Game File - Dunn Et Al v. Activision Blizzard Inc Et Al, 3 - 23-Cv-00224, No. 121 (E.D.ark. Mar. 29, 2024)

Case 3:23-cv-00224-JM Document 121 Filed 03/29/24 Page 1 of 64
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
CASEY DUNN, )
individually and on behalf of )
G.D., a minor; and )
THOMAS DUNN, )
)
Plaintiffs, )
)
v. ) Case No. 3:23-cv-00224-JM
)
ACTIVISION BLIZZARD, INC.; )
INFINITY WARD, INC.; )
TREYARCH CORP.; )
SLEDGEHAMMER GAMES, INC.; )
MICROSOFT CORPORATION; ) Hon. James M. Moody Jr.
EPIC GAMES, INC.; )
ELECTRONIC ARTS, INC.; )
UBISOFT DIVERTISSEMENTS, INC. )
d/b/a UBISOFT MONTREAL; )
NINTENDO OF AMERICA, INC.; )
GOOGLE LLC; and )
JANE & JOHN DOE I-XX, )
)
Defendants, )
RESPONSE IN OPPOSITION TO
MOTION TO DISMISS OF
GOOGLE LLC, NINTENDO OF AMERICA, INC.,
AND MICROSOFT CORPORATION
Plaintiffs Casey Dunn, individually and on behalf of G.D., a minor, and Thomas
Dunn hereby respond and state their opposition to the motion to dismiss (Dkt. 104) filed
by Defendants Google LLC (“Google”), Nintendo of America Inc. (“Nintendo”), and
Microsoft Corporation (“Microsoft”) (sometimes, collectively, the “Platform
Defendants”) as follows:
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INTRODUCTION
This case is about conduct, not content – product defects, not expression. Nintendo
and Microsoft sold their video game consoles—Nintendo’s Switch and Microsoft’s Xbox
Series X--as toys to be used by everyone, including minors like G.D., to play video games
like Fortnite, Call of Duty, Battlefield, and Rainbow Six. Google, Nintendo, and Microsoft
also designed and supplied online gaming products—Nintendo eShop, Xbox Game Pass
Ultimate and Xbox Cloud Gaming, and Google Play—to be used with video game
consoles, personal computers, and/or mobile phones to access, download, and play those
video games, and countless others, online on any device using the same gamer account.
This product design was purposeful.
Google, Nintendo, and Microsoft designed and distributed defective video game
products that harm users, including minors like G.D.. Each Defendant made a business
decision to utilize addictive mechanisms and patented techniques in the design of their
video game products—their toys—to take advantage of the chemical reward systems of
users’ brains to create addictive engagement, compulsive use, abuse, and addiction,
while knowing that the design would cause harm and injure users, and that their product
designs are particularly dangerous and damaging to minors’ and young adults’
developing brains. Google, Nintendo, and Microsoft did not warn anyone that their
video game products were designed to cause addictive engagement and, consequently,
were harmful to the users for whom the products were intended. Google, Nintendo, and
Microsoft certainly did not warn Plaintiffs. This was deceptive, fraudulent, and negligent.
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Google, Nintendo, and Microsoft’s conduct was, and is, outrageous and extreme.
Nintendo and Microsoft designed, marketed, and supplied their video game consoles to
the public knowing that the video games to be played using those consoles, including
Fortnite, Call of Duty, Battlefield, and Rainbow Six, were and are likely cause the user to
become addicted to video games. Google, Nintendo, and Microsoft designed their online
video game products with addictive technologies and AI to create addictive engagement.
Google, Nintendo, and Microsoft did not harm product users, like G.D., accidentally or
in a vacuum. Each Defendant knew what the other was doing, entering into licensing
agreements to utilize the same patented technologies or revenue agreements splitting the
proceeds from the addictive microtransactions built into the games. Plaintiffs seek to hold
them accountable for doing so. See Amended Complaint (Dkt. 102) (“Am. Compl.”).
In an effort to avoid accountability, Google, Nintendo, and Microsoft ask the Court
to dismiss Plaintiffs’ Amended Complaint with prejudice. See Motion to Dismiss of
Google LLC, Nintendo of America Inc., and Microsoft Corporation (Dkt. 104);
Memorandum of Law in Support of Nintendo of America Inc., Google LLC, and
Microsoft Corporation’s Motion to Dismiss Plaintiffs’ First Amended Complaint (Dkt.
105) (“Platform Defs’ Brf.”). For the reasons stated herein, Google, Nintendo, and
Microsoft’s arguments for dismissal are baseless and the Platform Defendants’ Motion to
Dismiss should be denied.
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STATEMENT OF FACTS1
I. THE DUNN FAMILY
Plaintiffs Casey Dunn and Thomas Dunn (collectively, the “Dunns”) are married
and live in Arkansas with G.D., their thirteen (13) year old child. They want what is best
for their child, and they want G.D. to be happy. G.D., like so many other kids, wanted to
play video games. The Dunns, relying on Defendants’ representations that video games
and video game consoles are safe for children, purchased Fortnite and a Nintendo Switch
for G.D. around the time G.D. was four (4) years old. As G.D. aged, they wanted other
popular video games, like Call of Duty and Battlefield, and video game consoles, like a
Microsoft Xbox Series X, which came with built-in access to digital cloud gaming using
Microsoft’s Xbox Game Pass Ultimate product. G.D. is also able to play Fortnite, Call of
Duty, and Battlefield on their Android phone. The Dunns purchased, or allowed G.D. to
purchase and/or use, these video game products unaware that they pose a risk of harm,
including addictive behavior and brain damage, to users like G.D.. See Am. Compl. ¶¶
25-32, 34, 235, 409-411, 466, 471, 500, 521, 629.
Since G.D. began playing Fortnite, Call of Duty, and Battlefield, G.D.’s life has
deteriorated. G.D. spends approximately thirteen (13) hours a day playing these games
(along with Rainbow Six).2 G.D. has spent approximately $3,000 on in-game transactions
1 The facts that follow are based on the First Amended Complaint (Dkt. 2) and all reasonable inferences
drawn therefrom, which at this stage of the litigation, must be taken as true and weighed in Plaintiffs’ favor.
See generally Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Further, for ease of reading citations to factual
allegations in the Amended Complaint will be made at the end of each paragraph.
2Defendants Ubisoft Divertissements, Inc. d/b/a Ubisoft Montreal and Ubisoft Entertainment are the
manufacturer, designer, developer, publisher, and supplier of Rainbow Six; however, they have not joined
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and downloadable content (i.e., designed product “upgrades”) to keep playing and
advancing in the game. G.D. spends approximately $350 monthly on gaming. Neither the
Dunns nor G.D. can control G.D.’s gameplay or his spending on product upgrades or
microtransactions while G.D.’s playing those video games. When the Dunns try to limit
G.D.’s spending, take away G.D.’s ability to play video games (e.g., tell G.D. to go to bed),
G.D. experiences withdrawal symptoms, including rage, anger, and physical outbursts,
and has thrown and broken game controllers. G.D. has also snuck playing games while
the Dunns sleep. Id. ¶¶ 20-21, 235-238, 241-242, 246-251.
G.D. has lost interest in things G.D. did prior to beginning to use the Defendants’
products, like hobbies, sports, and hanging out with friends. G.D.’s formal education has
likewise been impacted by G.D.’s use of the Defendants’ products, with a drop in school
grades, an inability to attend school regularly and the need for an individualized
education plan resulting in G.D. being homeschooled. G.D. has also experienced physical
injuries (including excessive weight gain resulting in morbid obesity, hand pain, elbow
pain, and shoulder pain) along with emotional distress as a result of G.D.’s compulsive
use and addiction to playing these video games. Id. ¶¶ 20-21, 238-240, 244.
G.D. is addicted to playing video games. G.D.’s video game addiction negatively
impacts the Dunns’ familial home on a daily basis. Id. ¶¶18-24, 238, 242-243, 246, 249-250.
G.D. is addicted to playing video games. G.D.’s video game addiction negatively
impacts the Dunns’ familial home on a daily basis. Id. ¶¶18-24, 238, 242-243, 246, 249-250.
this Motion and their responsive pleadings are due April 15, 2024. See Ubisoft Defendants’ Waiver of
Service (Dkt. 48).
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II. VIDEO GAME ADDICTION AND ITS EFFECTS
Video game addiction (“VGA”) is a worldwide epidemic. VGA, also known as
gaming disorder or internet gaming disorder (“IGD”), is characterized by severely
reduced control over gaming habits, resulting in negative impacts on daily functioning,
including personal, social, educational, and occupational responsibilities. Video game
addicts are usually 12 to 20 years of age and spend between 2-10 hours a day playing
video games. Preventing these addicts from playing leads to tension and anger while
allowing them to play leads to long stretches of time playing video games—where these
addicts will forego food or sleep. Id. ¶¶ 1, 2, 5, 195.
VGA/IGD can be diagnosed when an individual engages in gaming activities at
the cost of fulfilling daily responsibilities or pursuing other interests without regard for
the negative consequences. The main features of VGA/IGD are impaired control over
gaming, increasing priority given to gaming over other activities, and continuation or
escalation of gaming despite negative consequences. Id. ¶¶ 197.
The Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”), the manual
used by clinicians and researchers to diagnose and classify mental disorders, recognizes
gaming disorder as a diagnosable condition and recommends further study and more
clinical research and experience. Gaming disorder is the only behavioral addiction
recognized in the DSM-5. The American Psychiatric Association (“APA”), the
organization responsible for publishing the DSM-5, suggests the effects or symptoms of
IGD may be similar to those of other proposed psychological addictions. Id. ¶ 202.
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The APA has developed nine criteria, as outlined in the DSM-5, for characterizing
internet gaming disorder: (1) preoccupation with internet games; (2) withdrawal
symptoms when internet gaming is taken away; (3) tolerance, resulting in the need to
spend increasing amounts of time engaged in internet games; (4) unsuccessful attempts
to control participation in internet games; (5) loss of interests in previous hobbies and
entertainment as a result of, and with the exception of, internet games; (6) continued
excessive use of internet games and despite knowledge of psychosocial problems; (7)
deceiving family members, therapists, or others regarding the amount of internet
gaming; (8) use of internet games to escape or relieve negative moods; and (9)
jeopardizing or losing a significant relationship, job, or education or career opportunity
because of participation in internet games. The DSM-5 acknowledges that several
consequences from gaming disorder arise within only 5 to 12 weeks of beginning to play.
Id. ¶ 200.
Using these nine criteria, the IGD-20 Test was developed and was the first
standardized psychometric tool to assess internet gaming disorder. The IGD-20 Test
includes twenty (20) questions designed to assess the extent of problems caused by
disordered gaming and the degree of symptoms experienced by gamers. The IGD-20 Test
conceptualized disordered gaming according to the six first-order latent components
well-established in behavioral addictions: salience, mood modification, tolerance,
withdrawal symptoms, conflict, and relapse. Id. ¶¶ 206, 207, 208.
The Internet Gaming Disorder Scale-Short-Form (“IGDS9-SF”) was then created,
as a brief standardized psychometric tool to assess gaming disorder. The IGDS9-SF
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includes a total of nine items reflecting the nine clinical criteria identified by the APA. Id.
¶¶ 209, 210.
Another commonly used instrument for the measurement of addiction is the
Problem Video Game Playing (“PVP”) Questionnaire, which is a scale measured by using
a survey containing nine yes-or-no questions. The PVP Questionnaire’s survey questions
are based on the DSM-5 criteria for substance dependence and for pathological gambling,
as well as the literature on addictions. Approximately 3-4% of gamers are addicted to
video games. In a 2021 systematic review and meta-analysis, the global prevalence of
gaming disorder was found to be 3.05%, meaning as many as 60 million people (or more)
are suffering from gaming disorder. These statistics are even higher for minors: 8.5% of
youths aged between 8 and 18 suffer from gaming disorder. Id. ¶¶ 211,212, 213, 214.
Likewise, gaming disorder, with both online and offline variants, has been
included in the International Classification of Diseases (“ICD-11”), the global
categorization system for physical and mental illnesses published by the World Health
Organization. Id. ¶ 201.
IGD addiction does not happen overnight. It is a process that involves a three-
stage cycle akin to substance abuse: binge/intoxication, withdrawal/negative affect, and
preoccupation/anticipation. This cycle becomes more severe as a person continues to use,
causing dramatic changes in brain function that reduce a person's ability to control their
substance use. Id. ¶ 177.
IGD is a growing and prolonged behavioral pattern of gaming, leading to
behavioral and cognitive syndromes. Those affected not only experience increased loss
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of control over gaming, but also increased tolerance and the presence of withdrawal
syndrome if unable to play at increasing periods of time. Id. ¶ 194.
Further, researchers have concluded that excessive use of video games may lead
to negative effects like stress, aggressive behavior, verbal memory deficiency, depression,
lowered cognitive abilities, sleeping disorders, anxiety, and behavioral addiction. Clinical
evidence has shown that subjects addicted to online games experience biopsychological
symptoms and complications. These symptoms may include the traditional symptoms of
drug addiction, such as hangover, changes in mood, adaptability, withdrawal, conflict,
and recurrence symptoms. 3 Id. ¶ 216.
Finally, research shows that video game usage affects and alters the users’ brain.
For instance, more than two brain imaging studies on IGD participants have shown
reduced gray-matter volume. 4 Brain activation studies also have shown that videogame
playing involved changes in reward and loss of control, and that gaming pictures activate
regions similar to those activated by cue-exposure to drugs. Activation studies also show
evidence that individuals with IGD have impaired inhibition, and that video game cues
activate craving, attention, and executive function areas of the brain. These cognitive,
sensory-motor, and emotional processes may be associated with long-term changes to the
brain as a result of prolonged exposure. Structural studies have shown alterations in the
3 Aviv Weinstein & Michel Lejoyeux, Neurobiological mechanisms underlying internet gaming disorder, 22(2)
DIALOGUES CLIN. NEUROSCI. (2020); Virginia Lerida-Ayala, Internet and Video Games: Causes of Behavioral
Disorders in Children and Teenagers, CHILDREN, 10, 86 (2023).
4 Id.
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volume of the ventral striatum (a critical component of motor and reward systems in the
brain) are possible as a result of changes in reward. Id. ¶¶ 226, 227, 228.
This well-supported scientific evidence 5 shows that disruptions in three areas of
the brain are particularly important in the onset, development, and maintenance of
addiction disorders: the basal ganglia, the extended amygdala, and the prefrontal cortex.
These disruptions: (1) enable substance-associated cues to trigger substance seeking (i.e.,
they increase incentive salience); (2) reduce sensitivity of brain systems involved in the
experience of pleasure or reward and heighten activation of brain stress systems; and (3)
reduce functioning of brain executive control systems, which are involved in the ability
to make decisions and regulate one's actions, emotions, and impulses. Comorbidity
studies also indicate that a minor with a diagnosis of ADHD, autism, or oppositional
defiant disorder is at a higher risk of video game addiction, worsening of ability to control
impulsivity, and brain damage. Id. ¶ 215.
III. THE VIDEO GAME INDUSTRY
A. THE VIDEO GAME INDUSTRY AND ARTIFICIAL INTELLIGENCE
The global video game industry occupies a special place in the entertainment and
media market, now being one of the fastest-growing segments. While video games have
been around for over 80 years, the video game industry market has grown exponentially
over the last 14 years. Between 2007 and 2018, the industry has grown by more than $100
5 See, e.g., Aviv Weinstein et al., New Developments in brain research of internet and gaming disorder,
NEUROSCIENCE AND BIOBEHAVIORAL REVIEWS, 75, 314-330 (2017); Xiaoyu Niu, et al., Meta-analysis of
structural and functional brain alterations in internet gaming disorder, FRONT PSYCHIATRY 2022 Oct
25;13:1029344. doi: 10.3389/fpsyt.2022.1029344. PMID: 37033880; PMCID: PMC10074425.
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billion to $137.9 billion. In 2023 alone, the video game industry’s revenue was $365.6
billion globally. This explosive growth is largely credited to the advent of a new revenue
model based on in-game purchases such as “monetization schemes” or
“microtransactions” of downloadable products and Artificial Intelligence. This model is
driven by increasing a minor’s game play time, keeping them engaged to assure
addiction, and increase in-game purchases. See, e.g., Am. Compl. ¶¶ 69, 87, 89, 90, 91, 92,
93, 151, 163.
Artificial Intelligence (“AI”) is a term used to describe a robot which by definition
is a machine, created to mimic human intelligence and expression. Like most products
created by humans, robots and bots are not capable of human expression and do not enjoy
the same constitutional protections of human beings. A defective robotic machine, similar
to an automobile, can be subject to product liability torts, Artificial intelligence (AI) refers
to computer systems or a set of algorithms to mimic intelligent human behavior6 with the
capability of performing complex tasks that historically only a human could do, such as
reasoning, making decisions, or solving problems. A robot is a machine—especially one
programmable by a computer—capable of carrying out a complex series of actions
automatically. A robot (or bots) function is guided by artificial intelligence built into the
robot or bot. which can be guided by an external control device or an embedded
control. 7 Robots may be constructed to evoke human form but robots are task-performing
6 https://www.merriam-webster.com/dictionary/artificial intelligence
7 Id.
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machines, designed with an emphasis on stark functionality, rather than expressive
aesthetics.
AI has been an integral product in the explosive growth of video games. Video
game companies, such as Roblox Corporation, EA, Epic Games, Microsoft, Sony, and
Meta, anticipate AI will revolutionize the video game industry and have dedicated
substantial resources to the research and development of video game AI programs. 8 AI
was first introduced with Atari 2600's early titles such as “Computer Space” and “Pong”
but has come a long way since. See Am. Compl. ¶¶ 85-87, 91-94.
Neural Networks, an AI method that teaches computers to process data,
especially data illegally collected on minors and minor’s game playing responses, in a
way that is inspired by the human brain, which are allowing AI systems to become
smarter and unfortunately for G.D., AI achieved the goal of addicting millions of minors
like G.D.. Popular AI video game methods and techniques include: (1) reinforcement
learning which trains game-playing bots to learn and achieve optimal and desired results
by playing against itself hundreds of times a day for months; (2) behavior trees and finite
state machines, which give AI bots a set of specific tasks or actions, based on the current
situation, like an algorithm or flow diagram to follow; and (3) machine learning, which
uses algorithms to study incoming data (such as data collected on minor gamers),
interpret it, and decide on a course of action in real-time. In other words, minors are
playing with robots in the video game. See Am. Compl. ¶¶ 69, 92, 95-151, 163-175.
8 AI is Changing How we Play...and Monetize Video Games, EVERYREALM, July 4, 2023, available at:
https://www.everyrealm.com/post/ai-is-changing-how-we-play-and-monetize-video-games.
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For instance, OpenAI Five, a computer program developed by OpenAI, uses
reinforcement learning and trained game-playing bots to beat human gamers by having
the bots play against themselves hundreds of times a day for months. The effectiveness
and value of OpenAI Five was demonstrated in 2017, when it defeated Dendi, a
professional Dota 2 player, in a live one-on-one game. OpenAI Five also allows for more
efficient training for larger games where the number of possible positions and
combinations of game mechanics are extremely large. Other AI video games programs
include: (1) AlphaStar which uses supervised learning and reinforcement learning as part
of a deep neural network trained on raw game data and was the first artificial intelligence
program to beat a top professional StarCraft player; (2) Capture the Flag AI by Google’s
DeepMind research company which uses reinforcement learning to train bots to play a
game mode called Capture the Flag, in which the bots were capable of defeating
professional human players after playing 450,000 games; (3) Charisma AI which creates
AI-generated characters that provide detail-rich stories and narratives, which can give
emotional responses, remember past interactions, and use state-of-the-art voices to set
the character apart; (4) Inworld AI, with which Microsoft recently announced a multi-
year partnership, utilizes an AI character runtime engine to create entirely new narratives
with dynamically-generated stories, quests, and dialogue for players to experience 9; and
9 https://developer.microsoft.com/en-us/games/articles/2023/11/xbox-and-inworld-ai-partnership-
announcement/.
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(5) MetaAI which is utilized by Ubisoft to give Non-Playing Characters (“NPCs”)
persistence and purpose in a game world. See Am. Compl. ¶¶ 163-164.
With respect to microtransactions, many video companies employ the assistance
of AI to analyze players’ behaviors and tailor in-game purchases to their interests,
increasing the likelihood that players will make a purchase. For instance, Activision has
a patent (Am. Compl. ¶ 151(b)) designed to drive microtransactions is carried out with
the assistance of AI. The patent is described as system and method is provided that drives
microtransactions in multiplayer video games. The system may include a
microtransaction arrange matches to influence game-related purchases. For example, the
system may match a more expert/marquee player with a junior player to encourage the
junior player to make game-related purchases of items possessed/used by the marquee
player. A junior player may wish to emulate the marquee player by obtaining weapons
or other items used by the marquee player. This is shown in the patent design:
Id. ¶ 151(b), These artificial technologies, and other design techniques, are commonly
used in video game products. Id. ¶¶ 69, 151, 163; see also id. ¶¶ 92, 95-151, 163-175.
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B. NINTENDO: SWITCH & NINTENDO ESHOP
Nintendo is a video game company that designs, develops, manufactures,
publishes, distributes, and supplies both video games and video game consoles,
including the Nintendo Switch and Nintendo Switch Lite, as well as the Nintendo eShop.
Am. Compl. ¶¶ 62, 387.
The Nintendo Switch and Switch Lite are handheld console devices that allow for
both online game play and online game purchases. Through the Switch and Switch Lite,
Nintendo provides users the ability to download certain games from the Nintendo eShop
and play them on the Switch. Id. ¶¶ 388-390.
Nintendo intentionally created its consoles and eShop with psychologically
addictive features and tactics to ensure users would keep playing the console and
purchasing games and in-game content. To do so, Nintendo hires behavioral
psychologists and neuroscientists to design its products and market in the best way
possible to attract more users, especially minors and young adults, to use the consoles
and purchase games and content from the eShop. Id. ¶¶ 395-396, 398, 434, 437, 477, 495,
514, 534, 537, 559, 560, 580, 624, 637.
Once a game is downloaded from the eShop, Nintendo provides a framework for
in-game purchases to initiate and process transactions. This framework enables game
developers to sell microtransactions and/or loot boxes in their games through Nintendo.
Nintendo’s specifically addictive design allows Nintendo—in exchange for enabling
developers to make sales through the eShop—to keep a percentage of all revenue
generated by game sales, microtransactions, and other in-game purchases. Thus, by
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enabling sales through the eShop—even sales of patently addictive and harmful
materials, Nintendo thereby increases its own revenues. Id. ¶¶ 392-396, 637.
Nintendo targeted consumers and purchasers, including minors like G.D., to
purchase and play its video games and video game consoles, and to purchase in-game
items or perks through microtransactions. This targeting was accomplished with the aid
of in-game advertising and “fake” avatar friends, as well as targeted categories on the
Nintendo eShop. Id. ¶¶ 69-70, 536, 637-38, 659.
Though Nintendo is equipped with the knowledge of the addictive risks inherent
in the use of its consoles and eShop, Nintendo has failed to inform the public, users, or
parents of such risks. Nintendo knows that many users—like G.D.—play in excess, but
rather than discourage such play, Nintendo profits off their continued game time and
spending. Nintendo does not adequately inform users of the inherent risks involved with
using the Nintendo consoles and eShop, or that these products were designed to addict
and harm users. Nintendo knew, or by the exercise of reasonable care, should have
known, that use of its products was dangerous, harmful, and injurious when used in a
reasonably foreseeable manner, particularly by youth, and concealed serious safety risk
and information from users. Id. ¶¶ 398, 461, 463, 477-79, 495-97, 499, 514-16, 534, 537-39,
562, 564-65, 580, 593-97, 610-14, 623-25, 639, 641, 644-46.
Additionally, Nintendo acted in concert with Epic Games to distribute, market,
supply, and sell the Fortnite video games and all in-game downloadable content and in-
game purchases contained therein, in order to increase their own revenue by addicting
minors. Nintendo offers a bundle pack for users to purchase the Switch and receive a
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special edition of Fortnite that contains exclusive cosmetic items. Nintendo also acted in
concert with Activision, Infinity Ward, Treyarch, Sledgehammer Games, Microsoft, Epic
Games, DICE, EA, Ubisoft Montreal, Ubisoft, and Google in entering into licensing
agreements to utilize the same patents to keep users—like G.D.—addicted to Nintendo’s
and the other Defendants’ video game products. Id. ¶¶ 63, 68, 660-61, 669.
C. MICROSOFT: XBOX SERIES X, XBOX GAME PASS ULTIMATE, & XBOX CLOUD
GAMING
Microsoft is a technology company that designs, develops, manufactures,
publishes, distributes, supplies, and sells software and hardware—including video
games and video game consoles, and specifically the Xbox Series X, the Xbox Game Pass
subscription service, and Xbox Cloud Gaming. Am. Compl. ¶ 58, 364-65, 368-69.
The Xbox Series X is the fourth generation of consoles in the Xbox series, released
in November of 2020. The Xbox Series X is backwards-compatible with nearly all Xbox
One-compatible games and accessories, allowing users to play any game—even older
games—designed, developed, manufactured, and sold to be played on most Xbox
consoles. In addition to playing physical copies of games on the Xbox Series X, users can
also download games from the Xbox Store, or play through Xbox Cloud Gaming with a
Game Pass subscription. Am. Compl. ¶¶ 365-366. 10
10See also Microsoft’s website, available at: https://www.xbox.com/en-US/consoles/xbox-series-x (last

