McCloskey v. Apple, Inc.

Filing 1

COMPLAINT against SEAN McCLOSKEY ( Filing fee $ 400 paid - receipt number: 0648-7722588), filed by SEAN McCLOSKEY. (Breen, John)

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IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SEAN McCLOSKEY, on behalf
of himself and all others similarly
situated,
6871 Hubbard Drive
Huber Heights, Ohio 45424

:

Plaintiff,

:

:
:

v.

:

Apple, Inc.,
1 Apple Park Way
Cupertino, California

:

Case No. _________________

:
Statutory Agent

:

CT Corporation System
:
4400 Easton Commons Way
Suite 125
:
Columbus, Ohio 43219
:
Defendant.
STATEWIDE CLASS ACTION COMPLAINT
Plaintiff Sean McCloskey, on behalf of himself and others similarly situated,
brings this action against defendant Apple, Inc., to recover money lost to illegal
gambling pursuant to Section 3763.02 of the Ohio Revised Code. See also O.R.C.
§§ 2915.01 et seq. Apple promotes, enables, and profits from games downloaded
from its App Store and played by numerous Ohio residents that constitute illegal

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gambling under the statutory law and the strong public policy of the state of Ohio.
Plaintiff seeks to represent a class pursuant to Rule 23(b)(3) of the Federal Rules of
Civil Procedure.
PARTIES, JURISDICTION, AND VENUE
1.

Plaintiff Sean McCloskey is an adult resident citizen of the state of

Ohio, residing in Montgomery County, Ohio.
2.

Defendant Apple, Inc. is a corporation organized and existing under the

laws of the state of California, with its principal place of business in Cupertino,
California. Apple does business by agent in this state, district, and division.
3.

This is a class action brought by Ohio citizens against a California

company. The amount in controversy exceeds $5 million, exclusive of interest and
costs. Subject matter jurisdiction exists pursuant to the Class Action Fairness Act of
2005, 28 U.S.C. § 1332(d).
4.

Venue is proper under 28 U.S.C. § 1391(b)(2), because this is a

“judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred.”
FACTUAL BACKGROUND
5.

Apple is the most valuable company in the world, with a market

capitalization exceeding $2 trillion as of mid-2020. It is by far the world’s biggest
technology company, now roughly double the size of both Microsoft Corporation
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and Alphabet Inc., the parent company of Google, respectively. Gone are the days
when Steve Jobs’s little company began its quixotic quest to take market share away
from Microsoft’s dominance of the computer software market with its introduction
of the upstart MacIntosh personal computer. Applications for personal computers,
both desktops and laptops, are now a relatively small part of the software market.
Mobile devices are now the name of the game and Apple undisputedly dominates
that lucrative market.
6.

Apple’s operating system for the iPhone smartphone and the iPad

tablet, known as the iOS, is a rigidly controlled closed system that has the ability to
run numerous applications, or apps, available exclusively through Apple’s App
Store. Apple takes up to 30% of all revenue generated by app sales in the App Store
and in-app purchases made on apps obtained through the App Store.1 Millions of
software developers make applications for the Apple iOS. In order to sell apps in the
App Store, developers must submit their programs to Apple, which then decides
whether the app may be included in the App Store and thus downloaded to iOS
devices.
7.

Many apps, including those that are the subject of this lawsuit, are

initially free to download but contain in-app purchases that a customer can choose

1

Apple takes 30% of all initial app purchases and in-app purchases made during the first year after the customer
downloads the app. After that, the percentage drops to 15%.

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to purchase inside the app. Apple provides the payment interface for all such
purchases and, as noted, takes a hefty percentage of the money for itself. A 30%
processing fee is many times the charge that other payment processors outside the
Apple ecosystem, such as Western Union, charge for processing such payments.
8.

