Pokémon Go’s Virtual Trespass Suit Reaches Settlement Agreement

Can a video game company
be held liable for placing virtual items on private property? The answer is –
maybe. On February 14, 2019, the developer of the mobile game Pokémon Go, Niantic,
reached a settlement agreement with class action plaintiffs who alleged that
the game caused players to trespass and create nuisance on private properties.

For those unfamiliar with
the game, Pokémon Go is an “augmented reality” game where the fictional game
world is superimposed on the real world. Players move through the game world
not by pressing buttons on a controller, but by physically moving in the real
world. The game is centered around players finding and catching fictional
creatures called Pokémon. In order to catch Pokémon, players must move close
enough to the real-world location that the game has designated as that
Pokémon’s location. Different types of Pokémon appear in different places and
at different times of day and night. The game also designates certain
real-world locations as Pokéstops, where players obtain in-game items, and
Pokémon Gyms, where players battle each other. As such, for players to advance
in the game, they must visit various real-world locations. However, the
game did not restrict its game world to public spaces. It has placed Pokémon,
Pokéstops, and Pokémon Gyms on or nearby private properties. The
plaintiffs in the lawsuit alleged that the game “effectively
transformed those properties into scavenger hunt grounds” and that the game
“strongly encourage[ed] players to visit those locations—and to trespass if
necessary to do so.”

The terms of the
settlement agreement can be found here
(pages 6-8). Essentially, Niantic has agreed to vamp up its online complaint
system to provide private property owners with a means of removing Pokéstops
and Pokémon Gyms within 40 meters of their property. Niantic promises to
resolve complaints within 15 days for 95% of cases each year. In addition,
Niantic will maintain a database of complaints in order to avoid placing future
Pokéstops and Pokémon Gyms on single-family residential property. Niantic will
also add new warnings to the game to remind players to be courteous to others
and be respectful of their surroundings. Interestingly, the agreement does not
mention adjusting Pokémon spawn points, so it is conceivable that Pokémon will
continue to spawn on private property.

While the parties have
reached an agreement, the settlement is still subject to approval by the judge,
so everything is still tentative. If the settlement is approved, it is worth
noting that it is proposed as a Rule 23(b)(2)
class action settlement, and only injunctive or declaratory relief is
available.[1]
Members of the plaintiff class must file individual suits if they want money
damages. To allow for this, the settlement agreement expressly reserves the
right for plaintiffs to seek monetary relief, stating that the plaintiffs are
only releasing their injunctive claims against Niantic. It remains to be seen,
however, just how many plaintiffs will take up the opportunity to press their
claims. In the settlement agreement, Niantic denied all charges of wrongdoing
or liability arising out of the case. It also denied that the plaintiff class
is entitled to any relief based on the conduct alleged. Any plaintiff who tries
to file their individual suit must prove their case from scratch. Considering
that the law over virtual trespass is untested in the courts, a plaintiff will
likely face high legal fees accompanied by unknown payoff and chance for
success.

On a related note, the
settlement proposal also contains an agreement to mediate the unreleased claims
of only the named plaintiffs. While this provides an avenue for the class
representatives to get money damages, there is serious doubt as to whether this
part of the agreement will be approved by the judge. As mentioned earlier, the
judge must approve the settlement before it can take effect – he or she must
evaluate whether the proposal meets the requirements as set out under Rule
23(e). Among other things, Rule 23(e) requires that the judge
consider whether “the class representatives and class counsel adequately
represented the class,” and whether “the proposal treats class members
equitably relative to each other.” In this case, the class representatives are
getting the chance to mediate their unreleased claims, but other class members
are not. This is arguably not equitable treatment of the class members relative
to each other. This also creates the concern that the settlement is reached not
because it is a good deal for the entire class, but because it is a good deal
for the class representatives, thus raising issues of fairness and adequate
representation. It is likely for these concerns that the lawyers expressly made
this part of the agreement severable from the rest of the agreement – if the
judge finds this part of the agreement invalid, the rest of the agreement can
be saved.

If the suit is settled, it would leave the
question open of whether one can be held liable for trespass for leaving
virtual items on private property without the owner’s consent. The plaintiffs
in this case argued that to succeed on their claim, they only need to prove
that Niantic trespassed or did “something by way of encouragement, advice, or
suggestion” that led Pokémon Go players to trespass. Helsel v. Morcom, 555 N.W.2d 852, 856 (Mich. Ct. App. 1996).
Niantic argued that the plaintiffs not only need to show that it did something
to encourage players to trespass, but that it also knew that its actions would
lead to substantial certainty in trespass. Restatement (Second) of Torts § 158,
cmt. i-j (1965). As evidence that it did not encourage players to trespass,
Niantic points to its policies and warnings in-game which urged players to stay
off private property. However, given that a large portion of the game’s player
base is composed of children and teenagers, it is unclear whether policies and
warnings are enough to achieve the intended effect. To err on the safe side,
future developers of “augmented reality” games should carefully decide where
they place their virtual assets and take care to avoid placing them in places
that could encourage players to commit torts.

[1]
The Supreme Court in Wal-Mart Stores, Inc. v. Dukes held that claims for monetary
relief may not be certified under Rule 23(b)(2), at least when it is not
incidental to the injunctive or declaratory relief. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011).

David Jiang is a JD candidate, 2020, at NYU School of Law.