accessed March 29, 2024).
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Through the Xbox Store, users can download games and certain downloadable
content for said games. Microsoft markets this store as “safe” for the whole family to use,
regardless of the harmful addictive content built into these products. Id. ¶¶ 366-67.
Xbox Game Pass is a paid tiered-subscription service offered by Microsoft that
provides users access to online games. Additionally, the highest tier—Xbox Game Pass
Ultimate—has access to Xbox Cloud Gaming. Cloud Gaming, initially released for beta
testing in 2019 and later launched for subscribers of Game Pass Ultimate in September
2020, is now available to all Game Pass subscribers who pay the $17 per month
subscription fee for the Ultimate tier level. Id. ¶¶ 368-71.
Xbox Cloud Gaming operates by linking a user’s device to a remote server in the
cloud, thereby allowing users to save gameplay in the cloud and access the gameplay
from numerous devices at any given location. With Xbox Cloud Gaming, a user no longer
needs an Xbox console to play games; instead, they can access the games from a number
of devices including mobile devices and laptops. Id. ¶¶ 372-76.
The content library of Xbox Cloud Gaming includes thousands of games spanning
multiple genres and rating categories. Not only are the games in the content library
extensive, but the list is everchanging; thus, players are encouraged to come back to finish
a game before it disappears or check often for new game options. Id. ¶¶ 374, 377.
This tactic, among others, is just one example of a plethora of means Microsoft
utilizes to addict users to its product. In another example, with Xbox Game Pass Ultimate,
users are offered daily, weekly, and monthly “quests” that can be completed for varying
amounts of Microsoft Reward points. Users are thus encouraged to constantly log into
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the platform and are rewarded for doing so. Through such tactics, Microsoft has garnered
over 20 million people to stream games using Xbox Cloud gaming. Id. ¶¶ 378-80.
Each of the millions of individuals utilizing Xbox Cloud Gaming are able to
connect and interact with each other through a feature called “Xbox Social.” This
feature—akin to social media sites—permits users to add friends to a Friends list and then
see what games your friends are playing, or even invite them to join your game. To find
friends, users are encouraged to link to other social media accounts. Users are also able
to chat with each other individually or in groups. This further encourages users to
perpetually log into Cloud Gaming in order to continue conversations with other users,
keep up with friends on specific games, play when their friends are playing, and compete
with friends. Id. ¶¶ 381-85.
Each of these tactics were intentional designs by Microsoft in its consoles, Xbox
Store, Xbox Game Pass, and Xbox Cloud Gaming. These psychologically addictive
features and tactics ensure users would keep playing the console and purchasing games
and in-game content. Such features were designed with the aid of behavioral
psychologists and neuroscientists who provide input on the best way to design and
market Microsoft’s products to attract more users, especially minors and young adults,
to use the consoles and purchase games, content, and subscriptions from the Xbox Store
and Xbox Game Pass. Id. ¶¶ 386, 434, 437, 477, 495, 514, 534, 537, 559, 560, 580, 624, 637.
The addictive features and AI technology built into Microsoft’s products are the
result of patented addictive technologies. For instance, Microsoft currently holds U.S.
Patent No. 702,523 B2 for a way to capitalize on a player's tendency to commit to a
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purchase after investing significant time into a game. With this patent, a user is made
aware of an opportunity to add an achievement to their collection by downloading and
playing a demo or trail version of a particular game, but instead of recording the
achievement upon completion, the game sends a notification to the user stating that the
achievement will not be recorded unless they purchase the full version of the game at
that time. Id. ¶ 151(f).
Microsoft targeted consumers and purchasers, including minors like G.D., to
purchase and play its video games, video game consoles, and subscriptions, and to
purchase in-game items or perks through microtransactions. Doing so enables Microsoft
to increase its revenue through direct sales and by retaining a percentage of games sold
in the Xbox Store or downloadable content purchased through the Xbox framework. This
targeting was accomplished with the aid of in-game advertising and “fake” avatar
friends, as well as targeted categories in the Xbox Store and through Xbox Game Pass. Id.
¶ 69-70, 536, 637-38, 659.
Though Microsoft is equipped with the knowledge of the addictive risks inherent
in the use of its consoles, Xbox Store, Xbox Game Pass, and Xbox Cloud Gaming,
Microsoft has failed to inform the public, users, or parents of such risks. Microsoft knows
that many users—like G.D.—play in excess, but rather than discourage such play,
Microsoft profits off their continued game time and spending. Microsoft does not
adequately inform users of the inherent risks involved with using its products, or that
these products were designed to addict and harm users. Microsoft knew, or by the
exercise of reasonable care, should have known, that use of its products was dangerous,
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harmful, and injurious when used in a reasonably foreseeable manner, particularly by
youth, and concealed serious safety risk and information from users. Id. ¶¶ 386, 461, 463,
477-79, 495-97, 499, 514-16, 534, 537-39, 562, 564-65, 580, 593-97, 610-14, 623-25, 639, 641,
644-46.
Additionally, Microsoft acted in concert with Activision, Infinity Ward, Treyarch,
Sledgehammer Games, Epic Games, DICE, EA, Ubisoft Montreal, and Ubisoft to
distribute, market, supply, and sell the Call of Duty, Fortnite, Battlefield, and Rainbow
Six video games and all in-game downloadable content and in-game purchases contained
therein, in order to increase their own revenue by addicting minors. For example, Fortnite
is playable for free through Microsoft’s Xbox Network, without a subscription to Xbox
Game Pass. Microsoft also acted in concert with Activision, Infinity Ward, Treyarch,
Sledgehammer Games, Nintendo, Epic Games, DICE, EA, Ubisoft Montreal, Ubisoft, and
Google in entering into licensing agreements to utilize the same patents to keep users—
like G.D.—addicted to using Microsoft’s and the other Defendants’ video game products.
Id. ¶¶ 59, 68, 263, 660-61, 668.
D. GOOGLE: GOOGLE PLAY
Google is a technology company that designs, develops, manufactures, publishes,
distributes, and supplies products in several technological areas, including computer
software, consumer electronics, and artificial intelligence. In particular, Google operates
Google Play, an online video game product which functions as a way for users to
download certain games and play them on Android mobile devices. Both Call of Duty
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and Rainbow Six—played by G.D. on their mobile device—are available on Google Play.
Am. Compl. ¶¶ 399, 400.
Google intentionally created Google Play with psychologically addictive features
and tactics to ensure users would keep purchasing games and in-game content. To do so,
Google hires behavioral psychologists and neuroscientists to design its products and
market them in the best way possible to attract more users, especially minors and young
adults, to purchase games and content from Google Play. Id. ¶¶ 404-406, 434, 437, 477,
495, 514, 534, 537, 559, 560, 580, 624, 637.
Once a game is downloaded from Google Play, Google provides a framework for
in-game purchases to initiate and process transactions. This framework enables game
developers to sell microtransactions and/or loot boxes in their games through Google.
This specifically addictive design allows Google—in exchange for enabling developers to
make sales through Google Play—to keep thirty percent (30%) of all revenue generated
by game sales, microtransactions, and other in-game purchases. Thus, by enabling sales
through its products—even sales of patently addictive and harmful materials, Google
thereby increases its own revenues. Id. ¶¶ 111, 401-403, 637.
Google targeted consumers and purchasers, including minors like G.D., to
purchase and play video games using Google Play, and to purchase in-game items or
perks through microtransactions. Id. ¶¶ 69-70, 536, 637-38, 659.
Though Google is equipped with the knowledge of the addictive risks inherent in
the use of Google Play, Google has failed to inform the public, users, or parents of such
risks. Google knows that many users—like G.D.—play and spend in excess, but rather
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than discourage such conduct, Google profits off their continued game time and
spending. Google does not adequately inform users of the inherent risks involved with
using Google Play and downloading games therefrom, or that its products were designed
to addict and harm users. Google knew, or by the exercise of reasonable care, should have
known, that use of its products was dangerous, harmful, and injurious when used in a
reasonably foreseeable manner, particularly by youth, and concealed serious safety risk
and information from users. Id. ¶¶ 404, 407, 461, 463, 477-79, 495-97, 499, 514-16, 534, 537-
39, 562, 564-65, 580, 593-97, 610-14, 623-25, 639, 641, 644-46.
Additionally, Google acted in concert with Activision, Infinity Ward, Treyarch,
Sledgehammer Games, Ubisoft Montreal, and Ubisoft to distribute, market, supply, and
sell the Call of Duty and Rainbow Six video games and all in-game downloadable content
and in-game purchases contained therein, in order to increase their own revenue by
addicting minors. Google also acted in concert with Activision, Infinity Ward, Treyarch,
Sledgehammer Games, Microsoft, Epic Games, DICE, EA, Ubisoft Montreal, Ubisoft, and
Nintendo in entering into licensing agreements to utilize the same patents to keep users—
like G.D.—addicted to Google’s and the other Defendants’ video game products. Id. ¶¶
65, 68, 670.
IV. THE LINK BETWEEN THE DEFENDANTS’ PRODUCTS AND VIDEO GAME ADDICTION
Researchers have concluded that excessive use of video games may lead to
negative effects like stress, aggressive behavior, verbal memory deficiency, depression,
lowered cognitive abilities, sleeping disorders, anxiety, and behavioral addiction. Clinical
evidence has shown that subjects addicted to online games experience biophysical
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symptoms and complications, and may include traditional symptoms of drug or alcohol
addiction like a hangover, changes in mood, adaptability, withdrawal, conflict, and
recurrence symptoms. Brain imaging studies have shown that long-term video game
playing affects the brain regions responsible for reward, impulse control, and sensory-
motor coordination. Other studies have shown excessive use of videogames leads to more
negative consequences on cognitive processes, including multi-second time perception,
inhibition, and decision-making. Brain imaging studies have also shown structural
changes in the brain of video game players, particularly a reduction in white-matter
density and gray-matter volume, demonstrating the effect using video games has on a
player’s brain. Am. Compl. ¶¶ 216-217, 219-234.
Industry leaders like Google, Nintendo, and Microsoft have created a generation
of gaming addicts. Nintendo and Microsoft’s development of their video games consoles,
which they designed to maximize the effect of the addictive design mechanisms in the
video games G.D. played. Gaming companies, like Google, Nintendo, and Microsoft,
know that the best way to get a player to come back and continue using their products
(and playing video games) is to make the game a habit or part of their life. Gaming
companies, like the Platform Defendants, know this and use deceptive and unfair tactics
to keep players coming back to their gaming consoles or, ideally, online cloud gaming
platforms. Many of the people playing video games are minors, or young adults who
began playing as kids, who cannot control their gameplay and are addicted to playing
video games. This is due to Google, Nintendo, and Microsoft’s design of their products.
To be clear, Nintendo and designed their gaming consoles, cloud gaming platforms, and
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cloud gaming services are designed to keep players continuously engaged, and utilize
and rely on the AI patents to study the skill level and behavior of users (including minors)
so that Google, Nintendo, and Microsoft can target the user with specific solicitations to
purchase additional in-game products, content, and other game, and to target users for
prize promotions and rewards designed to create addictive behavior in the user, and to
target users to purchase specific games available for use with Nintendo and Microsoft’s
products. Google did the same with its Google Play. In sum, Google, Nintendo, and
Microsoft manufactured, published, marketed, supplied, and sold video game products
(including but not limited to game consoles and/or cloud gaming platforms) that had
been specifically developed and designed to cause compulsive use and addictive
engagement in the product user. Id. ¶¶6-10, 12-13, 176, 178, 181-192.
VGA and IGD, and the harmful consequences thereof, is expanding due to Google,
Nintendo, and Microsoft’s online cloud gaming products, which are designed to cause
addictive behavior and to be used with video games that are designed to cause addictive
behavior. The Platform Defendants use the same traditional game tactics, such as
feedback loops and reward systems, and patented designs containing addictive features
and technology, that the Game Defendants do to ensure users played longer and spent
more on microtransaction embedded in the game. Cloud gaming products, like Nintendo
eShop, Xbox Game Pass Ultimate, Xbox Cloud Gaming, Xbox Store, and Google Play, are
a type of online gaming console that runs video games on remote servers and streams
them directly to a user’s device at any time. These cloud gaming platforms are designed
to keep users engaged and to work with stand-alone gaming consoles, personal
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computers, and personal mobile devices. Google, Nintendo, and Microsoft designed their
video game products to keep consumers playing—and spending—by enlisting the help
of behavioral psychologists and neuroscientists to conduct state-of-the-art research and
to collect data that they use to develop and design product updates that make their video
game products more addictive. This monetization product design, along with Google,
Nintendo, and Microsoft’s use of algorithms, feedback loops, randomization of product
upgrades, and other addictive design features in their gaming consoles and online
gaming products leads to VGA, IGD, and other injuries in users. Id. ¶¶ 6-16, 92, 108-109,
112-113, 114-118, 128-154, 161-189.
V. THE LINK BETWEEN THE PLATFORM DEFENDANTS’ PRODUCTS AND G.D.’S VIDEO
GAME ADDICTION & INJURIES
Nintendo Switch, Nintendo eShop, Xbox Series X, Xbox Store, Xbox Game Pass
Ultimate, Xbox Cloud Gaming, and Google Play were designed to create addictive
engagement and to be used with addictive video games like Fortnite, Call of Duty,
Rainbow Six, and Battlefield. Google, Nintendo, and Microsoft’s video game products
cause harm to users, including gaming disorder, brain damage, and other mental and
physical injury. G.D. has used, and is unable to stop or limit use of, these the Platform
Defendants’ video game products a result of Defendants’ product designs. G.D. used the
Platform Defendants’ products as they were intended to be used, unaware that they were
designed to be addictive and would cause harm. G.D. has been harmed due to Google,
Nintendo, and Microsoft’s intentional, wrongful, deceptive, and negligent conduct
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involving the development, design, manufacture, production, publishing, supply, and
sale of their video game products. See, e.g., Am. Compl. ¶¶ 19-24, 237, 239-40, 251-254.
LEGAL STANDARD
When a defendant files a motion to dismiss, the Court reviews the complaint to
determine whether it contains sufficient facts which, if accepted as true, state a claim for
relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A claim is plausible where the plaintiff pleads factual content that would allow a court to
draw the reasonable inference that defendant is liable for the misconduct alleged. Ashcroft
v. Iqbal, 556 U.S. 662, 677-678 (2009). A complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts
that would entitle them to relief. Twombly, 550 U.S. at 583; Levy v. Ohl, 477 F.3d 988, 991
(8th Cir. 2007).
OPPOSITION ARGUMENT11
I. SECTION 230 OF THE COMMUNICATIONS DECENCY ACT AND THE FIRST AMENDMENT
DO NOT APPLY TO THE PLATFORM DEFENDANTS’ CONDUCT.
This case is about conduct, not content – product defects, not expression. Defendants
designed and distributed defective video game products that harm kids. Plaintiffs seek
to hold them accountable for doing so. Neither Section 230 of the Communications
Decency Act (“Section 230”) nor the First Amendment bars Plaintiffs’ claims against
11Google, Nintendo, and Microsoft have, in moving for dismissal, adopted and incorporated the Motion to
Dismiss (Dkt. 102) and Memorandum in Support (Dkt. 103) filed by the Game Defendants as support for
dismissal on their behalf. Plaintiffs, therefore, incorporate by reference and adopt all arguments opposing
dismissal against the Game Defendants to this response and state that no grounds exist for dismissal of any
claim, against any defendant.
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Microsoft, Nintendo, or Google. Regardless, Section 230 and the First Amendment are
affirmative defenses that the Court should not resolve in Defendants favor on a motion
to dismiss.
A. SECTION 230 AND THE FIRST AMENDMENT DO NOT PROTECT GOOGLE,