The money charged for in-app purchases is paid to Apple. An Apple

customer is required to provide a method of payment, usually a credit or debit card,
for all purchases made in the App Store, including in-app purchases. Apple then has
a contractual obligation to the software developers to remit a portion of the money
Apple receives from the purchases, typically 70%, to the developers. This
contractual arrangement is between Apple and the developers who sell products in
the App Store. As between plaintiff and the class members and Apple, however, all
in-app and other purchases involve the payment of money to Apple, not the
developers.
9.

This case concerns Apple’s profiting from illegal gambling machine

games that it sells in its App Store. Apple and its chief mobile device software
competitor, Google, both allow customers to purchase games that are no more or no
less than casino-style slot machines, casino style table games, and other common
gambling games.
10.

There are numerous such gambling games that Apple makes available

in the App Store, and there is very little variation on how they work. When a
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customer downloads the game and opens it for the first time, the customer has a set
number of free starting “coins,” for example, 100,000 or 1,000,000, to play the slots.
The games themselves work precisely like a casino slot machine or other games in
Las Vegas. In addition to slots, customers can play blackjack, roulette, poker, keno,
bingo, and other card and gambling games. A loss results in a loss of “coins,” but
the customer has the chance to win more coins. Eventually a customer runs out of
coins, and is prompted to use real money to buy more coins for the opportunity to
keep playing the game. Hundreds of these games exist. The following table contains
the 200 most popular games.
1 Slotomania™ Vegas Casino Slots
2 Jackpot Party - Casino Slots
3 DoubleDown™- Casino Slots Game
Playtika Santa Monica, LLCBingo Blitz™ - Bingo
4 Games
5 Cashman Casino Las Vegas Slots
6 Cash Frenzy™ - Slots Casino
7 World Series of Poker - WSOP
8 Heart of Vegas Slots-Casino
9 POP! Slots ™ Live Vegas Casino
10 House of Fun™ - Casino Slots
11 Lightning Link Slots-Casino
12 Big Fish Casino: Slots & Games
13 DoubleU Casino: Vegas Slots
14 Huuuge Casino Slots Vegas 777
15 VEGAS Slots – Casino Slots
16 Caesars® Casino: Vegas Slots
17 Jackpot Magic Slots™ & Casino
18 Lotsa Slots: Casino SLOTS
19 Hit it Rich! Lucky Vegas Slot
20 my KONAMI - Real Vegas Slots
21 Bingo Party! Lucky Bingo Games
22 Zynga Poker - Texas Holdem
23 Wizard of Oz: Casino Slots
5

101 Lucky Play Casino Slots Games
102 Vegas Downtown Slots & Words
103 Slots-Fortune 777 Classic Slot
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mychoice casino jackpot slots
FoxwoodsONLINE
Gold Fortune Casino
GSN Grand Casino: Slots Games
Take5 Casino - Slot Machines
Bid Wars: Pawn Empire
Slots Master-Vegas Casino Game
Slots of Vegas
Slingo Arcade - Bingo & Slots
PokerStars Play – Texas Holdem
Blazing 7s Casino: Slots Games
Mystic Slots: Fun Casino Games
Lucky City™ - 3D Slot Machine
Governor of Poker 3 - Friends
Casino Roulette: Roulettist
Seminole Social Casino
Blackjack⋅
Tap Poker Social
Slots-Heart of Diamonds Casino

