Google Moves to Strike Proffer in Loot Box Gaming Class Action

Tech giant Googlehas objected and moved to strike plaintiff gamers’ proffer in a class action relating to so-called loot boxes. The contested proffer contains a copy of one of the plaintiff’s Google Play Store order histories allegedly corroborated by his own counsel. Google LLC argues that it should be stricken because the submission is untimely and is irrelevant hearsay lacking in all foundation.

The Northern California class action alleges that Google violates gambling laws through the use of loot boxes, digital grab bags with unknown contents that can be purchased with real or in-game currency in Google Play Store in-app purchases. The plaintiffs claim that loot boxes are “predatory,” and akin to gambling game techniques employed to exact money from users in violation of California consumer protection laws.

Previously, the court granted dismissal and leave to amend in February. In its motion to dismiss the renewed pleading, Google claims that its conduct is shielded by Section 230 of the Communications Decency Act, which prevents online intermediaries from being held liable for content published on their platforms. The plaintiffs counter that Google is liable for facilitating and profiting from gambling activity, placing it outside the protection of Section 230. 

The proffer reportedly “attempts to do exactly what the Court prohibited” at oral argument, the motion says, citing to the hearing transcript when Judge Beth Labson Freeman admonished plaintiffs’ counsel for “‘manipulat[ing] the facts to bob and weave around [the Court’s] order.’” Aside from bucking Judge Freeman’s warning, Google contends that matters outside the pleadings are improper on a failure to state a claim motion.

In addition, as the document is allegedly submitted for the truth of its contents, Google argues that the proffer constitutes hearsay. “Plaintiffs’ counsel again attempts to offer improper ‘expert’ testimony—now in the form of this hearsay “Proffer” instead of a declaration—when they are not qualified to do so and the argument and purported supporting evidence lacks any foundation,” the motion says.

Among other arguments, Google contends that the proffer improperly and predictably requests leave to amend to include the exact allegations that the court already forbade the plaintiffs from adding. The case has been whittled down to two video games: Final Fantasy Brave Exvius and Dragon Ball Z Dokkan Battle, yet, the plaintiffs seek to add information relating to purchases made in two other games, the motion says. In turn, Google asserts that the proffer is factually irrelevant.

The plaintiffs are represented by Blood Hurst & O’Reardon LLP and The Law Offices of Andrew J. Brown. Google is represented by Baker & McKenzie LLP