NINTENDO, AND MICROSOFT.
Plaintiffs allege that Google, Nintendo, and Microsoft “defectively designed” their
video game products to “addict minors and young adults who were particularly unable
to appreciate the risks posed by the products and were particularly susceptible to harms
from those products,” and to “take advantage of the chemical reward system” of minor
users’ brains “to create addictive engagement, compulsive use, and additional mental
and physical harm.” Am. Compl. ¶¶ 434, 437.
Specifically, Plaintiffs challenge “the patented design strategies and other
features” that Google, Nintendo, and Microsoft embedded in their products “to make
them initially and progressively more stimulative, to maximize young consumers’ usage
time and consequently addict them.” Id. ¶ 439. These defective features include
“microtransactions,” id. ¶¶ 95-113, and related design strategies that incentive users to
make impulsive purchases of in-game virtual items by, for example, suggesting that a
special item is only available for a short amount of time, id. ¶¶ 109, 117, or suggesting
that only a small number of special items are available, id. ¶ 117; “predatory monetization
schemes,” such as “loot boxes” that contain a random selection of virtual items—likely
determined by algorithms—which may or may not give users who purchase them an
advantage in the game, id. ¶¶ 129-38, “rubber-banding” algorithms that dynamically
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adjust the prices and value of in-game virtual items based on individual user data related
to their spending power and cost sensitivity, id. ¶¶ 120-27, 139-44, and “pay-to-win”
models that give users who are willing to shell out more money a disproportionate
advantage over other users, id. ¶¶ 145-48; and other patented addictive technologies,
including algorithms that capitalize on a user’s tendency to purchase an item after
investing significant time into the game, id. ¶ 151 (citing U.S. Patent No. 702,523 B2),
algorithms that allow new users to purchase in-game support more cheaply than
experienced users, id. (citing U.S. Patent No. 9,795,886 Bl), and algorithms that encourage
users to make purchases outside of a game to receive in-game benefits, id. (citing U.S.
Patent No. 10,252,170 B2). By designing and distributing their products with these
predatory monetization schemes and patented addictive technologies, Google, Nintendo,
and Microsoft “ensured that they could increase and extend profits by addicting their
most vulnerable users.” Id. ¶ 234.
Plaintiffs allege that because of these defective features, Google, Nintendo, and
Microsoft’s products “fail to meet the safety expectations of ordinary consumers when
used in an intended or reasonably foreseeable manner” and “create[] an inherent risk of
danger, specifically, a risk of abuse, addiction, and compulsive use by youth which can
lead to a cascade of harms.” Id. ¶¶ 438, 440. Specifically, Plaintiffs allege that 13-year-old
G.D. suffered serious injuries “[a]s a direct and proximate result of Defendants’
respective products’ defective design,” including “mental health diagnoses, physical pain
in their hands, elbow, and shoulders, diminished social interactions, a drop in their
grades and inability to attend school, depression, a lack of interest in other
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sports/hobbies, a loss and/or lack of friends at school, withdrawal symptoms such as
rage, anger, and physical outbursts, pain and suffering, mental anguish, and emotional
distress.” Id. ¶ 449.
Plaintiffs further allege that none of Google, Nintendo, and Microsoft’s products
contain any kind of warning that the products “pose an unreasonable risk of harm and
addiction to users, particularly minors and young adults”—nor have Google, Nintendo,
and Microsoft ever warned the public of such risks. Id. ¶ 460. Specifically, Google,
Nintendo, and Microsoft have failed to inform users that their products cause addiction
and compulsive use; that their products “harvest and utilize user data in such a way that
increases a user’s risk of addiction”; that the “feedback loops and strategized patented
material” in their products “are designed to promote increasingly stimulative and
alarming content to encourage compulsive engagement by the user”; that new users of
their products “can identify themselves as minors, begin to use the product[s], and do so
indefinitely, without any time or usage limitations, without any spending limitations,
without ever receiving a safety warning, and without ever having to provide information
so that each Defendant can warn the users’ parents or guardians”; that the likelihood and
severity of harms from their products is greater for minors and young adults; and that
the “likelihood and intensity of these harmful effects is exacerbated by the interaction of
each product’s features with one another and by patented technology and code design,
some of which is currently publicly unknown and hidden from users.” Id. ¶ 464. “Each
Defendant’s failure to adequately warn Plaintiffs about the risks of its defective products
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was a proximate cause and a substantial factor in the injuries sustained by Plaintiffs.” Id.
¶ 467.
Google, Nintendo, and Microsoft’s attempt to avoid responsibility for designing
their video games and platforms to addict children by mischaracterizing Plaintiffs’ claims
as an attempt to censor protected speech. Instead of accepting the allegations as pled,
Google, Nintendo, and Microsoft insist that Plaintiffs covertly seek to regulate content,
expression, and ideas. But Plaintiffs do not seek to impose liability for any speech—
protected or otherwise. Unlike in nearly every case Google, Nintendo, and Microsoft cite,
Plaintiffs do not seek to hold them liable for any particular content. Rather, Plaintiffs’
claims are about the defective and unreasonably dangerous design elements of Google,
Nintendo, and Microsoft’s products that make them addictive, and about their failure to
warn of their products’ risks to children and youth.
“Internet Gaming Disorder” (IGD) is a diagnosis recognized by both the American
Psychiatric Association and the World Health Organization. 12 According to a published
12 According to the World Health Organization (WHO), “[g]aming disorder is defined in the 11th Revision
of the International Classification of Diseases (ICD-11) as a pattern of gaming behavior (“digital-gaming”