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Gold Fish Casino Slots Games
Cash Tornado Slots - Casino
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Double Win Slots Casino Game
Texas Hold'em Poker: Pokerist
Bingo Journey - Classic Bingo
Bingo Bash: Online Bingo Games
Bingo Story Live Bingo Games
Willy Wonka Slots Vegas Casino
Poker Face - Live Texas Holdem
Classic Casino Slots Games
GSN Casino: Slot Machine Games
Bingo Pop - Bingo Games
88 Fortunes Slots Casino Games
MONOPOLY Slots - Casino Games
Vegas Live Slots Casino
Ignite Classic Slots
Hot Shot Casino - Slots Games
Wynn Slots - Las Vegas Casino
Wild Classic Slots™ Casino
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Slot Machines 777 - Slots Era
Club Vegas Slots: Casino 777
Blackjack 21: Blackjackist
Tycoon Casino™ - Vegas Slots
Double Hit Casino: Vegas Slots
Bingo Showdown -> Bingo Live!
Rock N' Cash Casino Slots
Winning Slots Las Vegas Casino
Cash Mania - Casino Slots
Slots GoldenHoYeah-Casino Slot
Huge Win! Classic Slots Game
Slots DoubleDown Fort Knox
Casino Games - Infinity Slots
Backgammon - Lord of the Board
Double Rich！Vegas Casino Slots
Pokerrrr 2- Holdem, OFC, Omaha
Poker Heat: Texas Holdem Poker
Golden Casino - Vegas Slots

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Triple Win Slots-Vegas Casino
Texas Holdem - Scatter Poker
MONOPOLY Bingo!
San Manuel Slots
Wheel of Fortune Slots
Ultimate Slots: Casino Slots
Lucky Slots: Vegas Casino
Stardust Casino™ Slots - Vegas
Slots of Vegas - Slot Machine
Xtreme Slots
Video Poker Deluxe Casino
Win Vegas Slots Casino: Nascar
Bid Wars: Storage Auctions
Coin Trip
Royal Slot Machine Games
World Poker Tour - PlayWPT
Absolute Bingo! Play Fun Games
Bingo Holiday - BINGO Games
Vegas Slots - Slot Machines!
Solitaire
Video Poker Games
Slots™
Sanh Rong - Game danh bai
Slot Bonanza- 777 Vegas casino
HighRoller Vegas: Casino Slots
Video Poker by Ruby Seven
Slots Craze: Casino Games 2020
VIP Poker - Texas Holdem
Cash Dozer: Lucky Coin Pusher
VIP Deluxe Slot Machine Games
Vegas Slots: Deluxe Casino
Casino Frenzy-Fantastic Slots
Video Poker - Classic Games
Epic Diamond Slots: Casino Fun
Ellen's Road to Riches Slots
Empire City Casino Slots
Diamond Sky: Slots & Lottery
Poker Night in America
Slots - Pharaoh's Way
HOLD'EM OR FOLD'EM
Slingo Adventure
Dragon King Fishing Online
Baba Wild Slots - Vegas Casino

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Blackjack 21 - HOB
High 5 Casino: Home of Slots
Show Me Vegas Slots Casino App
Texas Poker: Pokerist Pro
Texas Holdem Poker
Billion Cash Slots-Casino Game
Multi-Strike Poker™
Vegas Slots - 7Heart Casino
DoubleDown Classic Slots
Coin Dozer
Mega Hit Poker: Texas Holdem
Hard Rock Social Casino
Bingo！
Viva Slots Vegas Slot Machines
Bingo Frenzy: BINGO Cooking!
Slots Casino - Jackpot Mania
Slots Casino: Vegas Slot Games
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Magic Vegas Casino
Vegas Casino Slots - Mega Win
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Backgammon Live™ Board Game
The Walking Dead Casino Slots
Jackpotjoy Slots: Vegas Casino
Old Vegas Classic Slots Casino
FaFaFa™ Gold Slots Casino
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Clubillion™: casino slots game
Lucky Lottery Scratchers
Bingo Drive: Play & Win Online
Abradoodle Bingo: Fun Bingo!
Cash Fever Slots™-Vegas Casino

11.

