Plaintiff Files Opposition Responses in Candy Crush Tournament Fraud Case

Defendants King and Activision Blizzard’s assertion in their motion to compel mandatory alternative dispute resolution that plaintiff Sorina Montoya agreed to rules requiring her to arbitrate is “wrong for several reasons,” said Montoya’s Tuesday opposition (docket 3:23-cv-00314) in U.S. District Court for Eastern Virginia in Richmond.

Montoya sued the companies in May (see 2305110011), alleging game developer King and Activision misled contestants about their odds of winning a March-April mobile game tournament to get them to bump up their in-app purchases. Montoya asserts defendants “did what they could to mislead contestants into thinking that they were doing well vis-a-vis their competitors, that there were few other players against whom they were competing, and that they had a good chance of making the Finals in London.” That kept players spending money on in-app purchases, the complaint said. Montoya spent over $3,000 on the Candy Crush tournament.

In its Aug. 1 memorandum in support of its motion to compel mandatory alternative dispute resolution, Activision noted the top 10 finalists of the tournament were invited to participate in a live contest in London for a chance to win a share of $250,000, including the $100,000 top prize and a championship ring. “When Plaintiff did not win, she sued,” it said (see 2308020039). Candy Crush is a free-to-play video game, but Montoya, “facing better players,” chose to make in-app purchases to “outcompete others” and “’boost’ her chances of winning,” it said.

Montoya said Tuesday that Activision and King created a set of rules specifically for the tournament that didn't require arbitration. Those rules “take precedence” over the general terms of use that King defendants seek to invoke, said her response. King defendants failed to establish that plaintiff ever assented to either the tournament rules or the terms of use, she said. Because Montoya never agreed to arbitrate her disputes with King, “the matter of arbitrability cannot be referred to arbitration,” she said.

In response to King defendants’ motion to dismiss the fraud case for improper venue because they believe they’re not subject to personal jurisdiction in Virginia -- and because a “substantial part” of the events at hand did not occur in Virginia -- Montoya said defendants are “wrong on both counts.” King defendants “purposefully availed themselves of the privilege of conducting business in Virginia,” Montoya’s claims arise out of her activities in the state, and the exercise of personal jurisdiction over King defendants “is constitutionally reasonable,” said Montoya's response. King defendants’ “deceptive administration” of the tournament that caused Montoya injury “occurred in Virginia,” it said.

Montoya opposes King defendants’ motion to transfer the venue to California and their assertion that by participating in the tournament she agreed to rules that required her to litigate there. The tournament rules don't require her claims to be litigated in California, and they take precedence over the general terms of use King defendants seek to invoke, said the response. Even if the rules placed venue in California, Montoya never agreed to the rules, and she never agreed to a California forum selection clause, she said.

King defendants brought a motion seeking to dismiss Montoya’s claims for declaratory and injunctive relief, arguing the tournament, which ran March-April, already ended so she's not at risk of future harm. King defendants “are mistaken,” she said in her Tuesday response to their motion to dismiss those claims. Montoya filed her complaint while the tournament was in progress “and while numerous class members were in the process of being injured” by defendants’ actions, said her response. Defendants conducted numerous tournaments in the past and “are certain to conduct many more in the future,” leaving plaintiff and class members “very much at risk of future harm unless the Court steps in to compel Defendants to conduct future tournaments fairly." Injunctive relief "is appropriate here,” she said.