or “video-gaming”) characterized by impaired control over gaming, increasing priority given to gaming
over other activities to the extent that gaming takes precedence over other interests and daily activities, and
continuation or escalation of gaming despite the occurrence of negative consequences.” The WHO states
that “for gaming disorder to be diagnosed, the behaviour pattern must be severe enough that it results in
significant impairment to a person's functioning in personal, family, social, educational, occupational or
other important areas….” The decision on inclusion of gaming disorder in ICD-11 “is based on reviews of
available evidence and reflects a consensus of experts from different disciplines and geographical
regions that were involved in the process of technical consultations undertaken by WHO in the process of
ICD-11 development.”
(https://www.who.int/standards/classifications/frequently-asked-questions/gaming-
disorder#:~:text=Gaming%20disorder%20is%20defined%20in,the%20extent%20that%20gaming%20takes
) (accessed on 3/24/24) (emphasis added). See also Am. Compl. ¶¶ 201, 202.
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paper in the peer-reviewed journal Addictive Behaviors, in the United States, “even by
conservative estimates . . . at least 5 million (probably many more) meet criteria for
Internet Gaming Disorder,” and those suffering with IGD “experience[e] personal, social,
and academic difficulties.”13 The criteria for diagnosing IGD parallel the criteria for
diagnosing other addictions like gambling disorder, including “preoccupation, tolerance,
withdrawal, and continued use despite clear decrements to key areas of functioning.”14
“Video games have a more pronounced addictive effect in young children[.]”15 Multiple
published and peer-reviewed studies document brain changes associated with IGD.16
13Faust, et al., Internet Gaming Disorder: A Sign of Our Times or Time for Attention?, Addictive Behaviors
77 (2018), 272–274. See also Am. Compl. ¶¶ 193, 196, 204, 213.
14Coyne, et al., Pathological Video Game Symptoms from Adolescence to Emerging Adulthood: A 6-Year
Longitudinal Study of Trajectories, Predictors, and Outcomes, Developmental Psych 2020, Vol. 56, No. 7,
1385–1396 at 1386. See also Am. Compl. ¶¶ 212, 230.
15 Griffiths, Internet and Videogame Addiction, Adolescent Addiction, Epidemiology, Assessment and
Treatment, Practical Resources for the Mental Health Professional (2008), 231-267. See also Wittek, et al.,
Prevalence and Predictors of Video Game Addiction: A Study Based on a National Representative Sample
of Gamers, Int. J. Ment. Health Addiction (2016) 14:672–686 (“Respondents in the youngest age group were
more likely to belong to the addicted group than the middle age (2.9 times more likely) and the oldest age
group (4 times more likely).”); Singh, et al., Prevalence and Risk Factors Associated with Internet Gaming
Disorder: A Cross‑Sectional Study, Ind. Psychiatry J2021;30:S172-7 (“Multivariate logistic regression found
IGD to be significantly associated with male gender and lower age at first gameplay.”). See also Am. Compl.
¶¶ 216-234.
16 Niu, et al., Meta-Analysis of Structural and Functional Brain Alterations in Internet Gaming Disorder,
Front. Psychiatry 13:1029344 (2022). (“Many neuroimaging studies have reported abnormalities in brain
structure and function in internet gaming disorder (IGD). . . . This meta-analysis showed structural and
functional impairments in brain regions related to executive control, cognitive function and reward-based
decision making in IGD.”). See also Am. Compl. ¶¶ 216-234.
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And multiple peer-reviewed publications have described IGD as an “addiction,”17 noting
its similarities to addictions to nicotine, alcohol, and gambling. 18
Citing numerous cases where courts have held that video games are protected
expression, Google, Nintendo, and Microsoft take the absolutist position that Section 230
and the First Amendment bars any claim for injuries caused by their video games
products. But the common law of torts can be used to hold companies liable for their
products and for their conduct in designing and marketing those products—even if the
products or conduct implicate speech—without offending Section 230 or the First
Amendment. Section 230 only applies to “liability arising from content created by third
parties.” E. Coast Test Prep LLC v. Allnurses.com, Inc., 971 F.3d 747, 752 (8th Cir. 2020)
(emphasis added). Likewise, the First Amendment limits tort claims only when they seek
to suppress or compel the expression or dissemination of ideas or content. Brown v. Ent.
Merchants Ass'n, 564 U.S. 786, 790 (2011)). Here, Plaintiffs are not targeting Nintendo,
Microsoft, or Google’s ideas or content.
17 See references cited in Ko, Internet Gaming Disorder, Curr Addict Rep (2014) 1:177–185; Griffeths, et al.,
Videogame Addiction and Its Treatment, J. Contemp. Psychother. Vol. 39, pp. 247–253 (2009); Hyun, G. J., et
al., Risk Factors Associated with Online Game Addiction: A Hierarchical Model, Computers in Human
Behavior, 48, 706–713 (2015); Gentile, Pathological Video-Game Use Among Youth Ages 8 to 18: A National
Study, Psych Sci., Vol 20, No. 5, 594-602 (2009). See also Am. Compl. ¶¶ 201-202.
18Zheng, et al, Similarities and differences between internet gaming disorder and tobacco use disorder: A
large-scale network study. Addiction Biology, Vol. 27, No. 2 (2022); Han, et al, Differences in functional
connectivity between alcohol dependence and internet gaming disorder, Addictive Behaviors, Vol. 41, pp.
12-19 (2015); Fauth-Buhler, et al Neurobiological correlates of internet gaming disorder: Similarities to
pathological gambling, Addictive Behaviors, Vol. 64, pp. 349-356 (2017). See also Am. Compl. ¶¶ 202-212, 230-
232.
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There is no constitutional right to design and distribute defective and
unreasonably dangerous products, much less to profit by knowingly addicting children
to those products. Google, Nintendo, and Microsoft claim to be in the business of
“creating and publishing speech” and “disseminating protected speech,” Platform Defs’
Brf. p. 24, but neither the right to make “expressive choices” in designing products like
video games, video game consoles, or online video game services, nor the right to make
“editorial judgments” in disseminating those products, Platform Defs’ Brf. p. 21, broadly
insulates those products’ unsafe features from liability based on conduct, rather than
content. Nor do those features constitute protected speech—the algorithmic “decisions”
at issue here are made by machines, not humans, and they have no Section 230 or First
Amendment protection.
B. GOOGLE, NINTENDO, AND MICROSOFT’S UTILIZATION OF ARTIFICIAL