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Royal Slots:Slot Machine Games
Praia Bingo - Bingo Games
Bingo Infinity
Vegas Craps by Pokerist
Real Casino Slots
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Hit 7 Casino : Vegas Slots
Real Slots | Best Bet Casino™
Fantasy Springs Slots | Casino
Live Play Bingo
Blackjack
Teen Patti by Octro
SpinToWin Slots & Sweepstakes
Teen Patti Gold, Poker & Rummy
Texas Poker
Hard Rock Blackjack & Casino
Vegas Nights Slots
Lucky North Casino|Slot Games
Bingo!™
HD Poker: Texas Holdem
Cashmania Slots: Slot Games
Blackjack 21-World Tournament
Blackjack 21: Live Casino game
Super Jackpot Slots Casino
Keno 4 Multi Card
Binion's Casino
Lottery Scratchers
Fishing Casino - Ocean King
Bingo PartyLand: BINGO! & Spin
GamePoint Bingo
American Scratchers Lottery
Ever Rich Slots
Keno Bonus Play
Spider Solitaire: Card Game

Plaintiff Sean McCloskey downloaded and played several of these

casino-style gambling games. Since July of 2019, he has downloaded multiple
games, including Coin Master, billionaire Casino Slots 777, Cash Frenzy and MyKONAMI-Real Vegas Slots. Beginning July 23, 2019, he purchased coins through
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the Apple App Store so he could continue to play for a chance to win free coins that
would enable him to enjoy the games for a longer period of time. In the six months
prior to the filing of this complaint, he paid $64.90 to Apple for the privilege of
continuing to play the illegal gambling game(s).
12.

A customer such as plaintiff does not have the ability to collect actual

cash as a result of “winning” games, but he does have the ability to win and therefore
acquire more playing time. Ohio’s gambling statutes prohibit this scheme, noting
that “[v]aluable consideration is deemed to be paid for a chance to win a prize” when
“[a] participant may purchase additional game entries by using points or credits won
as prizes while using the electronic device.” O.R.C. § 2915.01(C)(7). The Ohio
Supreme Court has also made it clear that that paying money in a game for a chance
to win free replays or more playing time constitutes illegal gambling under Ohio
law. See, e.g., Mills-Jennings of Ohio v. Dep’t of Liquor Control, 435 N.E.2d 407
(Ohio 1982) (holding that video poker game that offered free replays was illegal
gambling device).
13.

Apple is not some minor or incidental participant in these illegal

gambling games. It is the principal promoter and facilitator of the illegal activity.
Apple maintains dictatorial control over what apps can be downloaded from the App
Store, and the payment method to purchase in-app items. As the maker of the
Fortnite game alleged in a recent antitrust injunction lawsuit against Apple:
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Apple also imposes unreasonable restraints and unlawfully maintains a
total monopoly in the iOS In-App Payment Processing Market. Among
the oppressive terms that app developers have to accept, Apple coerces
all app developers who wish to use its App Store—the only means with
which to distribute apps to iOS users—to use exclusively Apple’s own
payment processing platform for all in-app purchases of in-app content.
Complaint for Injunctive Relief, Epic Games v. Apple, Inc., in the United States
District Court for the Northern District of California, August 13, 2020 ¶ 10 (copy
attached). As noted, Apple uses its unfettered control over apps played on iOS to
extract a hefty 30% tax on all purchases made to buy apps or in-app content such as
“coins” to gamble with.
14.

Apple has the ability, which it has employed on other apps, to geo-

restrict games so that they can only be played in certain states. In fact, with cash-out
gambling games it regularly restricts those game so that they can only be played in
states where that type of gambling is legal. Apple has also restricted gambling games
such as the ones made the basis of this lawsuit so that minors cannot download or
play them. It has the ability with existing technology it currently uses to prevent the
games at issue here from being played in this state.
15.

Apple’s App Store is not just a venue to buy iOS apps. It is a

promotional tool. Apple heavily promotes apps, such as the illegal gambling games
that form the basis of this complaint, that promise to bring in revenue. Revenue from
the App Store is the reason Apple is the most valuable company on the planet.

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16.

Thus, Apple enables, permits, promotes, and profits from illegal

gambling.
OHIO LEGAL FRAMEWORK
17.

