On Friday in the Southern District of Ohio, Sean McCloskey sued Apple, Inc. in a class-action complaint alleging that Apple “promotes, enables, and profits from games downloaded from its App Store and played by numerous Ohio residents that constitute illegal gambling under the statutory law and the strong public policy of the state of Ohio.” As a result, he has sought to recover money that he and other Ohio players spent on these purportedly illegal games.
The plaintiff claimed that through Apple’s App Store, app developers create apps and Apple decides which apps to include in its store, therefore, deciding which apps can be downloaded. The plaintiff noted Apple takes up to a 30 percent commission on either the purchase price to download the app or for in-app purchases. The consumer pays Apple, who then pays the app developer; “all in-app and other purchases involve the payment of money to Apple, not the developers.” Specifically, the plaintiff concluded that Apple is “profiting from illegal gambling machine games that it sells in its App Store.”
The plaintiff proffered that Apple allegedly “allow(s) consumers to purchase games that are no more or no less than casino-style slot machines, casino style table games, and other common gambling games.” The plaintiff claimed that the purported gambling games all operate similarly. For example, “when a customer downloads the game and opens it for the first time, the customer has a set number of free stating ‘coins’ … A loss results in a loss of ‘coins,’ but the customer has the chance to win more coins. Eventually a customer runs out of coins, and is prompted to use real money to buy more coins for the opportunity to keep playing the game.”
The plaintiff asserted that he downloaded and played a few of these types of games since July 2019 and he has purchased coins through the Apple App Store, “so he could continue to play for a chance to win free coins that would enable him to enjoy the games for a longer period of time.” The plaintiff contended that he paid Apple “for the privilege of continuing to play the illegal gambling games.”
According to the complaint, the plaintiff or another customer “does not have the ability to collect actual cash as a result of ‘winning’ games, but he does have the ability to win and therefore acquire more playing time. Ohio gambling statutes prohibit this scheme, noting that ‘valuable consideration is deemed to be paid for a chance to win a prize’ when ‘a participant may purchase additional game entries by using points or credits won as prizes while using the electronic device.’”
The plaintiff also stated that the Ohio Supreme Court has also determined that this is an illegal practice. In particular, Ohio law prohibits “gambling on ‘schemes of chance’ and ‘games of chance.’” However, the plaintiff alleged that Apple “is the principal promoter and facilitator of the illegal activity” because it controls downloadable apps and payments. The plaintiff claimed that Apple could “geo-restrict games so that they can only be played in certain states,” which it has previously done. Specifically, the plaintiff noted that “with cash-out gambling games it regularly restricts those game(s) so that they can only be played in states where that type of gambling is legal.” Furthermore, the plaintiff averred that Apple “enables, permits, promotes, and profits from illegal gambling.” As a result, the plaintiff alleged that Apple has violated various Ohio laws.
The plaintiff, represented by Breen Law, LLC and Davis & Norris, LLP, has sought to “to recover money lost to illegal gambling pursuant to Section 3763.02 of the Ohio Revised Code” and “O.R.C. §§ 2915.01 et seq.” The plaintiff has also sought for the court to certify the class, the plaintiff and his counsel to represent the class, and costs and fees.
A similar suit was brought against Google for gambling games on its Google Play Store allegedly in violation of New Mexico laws. The New Mexico plaintiff is represented by Kennedy Kennedy & Ives, PC and Davis & Norris, LLP.