INTELLIGENCE DOES NOT ENTITLE THEM TO SECTION 230 OR FIRST
AMENDMENT PROTECTION.
Plaintiffs have alleged that Google, Nintendo, and Microsoft collectively used AI
to recognize game player behavior which in turn uses artificial intelligence to send a
response back to the gamer. Am. Compl. ¶¶ 69, 151, 163. In fact, almost every interaction
in modern video games is controlled by AI. Section 230 does not provide immunity or
protection to AI computer programs or machines which are utilized by Google,
Nintendo, and Microsoft in the design and creation of their video game products and
downloadable content. The most basic component of freedom of expression is the right
to freedom of speech. Freedom of speech may be exercised in a direct (words) or a
symbolic (actions) way. Freedom of speech is recognized as a human right under article
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19 of the Universal Declaration of Human Rights. Since AI is not human there is no
Section 230 or First Amendment protection.
Additionally, other courts have declined to grant “human rights” to AI. Recently,
the Ninth Circuit addressed the issue of whether an AI created photo could be
copyrighted, and ultimately, declined copyright protection of AI created images. Thaler
v. Perlmutter, No. CV 22-1564 (BAH), 2023 WL 5333236, at *1 (D.D.C. Aug. 18, 2023).
Similarly, Section 230(c), 47 U.S.C. § 230, states “[n]o provider or user of an
interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider.” 47 U.S.C. §
230(c)(1) (1998); see also G.G. v. Salesforce.com, 76 F.4th 544, 565 (7th Cir. 2023). Google,
Nintendo, and Microsoft are urging the Court to cloak AI in Section 230 immunity which
would require the Court to give AI the characteristics of the ability to demonstrate good
faith coupled with the ability to not follow the predesigned algorithms written into the
very code of AI existence. For the following reasons, Google, Nintendo, and Microsoft
are not protected by Section 230.
Section 230(c)(1) protects a company from publisher liability only when content is
“provided by another information content provider.” Nowhere does this provision
protect a company that is itself the information content provider. See Fair Housing Council
Of San Fernando Valley v. Roommates.Com, LLC, 521 F. 3d 1157, 1165 (9th Cir. 2008) (aka
“The Roommates Test”). Along the same lines as the court reasoned in Fair Housing,
Google, Nintendo, and Microsoft are the information content provider, and they cannot
escape liability for their own AI generated content. Additionally, AI did not exist when
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the CDA was passed in 1996, therefore the statute is silent on whether to afford protection
to AI. Arguably the legislative intent could not have meant to extend immunity to AI,
especially AI that has been weaponized to addict children.
As Courts have repeatedly said, Section 230 (c)(1) “does not create an ‘immunity’
of any kind.” City of Chicago v. StubHub, Inc., 624 F.3d 363, 366 (7th Cir. 2010), citing
Chicago Lawyers Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 669-
71 (7th Cir. 2008); Doe v. GTE Corp., 347 F3d 655, 660 (7th Cir. 2003). Rather, Section 230
(c)(1) “limits who may be called the publisher of information that appears online.”
StubHub, 624 F.3d at 366. In this way it functions as an affirmative defense. GTE Corp.,
347 F.3d at 657. That affirmative defense requires a civil defendant to establish three
elements: 1) the defendant is the “provider or user of an interactive computer service,” 2)
the defendant is being “treated as the publisher or speaker,” and 3) the “information
provided by another information content provider.” 47 U.S.C. § 230 (c)(1).
Here, Google, Nintendo, and Microsoft, by raising their affirmative defense in a
motion to dismiss, are improperly attempting to shift the burden of defendants’ duty to
prove an affirmative defense onto the Plaintiffs by attacking the pleadings. Regardless,
an affirmative defense is grounds for dismissal at the pleading stage only if the plaintiff
pleads itself out of court—that is, admits all the ingredients of an impenetrable defense.
See Lackie Drug Store, Inc. v. Ark. CVS Pharm., LLC, Case No. 4:20-cv-1515-JM, 2022 U.S.
Dist. LEXIS 199594, *12 (E.D. Ark. Nov. 2, 2022); Weatherly v. Ford Motor Co., 994 F.3d 940,
943 (8th Cir. 2021). Plaintiffs have not pled themselves out of court here.
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Regardless, and contrary to Google, Nintendo, and Microsoft’s claims, Plaintiffs
do not allege any content allegations against any Defendant as a publisher or speaker.
Plaintiffs' claims do not depend on any of the Defendants having published or spoken
anything nor any content. Plaintiffs seek to hold Google, Nintendo, and Microsoft
accountable for designing video game products and for supporting an AI engine that
hosted addictive algorithms for the sole purpose of expanding Google, Nintendo, and
Microsoft’s business through the addiction of Plaintiffs and many others. This includes
other game creators and co-defendants with technology, designing tailored software with
AI for video games played by the Plaintiffs that were specifically designed to keep minors
addicted to video games, aiding in the method of delivery by hosting the AI, assisting
game developers and co-defendants in managing their customer relationships,
optimizing their business operations, enhancing their profitability, and enabling game
developers and platforms "to scale its operations and increase the number of addicted
minors. See Am. Compl. ¶¶ 108, 124, 137, 142, 161, 547, 637. In other words, Plaintiffs are
seeking to hold Google, Nintendo, and Microsoft "liable under for its own acts or
practices, rather than for publishing content created by another.” Cf. G.G. v. Salesforce.com,
76 F.4th 544, 567 (7th Cir. 2023).
Even if the Court proceeds with Section 230 analysis, Google, Nintendo, and
Microsoft would still fail to have immunity based upon a Section 230 conduct exception.
The CDA outlines the obligations of interactive computer services as follows:
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OBLIGATIONS OF INTERACTIVE COMPUTER SERVICE
A provider of interactive computer service shall, at the time of entering

an agreement with a customer for the provision of interactive computer
service and in a manner deemed appropriate by the provider, notify
such customer that parental control protections (such as computer
hardware, software, or filtering services) are commercially available
that may assist the customer in limiting access to material that is
harmful to minors. Such notice shall identify, or provide the customer
with access to information identifying, current providers of such
protections.
Thus, Google, Nintendo, and Microsoft have an express codified duty to provide
notification to parents of controls and assist the parents of limiting access to material that
is harmful to minors.
Here, Plaintiffs have plead that the Platform Defendants have not done that and
that, to the extent Google, Nintendo, and Microsoft purport to have parental controls,
have alleged that those parental controls have not been effective for parents to limit or
control minors’ video game play. See, e.g., Am. Compl. ¶¶ 443, 548. Other wrongful
conduct pled by Plaintiffs include allegations that Google, Nintendo, and Microsoft
engaged in deceptive and unconscionable trade practices, and such practices are
prohibited by the Arkansas Deceptive Trade Practices Act ("ADTPA"). See, e.g., id. ¶¶ 543,
545, 551, 580-582, 589. Plaintiffs also allege Google, Nintendo, and Microsoft have
engaged in negligent, fraudulent, and outrageous conduct—particularly with respect to
their actions regarding users under the age of 13 due to the recognized safety risks posed
to such users from interactive online products—and that conduct has harmed G.D. and
the Dunns. See, e.g., id. ¶¶ 549, 583. Plaintiffs’ allegations involve and are specific to
Google, Nintendo, and Microsoft’s respective products—and their acting in concert with
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the other Defendants to cause such harm. See, e.g., id. ¶¶ 595, 597, 668-670. These
allegations all relate to Google, Nintendo, and Microsoft’s actions and conduct in relation
to the design and dissemination of their product, not speech or content. Accordingly,
Section 230 and the First Amendment do not apply.
C. THE FIRST AMENDMENT DOES NOT PREVENT LIABILITY FOR DESIGNING AND
DISSEMINATING DEFECTIVE PRODUCTS – EVEN PRODUCTS THAT TOUCH UPON
SPEECH.
The First Amendment does not provide “special immunity from the application of
general laws” for those who engage in some activities that ordinarily receive
constitutional protection. Cohen v. Cowles Media Co., 501 U.S. 663, 670 (1991); Planned
Parenthood Found. Of Am., Inc. v. Newman, 51 F.4th 1125, 1134 (9th Cir. 2022) (“Invoking
journalism and the First Amendment does not shield [journalists] from liability for
violations of laws applicable to all members of society.”). Google, Nintendo, and
Microsoft’s position that the First Amendment protects them from liability “for
disseminating protected speech,” Platform Defs’ Brf., p. 24, obscures the point: Google,
Nintendo, and Microsoft’s tortious conduct is not constitutionally protected speech.
Plaintiffs allege that Google, Nintendo, and Microsoft are liable for designing
defective and unreasonably dangerous products; for concealing, misleading, and failing
to warn customers of the risks of using those products; and for failing to provide adequate
instructions as to their safe use—just as any product maker would be. Despite
Defendants’ arguments to the contrary, these claims do not implicate the First
Amendment. Like journalists, video game creators and platforms “ha[ve] no special
privilege to invade the rights and liberties of others.” Cohen, 501 U.S. at 670.
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Courts have made clear that the First Amendment does not bar a tort claim—even
one that touches upon protected expression—provided the plaintiff is not seeking to
impose liability for simply expressing an idea. See, e.g., Dietemann v. Time, Inc., 449 F.2d
245, 249 (9th Cir. 1971); Cohen, 501 U.S. at 670; Planned Parenthood, 51 F.4th at 1134; see also
Risenhoover v. England, 936 F. Supp. 392, 405 (W.D. Tex. 1996) (“Practically every tort claim
involves some form of communication. A plaintiff is not divested of a cause of action by
the First Amendment merely because a tortfeasor speaks.”). In Dietemann, for example,
the Ninth Circuit held that a newspaper could be liable for invasion of privacy where its
journalists used subterfuge to enter a private home and secretly recorded an individual
suspected of committing a crime. 449 F.2d at 249. The court rejected the newspaper’s
argument that the First Amendment shielded it from liability because its journalists were
engaging in a protected activity—gathering news—when they committed the tort. Id.
(“The First Amendment has never been construed to accord newsmen immunity from
torts or crimes committed during the course of newsgathering.”). Similarly, in Cohen, the
Supreme Court held that a newspaper could be liable in promissory estoppel for printing
the name of a source whose identity it had promised to keep confidential. 501 U.S. at 670.
Critical to the Court’s analysis was the fact that promissory estoppel is a common law
rule of general applicability, not one crafted to single out the press. Id.; see also Planned
Parenthood (upholding a jury verdict against journalists because “[n]one of the laws [they]
violated was aimed specifically at journalists or those holding a particular viewpoint”).
Similarly, in this case, Google, Nintendo, and Microsoft cannot use the First Amendment
(or Section 230) to shield their bad conduct.
-40-
To be clear, Plaintiffs do not allege that the Google, Nintendo, and Microsoft’s
products are addictive based on any “ideas,” “plots,” “characters,” or other “content”
contained in their video games or on their platforms. Plaintiffs’ claims would not require
the Google, Nintendo, and Microsoft to refrain from marketing their products as long as
they provided adequate warnings about the risks of those products. Plaintiffs’ claims
have no impact on speech, expression, or content.
Yet, Defendants try to rewrite Plaintiffs’ allegations in order to blur the line
between claims targeting ideas or content and claims targeting unreasonably dangerous
(and avoidable) design features and inadequate warnings. The latter, which are the
claims brought by Plaintiffs, are viable.
D. GOOGLE, NINTENDO, AND MICROSOFT DO NOT HAVE A CONSTITUTIONAL

RIGHT TO DESIGN DEFECTIVE PRODUCTS AND SERVICES.
Microsoft, Nintendo, and Google insist that because their products contain some
content that constitutes protected expression, Plaintiffs’ claims must be about that
content. But, as in other cases where a defendant’s business involved some protected
expression, “[t]here is a clear distinction between the alleged conduct on which the
plaintiffs’ liability may rest”—here, the defective design of the Google, Nintendo, and
Microsoft’s products— “and the evidence used to establish the elements of the claims”—
the protected expression that may be contained in the video games the Platform
Defendants’ products are intended to be used with. See Allen v. Am. Cyanamid, 527 F.
Supp. 3d 982, 994 (E.D. Wis. 2021). In Allen, a lead paint manufacturer sought summary
judgment of “every claim that [wa]s based upon protected First Amendment activity,”
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arguing that the plaintiffs sought to hold it liable for “truthful commercial speech, in the
form of advertisements,” and other “constitutionally-protected conduct.” Id. The court
rejected that argument because the plaintiffs’ alleged injuries stemmed from the
defendant’s “unreasonably dangerous product,” not from its protected expression
related to that product. Id. Allen thus illustrates that a product liability claim that touches
upon protected expression speech can move forward as long as the liability arises from
the defendant’s defective product design, not its expression. See id.; see also Martinez v.
Metabolife Internat., Inc., 113 Cal. App. 4th 181, 188 (Cal. Ct. App. 2003) (rejecting
application of anti-SLAPP statute because, inter alia, the defendant “cite[d] no authority
holding [that] the First Amendment protects the manufacturer or seller of an unsafe
product from liability for injuries caused by defects in that product”).
Even if holding Defendants liable for the harms caused by their defective products
were to have “incidental effects” on some protected expression, the First Amendment
would not bar Plaintiffs’ claims. See Cowles, 501 U.S. at 669. It is black letter law that “the
First Amendment does not prevent restrictions directed at commerce or conduct from
imposing incidental burdens on speech.” Int'l Outdoor, Inc. v. City of Troy, Michigan, 974
F.3d 690, 705 (6th Cir. 2020) (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011)).
This principle holds true even if the person engaging in the conduct “intends thereby to
express an idea.” Lichtenstein v. Hargett, 83 F.4th 575, 583 (6th Cir. 2023) (quoting United
States v. O’Brien, 391 U.S. 367, 376 (1968)).
This distinction between torts that are aimed at ideas and those that are aimed at
conduct (but affect speech) is analogous to the distinction that applies to statutory
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restrictions on speech. “When ‘speech’ and ‘nonspeech’ elements are combined in the
same course of conduct, a sufficiently important governmental interest in regulating the
non-speech element can justify incidental limitations on First Amendment freedoms.”
O’Brien, 391 U.S. at 376. “It is evident beyond the need for elaboration that a State’s
interest in safeguarding the physical and psychological well-being of a minor is
compelling.” New York v. Ferber, 458 U.S. 747, 756-57 (1982) (cleaned up); see also Ginsberg
v. State of N.Y., 390 U.S. 629, 639-40 (1968) (holding that the government’s interest in the
“well-being of its youth” and in supporting “parents’ claim to authority in their own
household” justified the regulation of otherwise protected expression”).
E. GOOGLE, NINTENDO, MICROSOFT DO NOT HAVE A CONSTITUTIONAL