Ohio has a strong public policy against gambling in this state. The

state’s strong public policy against gambling includes a statutory right of persons
who spend money on gambling to recover their money.
18.

The Ohio criminal laws pertaining to gambling are codified in Chapter

2915 of the Ohio Revised Code. Ohio law prohibits both gambling on “schemes of
chance” and “games of chance.” Each of these is defined in Section 2915.01:
"Scheme of chance" means a slot machine unless authorized under
Chapter 3772. of the Revised Code, lottery unless authorized under
Chapter 3770. of the Revised Code, numbers game, pool conducted for
profit, or other scheme in which a participant gives a valuable
consideration for a chance to win a prize, but does not include bingo, a
skill-based amusement machine, or a pool not conducted for profit.
"Scheme of chance" includes the use of an electronic device to reveal
the results of a game entry if valuable consideration is paid, directly or
indirectly, for a chance to win a prize. Valuable consideration is deemed
to be paid for a chance to win a prize in the following instances:
(7) A participant may purchase additional game entries by using points
or credits won as prizes while using the electronic device;
O.R.C. § 2915.01(C)(7).
(D) "Game of chance" means poker, craps, roulette, or other game in
which a player gives anything of value in the hope of gain, the outcome
of which is determined largely by chance, but does not include bingo.
O.R.C. § 2915.01(D)
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19.

The statute also defines “gambling device” to include “(3) A deck of

cards, dice, gaming table, roulette wheel, slot machine, or other apparatus designed
for use in connection with a game of chance.” O.R.C. § 2915.01(F)(3).
20.

As already noted, valuable consideration is not limited under Ohio law

to the situation where one gambles in the hopes of winning actual cash money.
Rather, “valuable consideration” specifically includes “additional game entries by
using points or credits won as prizes while using the electronic device. O.R.C.
2915.01(C)(7). As a matter of law, paying money to get “coins” one bets hoping to
win more “coins” so as to gain the “privilege of playing at a game or scheme without
charge” is gambling for valuable consideration under Ohio law.
21.

Ohio law makes it unlawful for any person to “Establish, promote, or

operate or knowingly engage in conduct that facilitates any game of chance
conducted for profit or any scheme of chance.” O.R.C. 2915.02(A)(2). Apple
promotes such games and knowingly facilitates their existence by allowing them in
the App Store, processing payments to the games, and profiting from this conduct,
all in violation of Ohio law.
22.

Ohio provides a statutory civil cause of action to recover money paid

and lost due to gambling. Section 3763.02 of the Ohio Revised Code provides:
If a person, by playing a game, or by a wager, loses to another, money
or other thing of value, and pays or delivers it or a part thereof, to the
winner thereof, such person losing and paying or delivering, within six
months after such loss and payment or delivery, may sue for and
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recover such money or thing of value or part thereof, from the winner
thereof, with costs of suit.
CLASS ALLEGATIONS
23.

Plaintiff seeks to certify and represent a class pursuant to Rule 23(b)(3)

of the Federal Rules of Civil Procedure. The class sought to be certified is:
All Ohio residents who downloaded, played, and paid money for
additional coins within games from the Apple App Store that featured
slots, roulette, blackjack, poker, keno, craps, and other kinds of casinostyle gambling games, bingo, or simulations thereof, where the player
had a chance to win coins or other means to play for additional periods
of time, during a period commencing six months before the filing of
this complaint and continuing to a date to be set by the Court following
certification. All employees of the Court, and plaintiff’s counsel and
their families are excluded.
23.

This class action satisfies the numerosity requirement of Rule 23(a)(1)

because joinder of all members of the plaintiff class is impracticable. There are
thousands of Ohio residents who are members of the class.
24.

