Dunn et al v. Activision Blizzard Inc et al

Filing 39

ORDER DENYING TRANSFER re: pldg. ( 1 in MDL No. 3109) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Karen K. Caldwell, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 6/5/2024. Associated Cases: MDL No. 3109, ARE/3:23-cv-00224, ARE/3:24-cv-00026, ILN/1:23-cv-16566, ILS/3:23-cv-03678, MOW/2:24-cv-04036 (CT)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: VIDEO GAME ADDICTION
PRODUCTS LIABILITY LITIGATION

MDL No. 3109

ORDER DENYING TRANSFER
Before the Panel: ∗ Plaintiffs in the five actions listed on Schedule A move under 28
U.S.C. § 1407 to centralize this litigation in the Western District of Missouri or, alternatively, the
Eastern District of Arkansas. Since the filing of the motion, the Panel has been notified of
ten related actions. The cases in this litigation are individual personal injury actions alleging
that video game developers, digital app stores, and other technology companies have developed
and sold video games and related products with psychologically addictive features for the purpose
of causing addiction to video games among minors and young adults. In total, the fifteen actions
in this docket are pending in ten districts.
All responding defendants oppose centralization. 1 If the actions are centralized over their
objections, they request the Eastern District of Arkansas or the Northern District of Georgia as
transferee district. 2
On the basis of the papers filed and the hearing session held, we conclude that centralization
will not serve the convenience of the parties and witnesses or further the just and efficient conduct
of the litigation. Movants rely on broad similarities among the actions concerning the video game
industry and defendants’ alleged conduct in designing, marketing, selling, and facilitating the use
of video game products that, plaintiffs argue, cause prolonged, compulsive game play and,
∗

Judge David C. Norton did not participate in the decision of this matter.

1

Responding defendants are 2KGames Inc., Apple Inc., Activision Blizzard, Inc./Blizzard
Entertainment Inc., Another Axiom, Inc., Dell Inc. and Dell Technologies Inc. (together, “Dell”),
Electronic Arts Inc., Epic Games Inc., Google LLC, Innersloth LLC, Infinity Ward Inc.,
Meta Platforms, Inc. (“Meta”), Microsoft Corp., Mojang Studios, Nintendo of America Inc.,
Raven Software Corp., Rec Room Inc., Roblox Corp., Rockstar North Limited, Rockstar Games
Inc., Sledgehammer Games Inc., Sony Interactive Entertainment LLC, Take-Two Interactive
Software Inc., Treyarch Corp., Ubisoft Divertissements, Inc. and Ubisoft Entertainment, and
Visual Concepts Entertainment Studios.
2

Defendant Dell also requests that the claims in the Broussard related action be excluded from
any MDL pursuant to the separation and remand provision of Section 1407(a).

-2ultimately, addiction through the use of similar features like feedback loops, reward systems,
pay-to-win options, and artificial intelligence mechanisms. The differences among the actions,
however, are substantial: there is a broad range of games and defendants in each action, with the
at-issue games only partially overlapping. For example, the video games at issue in Dunn are
Battlefield, Call of Duty, Fortnite, and Rainbow Six; the games at issue in Jiminez are Fortnite,
Minecraft, and Roblox; the games at issue in Angelilli are Call of Duty, Fortnite, Roblox, and
Grand Theft Auto; and the games at issue in Glasscock are Call of Duty, World of Warcraft, and
Overwatch. 3 The related actions also involve over 30 different defendants, and many are involved
in just one or two actions – e.g., Another Axiom Inc., Banana Analytics, Bluestacks by Now.GG,
Dell, Innersloth LLC, Meta, MSI Computer Corp., and VR Chat, Inc.
Plaintiffs attempt to overcome the differences among the products and defendants by
asserting that an alleged common conspiracy supports centralization – specifically, that defendants
“conspired or acted in concert to addict a generation of young video game players.” 4 Indeed, all
of the complaints bring a claim for civil conspiracy. But in each action, the alleged conspiracy
claim is pled against a different group of defendants and involves different combinations of gaming
products. Given the different products and defendants involved in each alleged conspiracy,
centralization is not warranted. 5
Plaintiffs also assert that the number of actions is likely to expand, asserting during oral
argument that there would be 10,000 additional actions. But “the mere possibility of additional
actions does not support centralization, even where thousands of actions are predicted.” 6 We note,
however, that our decision to deny centralization here is not based on an insufficient number of
actions, but rather the lack of common factual questions in this litigation.
Informal coordination is a practicable alternative to centralization. Plaintiffs in all
actions on the motion and seven of the ten potential tag-along actions share counsel and have
represented in the briefing that they have coordinated, and will continue to coordinate with, other
groups of plaintiffs involved in this litigation. The most frequently-named defendants have
3

Many additional games and defendants are introduced in the related actions that the parties
identify as potential tag-along actions, including Gorilla Tag, Capuchin, Rec Room, Among Us,
NBA2K, Subway Surfers, Madden 24, and Rocket League.
4

See Pls.’ Reply at 11, 14, 16 (J.P.M.L. Apr. 15, 2024).

5

Proponents of an industry-wide MDL generally have a heavy burden to show that the actions will
share sufficient overlap that including them will promote the just and efficient conduct of the
litigation. See, e.g., In re Proton-Pump Inhibitor Prods. Liab. Litig., 273 F. Supp. 3d 1360, 1362
(J.P.M.L. 2017) (“We are typically hesitant to centralize litigation against multiple, competing
defendants which marketed, manufactured and sold similar products.”) (quotation omitted).
Movants fall far short of meeting that burden here.
6

In re Hotel Industry Sex Trafficking Litig (No. II)., __ F. Supp. 3d __, 2024 WL 1596932, at *2
(J.P.M.L. Apr. 11, 2024) (quoting In re Hotel Industry Sex Trafficking Litig., 433 F. Supp. 3d 1353,
1356 (J.P.M.L. 2020)) (internal quotation marks omitted).

-3national coordinating counsel. At oral argument, their counsel represented that they will
coordinate any overlapping discovery that potentially may arise. Additionally, where multiple
related actions are pending in a single district or region, the parties and involved courts can make
efforts to organize the actions before a single judge, including through transfer under Section
1404(a) as has occurred in the Eastern District of Arkansas.
denied.

IT IS THEREFORE ORDERED that the motion for centralization of these actions is

PANEL ON MULTIDISTRICT LITIGATION

_________________________________________
Karen K. Caldwell
Chair
Nathaniel M. Gorton
Roger T. Benitez
Madeline Cox Arleo

Matthew F. Kennelly
Dale A. Kimball

IN RE: VIDEO GAME ADDICTION
PRODUCTS LIABILITY LITIGATION

MDL No. 3109

SCHEDULE A
Eastern District of Arkansas
DUNN, ET AL. v. ACTIVISION BLIZZARD, INC., ET AL., C.A. No. 3:23−00224
JOHNSON, ET AL. v. ACTIVISION BLIZZARD, INC., ET AL., C.A. No. 3:24−00026
Northern District of Illinois
ANGELILLI v. ACTIVISION BLIZZARD, INC., ET AL., C.A. No. 1:23−16566
Southern District of Illinois
JIMINEZ v. MICROSOFT CORPORATION, ET AL., C.A. No. 3:23−03678
Western District of Missouri
GLASSCOCK v. ACTIVISION BLIZZARD, INC., ET AL., C.A. No. 2:24−04036