AND
RIGHT TO CONCEAL, MISLEAD, OR PROVIDE INCOMPLETE INFORMATION
ABOUT THE RISKS OF USING THEIR DEFECTIVE PRODUCTS.
Google, Nintendo, and Microsoft argue that the First Amendment also “bars
claims premised on an alleged failure to warn about the purportedly addictive or harmful
nature of [video] games,” contending that “[c]ourts routinely dismiss claims that would
require those who publish or disseminate speech to warn about its supposed dangers.”
Platform Defs’ Brf. p. 26. But, unlike the cases relied upon by the Platform Defendants,
this case is about the failure to warn about dangerous product designs or the risk of harm
(addiction) based on product design elements---not dangerous ideas or content. Therefore,
contrary to Defendants’ position, Plaintiffs’ failure to warn claim is entirely content
agnostic. Plaintiffs do not allege that Defendants should have warned users about any
particular content contained in their video game products (or the video games played
and accessed using those products). Rather, Plaintiffs seek to hold Google, Nintendo, and
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Microsoft liable for their failure to warn users about the risks of the defectively designed
features in their respective video game products 19 that make the games dangerously
addictive and harmful to users (particularly minors) developing brains. See, e.g., Am.
Compl. ¶¶ 287, 291, 318, 320, 361, 363, 593-97, 610-14, 623-25.
Google, Nintendo, and Microsoft attempt to avoid liability for their failure to warn
customers about the defective and unreasonably dangerous products they hosted on their
platforms by comparing those defective products to “books” and their platforms to
“bookstores.” See Platform Defs’ Brf. p. 26 (“Just as plaintiffs could not sue a bookstore
for selling addictive books, they could not sidestep the First Amendment by alleging that
the bookstore failed to warn the public that a popular book series may lead to an
unhealthy addiction to reading.”) But this comparison makes no sense—no book contains
“predatory monetization schemes” and patented addictive technologies like those
embedded in the products at issue here. See Am. Compl. ¶¶ 129-38, 151.
Indeed, “there is no case authority for the proposition that the First Amendment
provides immunity for defendants in failure to warn cases.” In re Factor VIII or IX
Concentrate Blood Prod. Litig., 25 F. Supp. 2d 837, 848 (N.D. Ill. 1998). “[A]dopting
[Defendants’] view of the First Amendment would ignore decades of tort law, dating
back to at least 1892, holding that manufacturers can be liable for failing to warn
19As a reminder, the vídeo game products at issue in this case are: (1) Nintendo’s Switch and eShop; (2)
Microsoft’s Xbox Series X, Xbox (Microsoft) Store, Xbox Game Pass Ultimate, and Xbox Cloud Gaming; and
(3) Google’s Google Play. See SOF, §III(B)-(D), supra.
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consumers about the dangers of their products.” See id. (citing Schubert v. J.R. Clark Co.,
49 Minn. 331, 336, 51 N.W. 1103, 1104 (1892)).
Indeed, “there is no case authority for the proposition that the First Amendment
provides immunity for defendants in failure to warn cases.” In re Factor VIII or IX
Concentrate Blood Prod. Litig., 25 F. Supp. 2d at 848. “[A]dopting [the Platform
Defendants’] view of the First Amendment would ignore decades of tort law, dating back
to at least 1892, holding that manufacturers can be liable for failing to warn consumers
about the dangers of their products.” See id. (citing Schubert v. J.R. Clark Co., 49 Minn. 331,
336, 51 N.W. 1103, 1104 (1892)).
F. THE DEFECTIVE FEATURES IN GOOGLE, NINTENDO, AND MICROSOFT’S PRODUCTS

ARE NOT PROTECTED EXPRESSION.
Google, Nintendo, and Microsoft’s First Amendment defense ultimately boils
down to one argument: that Plaintiffs’ claims are barred because they target video games,
and video games are constitutionally protected speech. See Platform Defs’ Brf. p. 24 (citing
Brown, 564 U.S. at 790). But Plaintiffs’ harms do not stem from any messages, ideas,
subject matter, or content contained in the video games designed and hosted by
Defendants. See id. at 790-91. They stem from defective features that Defendants designed
to addict young users and maximize engagement and profit.
These defective features include:
• “Microtransactions,” Am. Compl. ¶¶ 95-113, and related design strategies

that incentive users to make impulsive purchases of in-game items by, for
example:
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o Suggesting that a special item is only available for a short amount of

time and must be obtained within that small window of time, id. ¶¶
109, 117;
o Suggesting that only a small number of special items are available

and that users must act quickly if they want that item, id. ¶ 117;
o Convincing users they are about to win, but only if they keep
playing, id.;
o Encouraging users to keep playing to get back money they lost, id. ¶
117;
• “Predatory monetization schemes,” such as:
o “Loot boxes” that contain a random selection of virtual items—likely

determined by algorithms—which may or may not give users who
purchase them an advantage in the game, id. ¶¶ 129-38;
o “Rubber-banding” algorithms that dynamically adjust game

difficulty, as well as prices and value of virtual items, based on
individual user data, including spending power and cost sensitivity,
id. ¶¶ 120-27, 139-44;
o “Pay-to-win” models that give users who are willing to shell out
more money a disproportionate advantage over other users, id. ¶¶
145-48;
• Patented addictive technologies, including:
o “Upsell messages” that encourage users to make in-game purchases

when they face a difficult scenario, id. ¶ 151 (U.S. Patent No.
8,360,866 B2);
o Algorithms that customize messages for each user based on that

user’s individual “behavior data,” id. (U.S. Patent No. 10,099,140 B2);
o Algorithms that modify the difficulty of multiplayer matches to

encourage in-game purchases, id. (U.S. Patent No. 9,789,406 82);
o Algorithms that use a “user spend parameter value” to “determine

which users should be provided with access to an exclusive virtual
-46-
section of the online game” in order to “extract additional value from

users inclined to spend money,” id. (U.S. Patent No. 9,623,335 Bl);
o Algorithms that modify the pricing of in-game virtual items based

on users’ experience and progress, id. (U.S. Patent No. 9,138,639 Bl);
o Algorithms that capitalize on a user’s tendency to purchase an item

after investing significant time into the game, id. (U.S. Patent No.
702,523 B2);
o Algorithms that allow new users to purchase in-game support more

cheaply than experienced users, id. (U.S. Patent No. 9,795,886 Bl);
o Algorithms that encourage users to make purchases outside of a

game to receive in-game benefits, id. (U.S. Patent No. 10,252,170 B2);
o Gaming devices that capture audio signals from media content

played concurrently with video games and use “content recognition
techniques” to identify the media content and “unlock ‘premium' in-
game content that augment gameplay,” id. (U.S. Patent No.
10,569,171 B2);
o Algorithms that monitor user gameplay performance and encourage

users to make purchases on multiple game platforms by providing
incentives for such “cross platform game play,” id. (U.S. Patent No.
9,403,093 B2);
o Time-limited event-based virtual currencies that become unusable

by or unavailable to users who paid for them, id. (U.S. Patent No.
9,626,475 Bl);
o Algorithms that make offers that decrease in value as other users

accept them to create a sense of urgency, id. (U.S. Patent No.
9,666,026 Bl);
o Algorithms that adjust “virtual item bundles” made available to

users based on user gameplay information, id. (U.S. Patent No.
9,808,708 Bl);
• Ineffective age and identity verification protocols, id. ¶¶ 443, 547;
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• Ineffective parental controls and notifications, id. ¶ 443;
• Lack of any means for users to limit gametime or spending, id.
It is not just video games that use these addictive technologies; the Platform Defendants
used them in the design of their video game products too. See, e.g., Am. Compl. ¶¶ 4, 7,
28-30, 68, 69, 92, 100, 103, 108-113, 120-123, 181-188, 189 374, 395-396, 406. In fact, Microsoft
owns one of the patents used for these monetization schemes that are causing G.D. and
other users harm. Id. ¶151(f). Microsoft cannot claim Section 230 or First Amendment
immunity from harms caused by the use of these AI technologies and addictive
mechanisms in the design of their Xbox Series X, Xbox Store, Xbox Game Pass Ultimate,
and Xbox Cloud Gaming. See id. ¶¶ 68, 163-164, 364-386. Nor can Nintendo, who used
the technologies in its Switch and eShop, id. ¶¶ 68, 163-164, 387-398, or Google, who use
the technologies in its Google Play, id. ¶¶ 68, 163-164, 399-407.
Moreover, the Platform Defendants do not even attempt to articulate the “ideas”
and “messages” supposedly communicated through these defective technical and AI
features. This is because they cannot. The truth is that the defective features designed
into Google, Nintendo, and Microsoft’s video game products—and in the video games
G.D. plays—do not communicate anything at all. That Defendants could address these
defects without changing anything about the content of the games being played—i.e.,
without changing any of the ideas and messages expressed through the games’
characters, dialogue, plots, narratives, pictures, art, music, and other interactive
features—proves that the defective features do not constitute protected expression.
-48-
Further, many of the defective features involve decisions made by algorithms, not
humans. Google, Nintendo, and Microsoft assume—without acknowledging the issue—
that algorithms must be treated as the equivalent of human speech. But it is far from a
foregone conclusion that algorithms are entitled to First Amendment protection. The First
Amendment protects the freedom to think and speak as inalienable human rights. W. Va.
State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Leading scholars have explained the
deeply concerning consequences of assuming machine speech is legally equivalent to,
and deserving of the same constitutional rights as, human speech. See, e.g., Tim Wu,
Machine Speech, 161 U. Pa. L. Rev. 1495, 1496 (2013); Helen Norton, Manipulation and
the First Amendment, 30 Wm. & Mary Bill Rts. J. 221, 223 (2021). And courts have not
treated computer code’s functional elements as speech in other contexts. See, e.g.,
Universal City Studios, Inc. v. Corley, 273 F.3d 429, 451 (2d Cir. 2001) (observing that a
programmer’s use of code to communicate with a computer is “never protected” under
the First Amendment); Commodity Futures Trading Comm'n v. Vartuli, 228 F.3d 94, 111 (2d
Cir. 2000) (reasoning that while the interaction between “programming commands” as
“triggers” and semiconductors as “conduits” is technically a form of “communication,”
it is not protected “speech” under the First Amendment). There is no reason to depart
from that approach here.
G. THE FIRST AMENDMENT IS AN AFFIRMATIVE DEFENSE THAT THE COURT SHOULD

NOT RESOLVE IN DEFENDANTS’ FAVOR ON A MOTION TO DISMISS.
The First Amendment is an affirmative defense, and a court may only dismiss a
claim based on an affirmative defense if it is clear from the face of the complaint that the
-49-
claim is barred. Lackie Drug Store, 2022 U.S. Dist. LEXIS 199594, at *12; Weatherly, 994 F.3d
at 943. However, a plaintiff need not plead facts to negate an affirmative defense. Perry v.
Merit Sys. Prot. Bd., 582 U.S. 420, 435 n.9 (2017); Lackie Drug Store, 2022 U.S. Dist. LEXIS
199594, at *12. Thus, and because “all the circumstances of the speech,” as revealed by
“the whole record,” are relevant to whether a claim is barred by the First Amendment,
dismissal would be improper at this stage. See Snyder v. Phelps, 562 U.S. 443, 453-54 (2011);
City of Los Angeles v. Preferred Commc’ns, Inc., 476 U.S. 488, 495 (1986) (declining to decide
a First Amendment dispute on a motion to dismiss, citing the need for “fuller
development of the disputed issues in the case.”).
II. THERE IS NO BASIS TO DISMISS ANY OF PLAINTIFFS’ CLAIMS.
A. GOOGLE, NINTENDO, AND MICROSOFT CANNOT AVAIL THEMSELVES OF THE

ADTPA’S SAFE HARBOR PROVISION.
The Arkansas Deceptive Trade Practices Act (“ADTPA”) contains a private cause
of action for any person who suffers “an actual financial loss as a result of his or her
reliance on the use of a practice declared unlawful by this chapter … to recover his or her
actual financial loss proximately caused by the offense or violation.” ARK. CODE ANN. §
4-88-113(f)(1)(A); see also Parnell v. FanDuel, Inc., 2019 Ark. 412, 591 S.W.3d 315. Violations
of the ADTPA can occur in a number of ways. ARK. CODE ANN. §§ 4-88-107, 4-88-108(a),
4-102-101(a), 4-102-105.
Google, Nintendo, and Microsoft have violated the ADTPA. See Am. Compl. ¶¶
575-590. To avoid defending these claims, the Platform Defendants argue that they are
protected from these claims by the ADTPA’s “safe harbor provision,” ARK. CODE ANN. §
-50-
4-88-101(2), which states the ADTPA does not apply to “[b]roadcasters, printers,
publishers, and other persons engaging in the dissemination of information who do not
have actual knowledge of the intent, design, purpose, or deceptive nature of the
advertising or practice.” See Platform Defs’ Brf. pp. 27-28. That “safe harbor provision”
has no application to Plaintiffs’ ADTPA claims against Google, Nintendo, and Microsoft.
Plaintiffs’ ADTPA claims are not based on the Platform Defendants’ dissemination
of third-party content; the ADTPA claims are based on Google, Nintendo, and Microsoft’s
deceptive and unconscionable trade practices in connection with the sale and
advertisements of each defendant’s gaming products. See Am. Compl. ¶ 589, see also id.
¶¶ 577-590 (Plaintiffs’ ADTPA claim). The Platform Defendants’ gaming products at
issue here are:
• Nintendo: Switch (gaming console); Nintendo eShop (online gaming

store), Am. Compl. ¶¶ 30, 62, 387-398;
• Microsoft : Xbox Series X (gaming console); Xbox (Microsoft) Store