It also satisfies the commonality requirement of Rule 23(a)(2) because

there are central questions of fact and law that are common to the class. Such
common questions include, at a minimum, (a) whether these virtually identical
gambling games sold through the App Store violate Ohio’s prohibition of illegal
gambling; (b) whether gambling for additional play-time constitutes valuable
consideration under Ohio law; (c) whether Apple participated in gambling through
its facilitation of the sale of in-app purchases through the App Store; and (d) whether

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plaintiff and the class members are entitled to recover their money pursuant to
Section 3763.02 of the Ohio Revised Code.
25.

The proposed class satisfies the typicality requirement of Rule 23(a)(3)

because the named plaintiff’s claims are typical of the claims of the class members.
Both plaintiff and the class members lost money in an effort to win additional playtime on these illegal gambling games.
26.

The named plaintiff will fairly and adequately represent the interests of

the class pursuant to Rule 23(a)(4). Plaintiff has no interests that conflict with the
interests of the class. Furthermore, plaintiff has retained competent and experienced
counsel with decades of experience litigating class cases.
27.

Plaintiff seeks certification of a class pursuant to Rule 23(b)(3), which

allows class treatment of a claim where:
(3) the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy. The matters
pertinent to these findings include:
(A) the class members' interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
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28.

The common questions of law and fact in this case vastly predominate

over any individual issues affecting only individual class members. The only
individual issue presented by these class members is the exact amount of money
damages to which each class member is entitled. Such damages issues are routinely
held not to predominate over common questions in cases like this. Indeed, the
individual damages issues will be quickly and accurately determined by examining
Apple’s own records.
29.

Class treatment is by far superior to individual litigation as a fair and

efficient way to adjudicate this controversy. Given the relatively small individual
amounts at issue, it unlikely whether there would be any adjudication at all without
use of the class device. No individual class member would rationally commence and
prosecute a lawsuit where the individual amount in controversy likely would not
exceed the filing fees.
30.

For this reason, none of the class members have any interest in

controlling the prosecution of separate actions.
31.

Likewise, to our knowledge, no class member has already commenced

an action concerning this controversy.
32.

It would much more desirable to concentrate this case in one action

rather than allow the prosecution of individual actions because, as noted, such

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individual actions would likely never be filed because there would be no motivation
for any individual class member to file an individual suit.
33.

We foresee no particular difficulties in managing this case as a class

action because 100% of the necessary information to compensate the individual class
members is contained in Apple’s own records concerning purchases made through
the App Store.
CAUSE OF ACTION
33.

Plaintiff, on his own behalf and on behalf of those similarly situated,

seek recovery of all sums paid through in-app purchases in these games made
through Apple’s App Store pursuant to Section 3763.02 of the Ohio Revised Code.
PRAYER FOR RELIEF
WHEREFORE, the premises considered, plaintiff asks the Court to:
1.

Take jurisdiction of this cause;

2.

Following discovery, certify this case as a class action pursuant to Rule
23(b)(3);

3.

Appoint the undersigned as Class Counsel and the named plaintiff as
class representative;

4.

Enter a final judgment against Apple awarding plaintiff and the class
members a refund of all money paid through the illegal gambling games
described herein;
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5.

Award Class Counsel reasonable attorneys’ fees and expenses to be
paid out of the judgment in favor of the class;

6.

Award the named plaintiff a reasonable sum of money for his services
in this case on behalf of the class, also to be paid out of the judgment in
favor of the class;

7.

Award interest and costs; and

8.

Award any other relief to which the Court finds plaintiff and the class

are entitled.
Respectfully submitted,
s/John E. Breen
__________________
JOHN E. BREEN (0015142)
BREEN LAW, LLC
7761 Chetwood Close, Ste. 100
Columbus, Ohio 43054
[phone]
[e-mail]
Trial Counsel for Plaintiff
Counsel seeking Pro Hac Vice
Wesley W. Barnett, Esq.
Davis & Norris, LLP
2154 Highland Avenue
Birmingham, Alabama 35205
[phone]
[e-mail]

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