing the same).) 13 The court agrees with Valve that no reasonable factfinder could find that the line 14 items on Plaintiffs’ bank and credit card statements were misrepresentations or omitted a 15 material fact because the statements accurately reflect that the payments were made to 16 Valve’s Steam platform. Steam users upload funds to their Steam Wallet; it is only after 17 the funds are added to the Steam Wallet that they can be used to purchase keys, cases, or 18 skins. (See Babbar Dep. at 45:15-24, 46:14-47:9; Philander-Arbabanel Rep. at 9-10.) 19 Plaintiffs present no evidence that would permit an inference that the line items on their 20 statements were false or otherwise misrepresented the charges. (See Resp. at 15-16.) 21 Accordingly, the court GRANTS Valve’s motion for summary judgment on Plaintiffs’ 22 CPA claims to the extent they rely on an affirmative misrepresentation theory. ORDER - 17 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 18 of 20 1 2 b. Omissions Valve also contends that Plaintiffs cannot prove causation based on omissions. 3 (Mot. at 6-7.) Where the plaintiff alleges causation based on an omission of a material 4 fact, “Washington courts apply a rebuttable presumption that the plaintiff relied on the 5 defendant’s representations concerning the product, so as to avoid putting the plaintiff in 6 the ‘impossible position’ of proving ‘they believed the opposite of the omitted fact.’” 7 Nazar v. Harbor Freight Tools USA Inc., No. 2:18-CV-00348-SMJ, 2020 WL 4741091, 8 at *3 (E.D. Wash. Aug. 14, 2020) (quoting Deegan v. Windermere Real Estate / Ctr.-Isle, 9 Inc., 391 P.3d 582, 587 (Wash. Ct. App. 2017)); see also Blough v. Shea Homes, Inc., 10 No. C12-1492RSM, 2014 WL 3694231, at * 13 (W.D. Wash. July 23, 2014) (citing 11 Morris v. Int’l Yogurt Co., 729 P.2d 33, 41 (Wash. 1986)). This presumption can be 12 rebutted by a showing that “the plaintiff’s decision would have been unaffected even if 13 the omitted fact had been disclosed.” Blough, 2014 WL 3694231, at *14 (quoting 14 Morris, 729 P.2d at 41). 15 Plaintiffs assert that their amended complaint “clearly focuses on actionable 16 omissions by Valve, i.e., what Valve was not representing to parents of minor children 17 regarding the harms and dangers of opening a loot box, rather than what Valve was 18 affirmatively representing to parents about its harms and dangers—which was nothing.” 19 (Resp. at 13.) They argue that Valve’s actionable omissions include “deceptively 20 embedd[ing] a gambling feature in what otherwise appeared to be a typical first-person 21 shooter game”; “conceal[ing] both the true odds of a loot box containing a given item and 22 the value of various items contained within a loot box”; and “conceal[ing] the harms and ORDER - 18 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 19 of 20 1 risks presented by loot boxes.” (Id. at 10; see also Am. Compl. at 4, ¶ 12; id. at 13-14, 2 ¶¶ 21-22.) It is undisputed, however, that Plaintiffs never visited a Valve or Steam 3 website, never used Steam, never played CS:GO, and never saw or read any 4 representations from Valve about CS:GO, keys, or weapon cases. (See generally Resp.; 5 see also Shoss Dep. at 15:17-22, 56:10-14; Shoss RFA Resp. Nos. 1-5; Galway Dep. at 6 33:11-12, 33:23-35, 70:4-14; Galway RFA Resp. Nos. 1-5.) Thus, even if Valve had 7 disclosed on its websites, on the Steam platform, and in CS:GO “the true odds of a loot 8 box containing a given item and the value of various items contained within a loot box”; 9 “the harms and risks presented by loot boxes”; and that Valve had embedded an alleged 10 gambling feature in the game (Resp. at 10), there can be no dispute that Plaintiffs would 11 not have seen those disclosures. Although Plaintiffs assert that they would not have 12 “given their children money to purchase keys to open Valve’s loot boxes had they known 13 it amounted to gambling” (Resp. at 21), they do not explain how they would have learned 14 this information where they never visited or used any of the websites or platforms where 15 Valve might have made such disclosures (see id. at 21-22). The court agrees with Valve 16 that no reasonable factfinder could find that Plaintiffs’ decisions would have been 17 affected by information to which they were never exposed. Therefore, the court 18 GRANTS Valve’s motion for summary judgment on Plaintiffs’ CPA claims based on 19 alleged omissions of material fact. 20 // 21 // 22 // ORDER - 19 Case 2:16-cv-01941-JLR Document 123 Filed 01/07/22 Page 20 of 20 1 2 IV. CONCLUSION For the foregoing reasons, the court GRANTS Valve’s motion for summary 3 judgment (Dkt. # 103) and DISMISSES Plaintiffs’ remaining claims with prejudice. 4 Plaintiffs’ motion for class certification (Dkt. # 94) is DENIED as moot. 5 Dated this 7th day of January, 2022. 6 7 A 8 JAMES L. ROBART United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 20