(online gaming store); Xbox Game Pass Ultimate (online cloud gaming
platform and subscription service); Xbox Cloud Gaming (online cloud
gaming platform), id. ¶¶ 28-30, 58, 364-386;
• Google: Google Play (online cloud gaming platform), id. ¶¶ 38, 399-407.
Plaintiffs have specifically alleged Google, Nintendo, and Microsoft violated the ADTPA
in connection with the advertising and selling of these products to consumers. See id. ¶¶
575-590. Accordingly, section 4-88-101(2) does not apply to Plaintiffs’ ADTPA claims
against Google, Nintendo, and Microsoft.
Google, Nintendo, and Microsoft also cannot use section 4-88-101(2) as a shield to
liability for the dissemination of any information related to the video games played on or
-51-
available on their gaming platforms, Platform Defs’ Brf. pp. 27-28, because Google,
Nintendo, and Microsoft were each aware that the Game Defendants and Ubisoft were
engaging in unlawful, deceptive, wrongful, and harmful conduct in connection with the
design of their video games and acted in concert with the Game Defendants and Ubisoft
in deceiving the public about the danger their video game products pose to users, Am.
Compl. ¶¶ 59, 63, 65, 67-70, 397, 407, 668-670.
Accordingly, Plaintiffs’ ADTPA claims against Google, Nintendo, and Microsoft
cannot be dismissed.
B. GOOGLE, NINTENDO, AND MICROSOFT’S VIDEO GAME PLATFORMS ARE PRODUCTS

SUBJECT TO THE ARKANSAS PRODUCTS LIABILITY ACT.
The Arkansas Product Liability Act of 1979 defines a “product liability action” to
include strict liability actions brought for personal injuries “caused by or resulting from
the manufacture, construction, design, formula, preparation, assembly, testing, service,
warning, instruction, marketing, packaging, or labeling of any product.” ARK. CODE ANN.
§ 16-116-202(5). Product suppliers are subject to liability for harm when they are (1)
engaged in the business of manufacturing, assembling, selling, leasing, or otherwise
distributing the product; (2) the product was supplied in by [them] in a defective
condition that rendered it unreasonably dangerous; and (3) the defective condition was
a proximate cause of the harm to a person or to property.” ARK. CODE ANN. § 16-116-
101(a). “Supplier” is defined to include “any individual or entity engaged in the business
of selling a product, whether the sale is for resale or for use or consumption,” and
“includes a retailer, wholesaler, or distributor.” ARK. CODE ANN. § 16-116-202(6)(A)-(B).
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A “product” is “any tangible object or goods produced, excluding real estate and
improvements thereon.” ARK. CODE ANN. § 16-116-202(4). “Tangible” is not defined by
statute; therefore, the common meaning of the word is applied when determining
whether a statute applies. See Williams v. Baptist Health, 598 S.W.3d 487, 495 (Ark. 2020)
(“The first rule in considering the meaning and effect of a statute is to construe it just as
it reads, giving words their ordinary and usually accepted meaning in common
language.”). A common meaning of “tangible” is “real and not imaginary; able to be
shown, touched, or experienced,” or “real and able to be shown or touched.”20 Consistent
with that definition, the Arkansas General Assembly, in other contexts, has defined
“tangible objects” as “items which can be held, seized, transported, or otherwise moved.”
Engelhardt v. Rogers Group, Inc., 132 F. Supp. 2d 757, 760 n7 (E.D. Ark. Feb. 21, 2001) (citing
ARK. CODE ANN. §§ 17-14-103(13), 25-15-208, 20-77-904(a)). The General Assembly has
also, in other contexts, defined “goods” as “all things which are moveable at the time of
identification to the contract for sale other than the money in which the price is to be paid,
investment securities, and things in action.” ARK. CODE ANN. § 4-2-105(1).
i. NINTENDO AND MICROSOFT’S VIDEO GAME CONSOLES ARE “PRODUCTS”
The Nintendo Switch is a handheld console device that allows a user to play a
physical copy of a video game, like Fortnite, and allows for online game play and online
game purchases. Am. Compl. ¶¶ 62, 387; see also Nintendo Switch™ Family - Nintendo -
Official Site, available at https://www.nintendo.com/us/switch/ (last accessed March
20Cambridge Online Dictionary,“tangible,” available at

https://dictionary.cambridge.org/dictionary/english/tangible#google_vignette
-53-
29, 2024). The Switch is a “tangible object or good produced” and, therefore, is a product
under ARK. CODE ANN. § 16-116-202(4).
The Xbox Series X is the fourth generation of consoles in the Xbox series, released
in November of 2020. The Xbox Series X is backwards-compatible with nearly all Xbox
One-compatible games and accessories, allowing users to play any game—even older
games—designed, developed, manufactured, and sold to be played on most Xbox
consoles. In addition to playing physical copies of games on the Xbox Series X, users can
also download games from the Xbox Store, or play through Xbox Cloud Gaming with a
Game Pass subscription. Am. Compl. ¶¶ 365-366. 21 Xbox Series X is a “tangible object or
good produced” and, therefore, is a product under ARK. CODE ANN. § 16-116-202(4).
ii. GOOGLE, NINTENDO, AND MICROSOFT’S ONLINE VIDEO GAME PLATFORMS

ARE “PRODUCTS”
Nintendo eShop is an online video game platform that allows users to purchase
and download for play on the Switch. It is a part of the Switch. Once a game is
downloaded from the eShop, the video game is downloaded and installed on the Switch.
The eShop is designed with AI bots and other technologies to target users to purchase
specific games. Because of this addictive design and its inclusions as a component of the
Nintendo Switch, the eShop is a “tangible good” for purposes of Section 16-116-202(4)
and strict liability.
21See also Microsoft’s website, available at: https://www.xbox.com/en-US/consoles/xbox-series-x (last

accessed March 29, 2024).
-54-
Microsoft’s online video game platforms—Xbox Store, Xbox Game Pass Ultimate,
and Xbox Cloud Gaming—are “tangible objects and goods” produced by Microsoft for
use with its Xbox gaming consoles, personal computers, and mobile phones. Through the
Xbox Store, users can download games and certain downloadable content for said games.
Microsoft markets this store as “safe” for the whole family to use, regardless of the
harmful addictive content built into these products. Id. ¶¶ 366-67. Xbox Game Pass is a
paid tiered-subscription service offered by Microsoft that provides users access to online
games. While services are not normally considered products, the highest Xbox Game Pass
tier—Xbox Game Pass Ultimate—used by G.D. and which provides access to Xbox Cloud
Gaming.
Xbox Cloud Gaming operates by linking a user’s device to a remote server in the
cloud, thereby allowing users to save gameplay in the cloud and access the gameplay
from numerous devices at any given location. With Xbox Cloud Gaming, a user no longer
needs an Xbox console to play games; instead, they can access the games from a number
of devices including mobile devices and laptops. Id. ¶¶ 372-76. Xbox Cloud Gaming is a
tangible object and good that allows users to play video games in the same manner as on
a physical console. The patented AI technologies used in designing Xbox Cloud Gaming,
and Xbox Store and Xbox Game Pass, do more than just allow users to connect with video
games, content, or other users. Xbox Cloud Gaming, Xbox Game Pass, and Xbox Store are
built using bots and tangible technologies produced by Microsoft. As such, they meet the
definition of products in ARK. CODE ANN. § 16-116-202(4).
-55-
Google Play is an online video game platform, designed using the same AI
technologies as Microsoft and Nintendo’s online platforms, and functions as a way for
users to download certain games and play them on Android mobile devices. Am. Compl.
¶ 399. Google Play—once downloaded and installed on a user’s Android phone--
essentially turns a user’s phone into a gaming console. If a user decides they no longer
want their phone to be a gaming console, then Google Play can be deleted from the
device. Accordingly, Google Play is a “tangible object” produced by Google and,
therefore, is a product under Section 16-116-202(4).
iii. PLAINTIFFS HAVE PLAUSIBLY ALLEGED DEFECTS IN THE PLATFORMS.
Google, Nintendo, and Microsoft take issue with the defects alleged to exist in their
products and seek dismissal based on alleged insufficiencies in Plaintiffs’ pleading. No
such insufficiencies exist, see Am. Compl. ¶¶ 430-455 (design defect), ¶¶ 456-472
(inadequate warning), as is explained throughout this Response. Plaintiffs’ strict liability
are viable under Arkansas law and have been sufficiently pled. Google, Nintendo, and
Microsoft’s request to dismiss Plaintiffs’ strict liability causes of action should be denied.
C. GOOGLE, NINTENDO, AND MICROSOFT OWE A DUTY OF CARE TO PLAINTIFFS
“Under Arkansas law, negligence is defined as the failure to do something that a
reasonably careful person would do, or the doing of something that a reasonably careful
person would not do, under the circumstances.” Boerner v. Brown & Williamson Tobacco
Co., 126 F.Supp.2d 1160, 1168 (E.D. Ark. 1999). To state on a negligence claim, the plaintiff
must show “a duty was owed and that the duty was breached which proximately caused
injuries.” Id. “Duty is a concept which arises out of the recognition that relations between
-56-
individuals may impose upon one a legal obligation for the other.” Shannon v. Wilson, 329
Ark. 143, 158, 947 S.W.2d 349, 356 (1997). It is always a question of law as to whether a
duty exists. Yanmar Co., Ltd. v. Slater, 2012 Ark. 36, at 17, 386 S.W.3d 439, 449.
Nintendo is the designer, developer, manufacturer, publisher, supplier, and
vendor of the Nintendo Switch game console and Nintendo eShop, and is a vendor of
first-party and third-party video games. Am. Compl. ¶¶ 62-63, 387-394. Microsoft is the
designer, developer, manufacturer, publisher, supplier, and vendor of the Xbox Series X
game console, Xbox Store, Xbox Game Pass Ultimate, and Xbox Cloud Gaming, and is a
vendor of first-party and third-party video games. Id. ¶¶ 58-60, 364-365, 368-374. Google
is the designer, manufacturer, developer, publisher, and supplier of Google Play, and is
a vendor of first-party and third-party video games. Id. ¶¶ 65, 399, 405. As such, Google,
Nintendo, and Microsoft owed a duty to foreseeable Arkansas consumers of those video
game products, like G.D. and the Dunns.
Google, Nintendo, and Microsoft owed the following duties under Arkansas law:
• A manufacturer22 of a product has a duty to use ordinary care in its

design and to package it in order to protect those who will use it and
who are in the area of its use from unreasonable risk of harm while it is
being used for its intended purpose or while it is being used for its
intended purpose or while it is being used for any purpose which
should reasonably be expected by the manufacturer. AMI 1101;
• A manufacturer has a duty to give a reasonable and adequate warning

of dangers inherent or reasonably foreseeable in the use of its product
for a purpose and in a manner which the manufacturer should
reasonably foresee. AMI 1002;
22 In Arkansas, “‘manufacturer’ means the designer, fabricator, producer, compounder, processor, or

assembler of any product or its component parts.
-57-
• A vendor who sells a product which it knows or has reason to know is

likely to be dangerous when used in the manner or for the purpose for
which it was designed has a duty to give a reasonable and adequate
warning of that danger. AMI 1005;
• A manufacturer of a product has a duty to give reasonable and adequate

instructions with respect to the conditions and methods of its safe use
when danger is reasonably foreseeable in its use, unless the danger is
known to the user or is reasonably discoverable by them. AMI 1003;
• A company owes a duty of ordinary care, or a duty to act with the care
a reasonably careful person would use under circumstances similar to
those shown by the evidence. AMI 303; and
• A company who knows, or reasonably should know, that a child may

be affected by its conduct is required to anticipate the ordinary behavior
of children and to use care commensurate with any danger reasonably
to be anticipated under the circumstances. AMI 604.
Acting as a reasonably careful company designing, manufacturing, publishing, and
supplying video games to the world market would not act in violation of or act contrary
to statutory laws, rules, or regulations. See AMI 601 (A violation of a statute, ordinance,
or regulation, although not necessary negligence, is evidence of negligence); Shannon v.
Wilson, 329 Ark. 143, 160, 947 S.W.2d 349, 357-358 (1997) (Arkansas does not recognize
negligence per se, but violation of a statute, regulation or law is evidence of negligence).
Again, the Platform Defendants owed these duties to G.D. and the Dunns. See Am.
Compl. ¶¶ 482-483 (duty to design safe products); ¶¶ 501, 544 (duty to warn); ¶ 423 (duty
to disclose); ¶¶ 517, 544 (duty to instruct); ¶ 530 (duty of ordinary care); ¶¶ 542, 543, 545
(laws a reasonable company in Google, Nintendo, and Microsoft’s shoes would not
violate). Nevertheless, the Platform Defendants argue for dismissal because “[a] party
providing access to third-party speech has no legal duty to protect or warn against
-58-
potential harms associated with such speech,” Platform Defs’ Brf. p. 34. This argument
fails for two reasons. One, this case is not about “speech” or the Platform Defendants
providing a space for free expression. Two, Arkansas law does recognize a duty to
protect or warn others from wrongs committee by third parties. See AMI 1005. As
vendors of defective and dangerous video games—a fact Google, Nintendo, and
Microsoft knew (or had reason to know), see Am. Compl. ¶¶ 59, 63, 65, 67-70, 397, 407,
668-670,--the Platform Defendants had a duty to give a reasonable and adequate warning
of the danger posed by the video games supplied, sold, and advertised on their video
game platforms. See AMI 1003.
Accordingly, Google, Nintendo, and Microsoft’s argument that they have no valid
legal duty fails and Plaintiffs’ negligence-based claims cannot be dismissed.
D. GOOGLE, NINTENDO, AND MICROSOFT’S ACTIONS AND MISCONDUCT ARE A
PROXIMATE CAUSE OF G.D.’S INJURIES AND PLAINTIFFS’ DAMAGES
Proximate cause is defined as that which in a natural and continuous

