California View: Can <i>Pok'mon Go</i> Players Hold Game Developer Liable?

However, the vast majority of players are likely unaware of the terms of service that they agreed to when they downloaded the game. These terms of service advise players to remain aware of their surroundings and to play safely. The terms also include an arbitration clause. Pok'mon Go 's terms of service are of the click-wrap variety and are extremely lengthy. A player can opt out of the arbitration clause within 30 days of agreeing to the game's terms of service and still play. However, players seeking to sue Niantic will have waived their rights to a jury trial and their right to participate as a plaintiff in any class action and will instead be required to go through the arbitration process.

Click-wrap contracts are increasingly being called into question. In the absence of affirmative consent to the terms, courts have expressed reluctance to enforce online arbitration clauses in click-wrap contracts. For example, in Nguyen v. Barnes & Noble Inc. , 763 F.3d 1171 (9th Cir. 2014) (http://bit.ly/2bMh2zt), the U.S. Court of Appeals for the Ninth Circuit rejected an arbitration clause contained in Barnes & Noble's click-wrap contract. Barnes & Noble had placed its terms of use in a hyperlink on its website, but it had not required consumers to affirmatively click on this hyperlink or otherwise affirmatively agree to the terms.

Comparable to Barnes & Noble's terms, Pok'mon Go 's terms of service haven't required players to affirmatively click that they have read or agreed to them. Instead, after players have downloaded the game, they reviewed the terms by going into “settings” and then clicking on “Terms of Service.”

In addition to Pok'mon Go 's problematic lack of requiring affirmative agreement to its terms, it is important to note that a significant number of Pok'mon Go players are minors. A recent Survey Monkey poll showed 22% of players to be between ages 13 and 17. Thus, even if courts decide that the terms are enforceable against adults, the game could force courts to face the largely unanswered question of whether minors can be bound to a smartphone application's click-wrap terms of service.

Contracting with Minors

Pok'mon Go 's terms are governed by the laws of the state of California. Most contracts entered into by an unemancipated minor are voidable and may be disaffirmed until the minor reaches age 18 or soon thereafter. Potentially, therefore, an unemancipated minor who agrees to Pok'mon Go 's terms of service can disaffirm the contract until he or she turns 18.

However, two main exceptions to the doctrine occur where either: 1) the minor entered into a contract for necessities; or 2) the minor received a benefit from the contract. (See, e.g., I.B. by and through Fife v. Facebook, 12-1894 (N.D. Calif. 2013.) While Pok'mon Go is unlikely to be deemed a necessity, it is unclear whether a minor can be said to have received a benefit from it.

In two notable cases that addressed the issue of kids and click-wrap contracts, the courts favored an expansive conception of the benefits exception. In the 2009 decision of A.V. v. iParadigms LLC, 562 F.3d 630, the U.S. Court of Appeals for the Fourth Circuit affirmed the district court's ruling that high school students who had to submit papers to Turnitin, an online service that compared submissions to work in its database and on the internet to check for plagiarism, in order to pass their class had gained a benefit under the click-wrap contract with Turnitin and could not disaffirm the contract based on the defense of infancy to prevent the site from archiving their work.

In iParadigms, the district court held that the teens, by contracting with Turnitin, had received the benefit of receiving a grade in their class that allowed them to remain in good standing at school, thus seeming to vastly expand the benefit exception. In the California federal case C.M.D. v. Facebook Inc., C 12-1216 (N.D. Calif. 2014), aff'd, 621 Fed. Appx. 488 (9th Cir. 2015), the court held that the minor users had entered into a valid contract with Facebook that allowed the site to use their names and photos in a manner that arguably constituted advertising in exchange for the benefits of being members.

The infancy defense has gained increasing criticism in the digital age, as children are becoming increasingly independent and tech-savvy. However, children are still less cognitively mature than adults and are unlikely to understand the ramifications of agreements that they enter into. Although the infancy defense has been challenged in cases such as iParadigms and C.M.D., Pok'mon Go may well present an entirely new challenge to the courts if minors seek to sue the developers of the game.

Brian S. Kabateck is the founding and managing partner of Kabateck Brown Kellner in Los Angeles. His practices focus in the areas of personal injury, insurance bad faith, pharmaceutical litigation, wrongful death, class action, mass torts and disaster litigation. Natalie S. Pang is an associate at Kabateck Brown Kellner specializing in personal injury, mass tort litigation and appellate practice.