August 3, 2016
Given Pokémon Go’s success, it was only a matter of time before someone tried a class-action lawsuit. But the game hasn’t even been out a full month yet, and it’s already facing such a suit.
The lawsuit, filed last Friday, argues that Pokémon Go creator Niantic Labs is liable for nuisance through the company’s “intentional, unauthorized placement of Pokéstops and Pokémon gyms on or near” the property of plaintiff Jeffrey Marder and other members of the proposed class.
The complaint details the harrowing ordeal Mr. Marder was forced to endure because of Pokémon Go. First, during the week of the game’s release, “strangers began lingering outside of his home with their phones in hand.” The faint of heart should be advised against reading what happened next: Marder had to answer the door for at least five individuals who knocked seeking”access to [his] backyard in order to ‘catch’ Pokémon.” Worst of all, perhaps, is the fact that these Pokémon were placed in Marder’s backyard without his permission.
To recap, the complaint is claiming that Niantic and Nintendo are liable for nuisance – that is, the continuous interference with the use and enjoyment of one’s land – because the game maker places Pokémon, Pokéstops, and Pokémon gyms on or near the private property of those with a particularly low tolerance for other human beings.
If you happened to read my Pokémon Go Legal Q&A article from last week, you may be wondering how Niantic’s “Pokémon GO Terms of Service” plays into this whole thing. Yes, the same terms of service that specifically requires users to agree to not “abuse, harass, harm, stalk, threaten, or otherwise violate the legal rights (including the rights of privacy and publicity) of others” nor “trespass, or in any manner attempt to gain or gain access to any property or location where you do not have a right or permission to be.”
According to the complaint, the terms of service serves to demonstrate Niantic’s “blithely acknowledg[ing] its placement of Pokéstops on private property.” Nevermind that the phrase quoted by the complaint from Niantic’s website (“If you can’t get to the Pokéstop because it’s on private property, there will be more just around the corner, so don’t worry!”) actually seems to be discouraging players from entering private property.
And what about Niantic’s Pokémon GO Trainer guidelines? The ones that instruct players to “Adhere to the rules of the human world” and to “Respect the community?” Why, it must be nothing more than a smokescreen to distract honest citizens from seeing the diabolical scheme of Niantic to directly profit from inducing Pokémon Go players into legally entering (that’s right – the complaint isn’t alleging trespass as a separate action) the property of those who don’t want to deal with other human beings in a civilized society.
But what is the complaint asking for in damages? Surely the plaintiff cannot reasonably believe that any court would award anything more than nominal damages even assuming arguendo that Niantic was found to be liable for nuisance.
That is probably why the complaint also alleges “unjust enrichment” on the part of Niantic – that is, the company has “received and retained a benefit from [Marder] and other members of the proposed Class” in part through “encouraging players to make incursions” onto the private property of others. As such, the complaint argues, Niantic’s “unjust enrichment should be disgorged.”
In other words, the complaint is claiming that Niantic unlawfully profited from its allegedly encouraging players to bother people like Mr. Marder, and because of that, the court should award those illegal gains as damages to the plaintiff class.
While this is a pretty attenuated claim, the lawsuit is virtually worthless in terms of damages without it, so it’s no surprise that it was included.
Truth be told, though, as much as the claims may seem brittle, this area is largely uncharted legal territory, so there’s no way to know for certain how things will shake out.
On the other hand, as some news outlets are reporting, this may just be a case of “[a]n angry old man … telling those dang kids to get off his lawn.”