sequence, unbroken by any efficient intervening cause, produces the injury
without which the result would not have occurred. Of course, proximate
cause may be proved by either circumstantial or direct evidence. It is,
however, necessary that there be evidence that would tend to eliminate
other causes that may fairly arise from the evidence and that the jury not be
left to speculation and conjecture in deciding between two equally probably
possibilities. It is enough that the plaintiff introduce evidence from which
reasonable persons might conclude that it is more probably than not that
the event was caused by the defendant.
Miaoulis v. Toyota Motor N. Am., Inc., 2021 Ark. App. 19, at 5-6. A
plaintiff need not negate entirely the possibility that the defendant’s
conduct was not a cause, and it is enough that he introduces evidence from
which reasonable men may conclude that it is more probable that the event
was caused by the defendant than it was not. … If as a matter of ordinary
-59-
experience a particular act or omission might be expected, under the

circumstances, to produce a particular result, and that result in fact has
followed, the conclusion may be permissible that the causal relation exists.
Fidelity-Phenix Insurance Co. v. Lynch, 248 Ark. 923, 928, 455 S.W.2d 79, 82-83 (1970).
Moreover, [w]hen the negligent acts of the parties are concurrent, there is no intervening
cause which bars recovery against the original actor.” W.M. Bashlin Co. v. Smith, 277 Ark.
406, 419, 643 S.W.2d 526, 532 (1982). The defendant bears the burden of proving that an
intervening cause exists. Villines v. North Arkansas Regional Medical Center, 2011 Ark. App.
506, *8, 385 S.W.3d 360, 366 (Ark. App. 2011).
Plaintiffs have sufficiently alleged Google, Nintendo, and Microsoft’s video game
products—Nintendo’s Switch and eShop; Microsoft’s Xbox Series X, Xbox Store, Xbox
Game Pass Ultimate, and Xbox Cloud Gaming; and Google’s Google Play—and the
Platform Defendants’ conduct in designing, manufacturing, supplying, and selling those
products, are a proximate cause of G.D.’s injuries and Plaintiffs’ damages. The Platform
Defendants assertion of alleged deficiencies in premised in their version of Plaintiffs’
legal theory—that this case is about content—rather than Plaintiff’s theory—that this case
is about Defendants’ conduct. See, generally, SOF, supra; Arg., supra. But Plaintiffs are
the master of their complaint, Winfrey v. City of Forrest City, 882 F.3d 757, 758 (8th Cir.
2018), and proximate cause based on Google, Nintendo, and Microsoft’s conduct has been
sufficiently pled.
Further, questions of proximate causation are more often than not a question of
fact, to be determined by viewing attendant circumstances, to be decided by a jury. See
White River Rural Water Dist. v. Moon, 310 Ark. 624, 627, 839 S.W.2d 211, 212 (1992); Hill
-60-
Const. Co. v. Bragg, 291 Ark. 382, 385, 725 S.W.2d 538, 540 (1987). Thus, when the challenge
to a plaintiff’s ability to prove proximate cause is made in a motion to dismiss—and the
plaintiff has made allegations to support causation—dismissal is not appropriate. See
Twombly, 550 U.S. at 583. Such is the case here. Any disputes about causation are better
left to be determined after discovery, and not at the pleading stage—particularly when
sufficient facts have been pled to state causation.
Regardless, Plaintiffs’ have sufficiently pled proximate causation based on Google,
Nintendo, and Microsoft’s conduct. For instance, Plaintiffs have pled:
• Nintendo is the designer, developer, manufacturer, publisher, supplier,

and vendor of the Nintendo Switch game console and Nintendo eShop,
and is a vendor of first-party and third-party video games, id. ¶¶ 62-63,
387-394;
• Microsoft is the designer, developer, manufacturer, publisher, supplier,

and vendor of the Xbox Series X game console, Xbox Store, Xbox Game
Pass Ultimate, and Xbox Cloud Gaming, and is a vendor of first-party
and third-party video games, id. ¶¶ 58-60, 364-365, 368-374;
• Google is the designer, manufacturer, developer, publisher, and

supplier of Google Play, and is a vendor of first-party and third-party
video games, id. ¶¶ 65, 399, 405;
• G.D. used the Platform Defendants video game products, id. ¶¶ 27-30,
409-411;
• Video game addiction and its harmful consequences are only expanding
due to the advent of online gaming, cloud gaming, and streaming of
games on any device at any time—giving minors unfettered access to
“free” games that target those consumers to purchase products within
the game to keep playing or for other game perks, id. ¶ 4;
• Google, Nintendo, and Microsoft designed, manufactured, marketed,

and sold video game products, including those used by G.D., with
microtransactions, cloud gaming, and other patented technologies to
cause the addiction experienced by G.D. and other users, and does not
-61-
give any warning of the dangers posed by their video game products or
the video games they supply and sell on their online platforms, id. ¶¶ 7,
100-103, 108-113, 120-123, 176, 181-189, 386, 397-398, 407, 434(d)-(g), 437
(d)-(g); and
• The defective design of Google, Nintendo, and Microsoft’s video game

products, and their failure to warn users like Plaintiffs about the
unreasonably dangerous condition of their products when used as
intended, was a proximate cause of G.D.’s injuries and Plaintiffs’
damages, id. ¶¶ 440-441, 445-451, 460-464, 467-468.
This is sufficient to satisfy state proximate cause against Google, Nintendo, and
Microsoft. Dismissal on this basis would be improper.
E. PLAINTIFFS HAVE PLED THEIR FRAUD-BASED CLAIMS AGAINST GOOGLE, NINTENDO,

AND MICROSOFT WITH PARTICULARITY.
When pleading fraud-based claims, a plaintiff must plead the requisite elements
“with particularity.” FED. R. CIV. P. 9(b). This means that “in alleging fraud or mistake, a
party must state with particularity, the circumstances constituting fraud or mistake.
Malice, intent, knowledge, and other conditions of a person’s mind may be alleged
generally.” Id. Courts generally read this rule to require identification of the “who, what,
where, when, and how” of the alleged fraud. Lauderdale v. Organon USA, Inc., 2022 U.S.
Dist. LEXIS 157591, *38 (W.D. Ark. Aug. 26, 2022). However,
no single concern controls whether a pleading meets the requirements of

Rule 9(b), but, rather, the sufficiency of the pleading must largely depend
upon the nature of the case, the complexity or simplicity of the transaction
or occurrence, the relationship of the parties and the determination of how
much circumstantial detail is necessary to give notice to the adverse party
and enable him to prepare a responsive pleading.
Courts must be sensitive to the fact that application of Rule 9(b) prior to
discovery may permit sophisticated defrauders to successfully conceal the
details of their fraud. Particularly in cases of corporate fraud, plaintiffs
-62-
cannot be expected to have personal knowledge of the details of internal

affairs.
Canaan Wildlife Pres., Inc. v. Chesapeake Energy Corp., Case No. 13-2064, 2013 U.S. Dist.
LEXIS 185527, *11 (W.D. Ark. Oct. 1, 2013) (cleaned up) (quotations and citations
omitted). Plaintiffs’ fraud-based claims against Google, Nintendo, and Microsoft have
met this standard. See Am. Compl. ¶¶ 59, 63, 65, 69, 367, 575-655.
Nevertheless, the Platform Defendants seek dismissal of Plaintiff’s deceit by
affirmative representation claim due to an alleged failure “to identify any actual allegedly
misleading statement from Google and Nintendo,” Platform Defs’ Brf. pp. 38. They also
argue that, with respect to Microsoft, Plaintiffs only identified one actual statement by
Microsoft—that its Xbox Store is “safer for the whole family,” which the Dunns and G.D.
did not rely on according to the Platform Defendants. Platform Defs’ Brf. pp. 38-39. The
factual allegations clearly contradict the Platform Defendants’ position.
Google, Nintendo, and Microsoft all represented that their video game products
are safe and can be used by minors—when they are not. Am. Compl. ¶¶ 367, 595, 595(e)-
(g), 597 G.D. and the Dunns relied on these representations This caused harm to G.D. Id.
¶¶ 605. Dismissal of Plaintiff’s deceit/fraudulent misrepresentation claim is, therefore,
not warranted. 23
23Google, Nintendo, and Microsoft do not make any specific arguments challenging Plaintiffs’ causes of
action for fraudulent omission/nondisclosure, fraudulent concealment, and fraudulent inducement and,
therefore, those claims should not be dismissed as they were stated with particularity as required by Rule
9(b), Bell, and Twombly.
-63-
CONCLUSION
For the reasons stated herein, the Motion to Dismiss filed by Google, Nintendo,
and Microsoft should be denied.
Respectfully submitted, this 29th day of March, 2024,
Plaintiffs Casey Dunn, individually and on behalf of

G.D., a minor, and Thomas Dunn
By: Breean Walas

BULLOCK WARD MASON LLC
Breean “BW” Walas (AR2006077)
Tina Bullock (admitted pro hac vice)
Danielle Ward Mason (admitted pro hac vice)
3350 Riverwood Pkwy., Suite 1900
Atlanta, Georgia 30339
(833) 296-5291
bwalas@bwmlaw.com
tina@bwmlaw.com
danielle@bwmlaw.com
-64-

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Case 3:23-cv-00224-JM Document 121 Filed 03/29/24 Page 1 of 64

UNITED STATES DISTRICT COURT

by Defendants Google LLC (“Google”), Nintendo of America Inc. (“Nintendo”), and

Microsoft Corporation (“Microsoft”) (sometimes, collectively, the “Platform

This product design was purposeful.

to dismiss Plaintiffs’ Amended Complaint with prejudice. See Motion to Dismiss of

Memorandum of Law in Support of Nintendo of America Inc., Google LLC, and

Microsoft Corporation’s Motion to Dismiss Plaintiffs’ First Amended Complaint (Dkt.

Dismiss should be denied.

I. THE DUNN FAMILY

25-32, 34, 235, 409-411, 466, 471, 500, 521, 629.

the Dunns sleep. Id. ¶¶ 20-21, 235-238, 241-242, 246-251.

II. VIDEO GAME ADDICTION AND ITS EFFECTS

Video game addiction (“VGA”) is a worldwide epidemic. VGA, also known as

gaming disorder or internet gaming disorder (“IGD”), is characterized by severely

including personal, social, educational, and occupational responsibilities. Video game

addicts will forego food or sleep. Id. ¶¶ 1, 2, 5, 195.

VGA/IGD can be diagnosed when an individual engages in gaming activities at

escalation of gaming despite negative consequences. Id. ¶¶ 197.

recognized in the DSM-5. The American Psychiatric Association (“APA”), the

deceiving family members, therapists, or others regarding the amount of internet

jeopardizing or losing a significant relationship, job, or education or career opportunity

because of participation in internet games. The DSM-5 acknowledges that several

conceptualized disordered gaming according to the six first-order latent components

well-established in behavioral addictions: salience, mood modification, tolerance,

withdrawal symptoms, conflict, and relapse. Id. ¶¶ 206, 207, 208.

The Internet Gaming Disorder Scale-Short-Form (“IGDS9-SF”) was then created,

as a brief standardized psychometric tool to assess gaming disorder. The IGDS9-SF

Another commonly used instrument for the measurement of addiction is the

as well as the literature on addictions. Approximately 3-4% of gamers are addicted to

included in the International Classification of Diseases (“ICD-11”), the global

Organization. Id. ¶ 201.

stage cycle akin to substance abuse: binge/intoxication, withdrawal/negative affect, and

preoccupation/anticipation. This cycle becomes more severe as a person continues to use,

substance use. Id. ¶ 177.

IGD is a growing and prolonged behavioral pattern of gaming, leading to

syndrome if unable to play at increasing periods of time. Id. ¶ 194.

drug addiction, such as hangover, changes in mood, adaptability, withdrawal, conflict,

and recurrence symptoms. 3 Id. ¶ 216.

This well-supported scientific evidence 5 shows that disruptions in three areas of

impulsivity, and brain damage. Id. ¶ 215.

III. THE VIDEO GAME INDUSTRY

A. THE VIDEO GAME INDUSTRY AND ARTIFICIAL INTELLIGENCE

model based on in-game purchases such as “monetization schemes” or

“microtransactions” of downloadable products and Artificial Intelligence. This model is

93, 151, 163.

Artificial Intelligence (“AI”) is a term used to describe a robot which by definition

reasoning, making decisions, or solving problems. A robot is a machine—especially one

programmable by a computer—capable of carrying out a complex series of actions

robot or bot. which can be guided by an external control device or an embedded

machines, designed with an emphasis on stark functionality, rather than expressive

substantial resources to the research and development of video game AI programs. 8 AI

Neural Networks, an AI method that teaches computers to process data,

For instance, OpenAI Five, a computer program developed by OpenAI, uses

(5) MetaAI which is utilized by Ubisoft to give Non-Playing Characters (“NPCs”)

persistence and purpose in a game world. See Am. Compl. ¶¶ 163-164.

With respect to microtransactions, many video companies employ the assistance

of AI to analyze players’ behaviors and tailor in-game purchases to their interests,

microtransactions in multiplayer video games. The system may include a

microtransaction arrange matches to influence game-related purchases. For example, the

junior player to make game-related purchases of items possessed/used by the marquee

B. NINTENDO: SWITCH & NINTENDO ESHOP

Nintendo is a video game company that designs, develops, manufactures,