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SIHTAF: The Video Game Addiction Lawsuit

videoaddict1Gregory Cherms is the father of an adult son who is allegedly addicted to video games. I don’t know which game or games in particular this young man was playing so much that his father felt it necessary to take some kind of action. It’s not particularly important.

Most parents finding such behavior in their adult children would shake their head in sad frustration and disappointment at the spectacle of their children playing video games all day long, but in September of last year, the elder Mr. Cherms chose a different path. He sued Electronic Arts, Sony Online Entertainment, and Warner Brothers Entertainment for not providing warning labels on their products that they could be addictive.

This is the sort of thing that leaves a lot of people with the phrase “frivolous lawsuit” on their lips, and so I’m going to need to have a one or two sentence remark about it when someone expresses outrage at some undefined point in my future like a cocktail party or a conversation on an airplane, when I’m sure to be put on the spot to apologize for something someone else has done for no better reason than that I’m a lawyer and thus associated with a legal system about which my interlocutor is likely not well-educated.

That’s a dicey proposition when, as here, I’m kind of inclined to agree that this particular use of the legal system wasn’t a very good one, but I want to resist getting sucked into a dreary dialogue about whether the doors to our courthouses ought to be closed based on an impossibly ill-defined standard, poorly articulated by someone who is already both a bit tipsy and lacking either experience with, or perspective about, the legal system he criticizes. But knowing this will likely soon enter the realm of urban myth, needs must I arm myself with both knowledge of what actually happened, and a pithy response to the near-inevitable challenge.

So here’s what actually happened.

The defendants responded to Mr. Cherm’s suit with a motion to dismiss this case under California Code of Civil Procedure section 425.16 to have the lawsuit thrown out of court at an early date, and require the plaintiff to pay the defendant’s attorney’s fees and court costs for the privilege of having sued the defendant and lost. In order to make such a motion, the defendants prove that the activity purportedly giving rise to liability as alleged in the complaint is conduct of public interest protected by the First Amendment right of free speech or the California Constitution’s equivalent of it. If the defendants can do that, the burden falls upon the plaintiff to produce admissible evidence that he is likely to win the lawsuit on its merits, notwithstanding the defendants’ invocation of their free speech rights.

This law has come in to play in many prominent California cases, most famously one involving a photograph of a well-known entertainer’s lovely home. Surprisingly, the statute is not well-known by a lot of the attorneys I come across, and consequently I have had the pleasure of availing my clients of it on multiple occasions throughout my career. And when I say “pleasure,” I mean that exact word: filing and winning one of these motions is one of the thrills that attracted me to the legal profession in the first place lo these many years ago. I get to vindicate an important basic right of all citizens. I get to research and apply interesting law. And, I get to pass along my fees to the other guy who was foolish enough to walk right in to a trap. It’s fun.

I’ve never had to oppose such a motion. I think the motion was probably appropriately granted in Mr. Cherms’ case. But I do think that it’s perhaps a closer case than the plaintiff — who was not a lawyer and who filed the lawsuit on his own without the assistance of counsel — could have made it.

Let there be no doubt that the authors and publishers of video games are acting within the ambit of First Amendment protections. That their works of art are often not particularly highbrow, and that they are made for profit, are matters completely irrelevant to this analysis. What I wonder about, though, is whether the grounds cited for use of this special motion by the defendant were well-taken:

Specifically, defendants insist that developing, publishing and selling videogames are acts “in furtherance of” their First Amendment free speech rights and further that the availability of videogames is an issue of “public interest,” both of which fall within the scope of protections afforded by §425.16.

 

The plaintiff chose not to contest these assertions, so the Court appropriately treated that matter as settled for purposes of considering the motion.

Other products are sold under requirements that they bear warning labels. Tobacco products, sometimes alcohol, medications, and all manner of consumer products like power tools, ladders, and household cleaning solvents or soaps. Particularly here in California, nearly any sort of product that is theoretically ingestible, even if not intended for bodily consumption, is likely to need a warning label of some sort under Proposition 65. These products are still widely and easily available and the cost to the manufacturers of providing these warning labels is in most situations close to trivial — and more importantly, do not impermissibly diminish their manufactuers’ ability to engage in free speech.

What is qualitatively different about a video game, as opposed to soap, that places an undue burden hampering distribution of the product to the retail market that would make a warning label requirement a burden on the publisher or the author’s rights of free speech? Like the motion picture industry, the video game industry has enacted a form of self-regulation, printing labels disclosing the games’ content to consumers (and parents of those consumers). All of the defendants in this case participate in that voluntary practice and they seem to have suffered no diminishment whatsoever in their ability to communicate with their audiences. So how big a burden would a legal requirement to do pretty much what they are already doing voluntarily be?

I hesitate to say that a requirement that video game publishers also disclose that some consumers of their products have been known to consume the product immoderately and at the expense of other dimensions of a balanced life is required. All sorts of products, both entertainment products or ingestibles or who knows what else, are susceptible of being used in an obsessive, addictive fashion, and the problem is not the provider of the product. A guy who buys a bicycle and gets really in to bicycle riding, enough so that he abandons his job and neglects his family, might be said to have become addicted to bicycling — and the manufacturer of the bicycle is not responsible for that whether there is a warning label on the bike or not, he may even get healthier lifestyle and start to buy kratom and other natural supplements to help his body. So I don’t think much of the merits of Mr. Cherms’ argument that a video game must contain a warning label that some people get addicted to video games.

I also question whether the availability of video games is an issue of particular public interest. Certainly I can see the argument — these are works of art, things that have an impact on the broader culture. But, given the widespread assumption that exposure to media content that sexually explicit, violent, or involves substance consumption can be harmful to children, I might even be persuaded that fashioning reasonable restrictions on the availability of these works of art to young children is a matter of public interest greater than the freedom of the publisher to sell them to anyone who wants to buy them.

But regardless of the free speech issues, the ultimate outcome of the case seems correct to me as a matter of legal causation. Mr. Cherms’ son is an adult. He is responsible for his own actions and if those actions include playing video games to the point that he neglects his family, his education, and his career, that’s on him. Mr. Cherms ought to have no more complaint about the video game publishers creating an addictive product than he would have a claim against Diaego if his son drank too much and had become an alcoholic.

Also, Mr. Cherms’ evidence on the merits sucked. It consisted mainly of the video game box covers (sans addictivity-warning labels) and an excerpt from a book expressing an opinion about the advisability of such labels. There were pleading problems, too, that probably would have required a lawyer’s touch to rescue.  The whole opinion is only two pages long and the bulk of it should be readily understandable by a layperson.

So even though I realize that it is an imposition to require a product manufacturer to provide a warning label, and the degree of that imposition is one which I think is a bit murkier than was stipulated in this case, I agree with the result. Perhaps in an ideal world, there would be a more thorough exposition of the speech issues. It’s not an ideal world, though, and the opinion reaches the same result I would have reached had I been the judge, notwithstanding the fact that this judge took a slightly different route to get to that result than I probably would have.

And let’s not forget that it’s far, far better than Mr. Cherm file an unmeritorious lawsuit than that he not have access to the justice system and grow frustrated and bitter with his inability to air his grievance anywhere, and then locate a weapon to take with him to the defendants’ places of business and resolve matters the old-fashioned way.*

But those aren’t the sorts of points that a cocktail-party interlocutor will absorb easily.

So when that drunk corners me and accusingly says, “Oh yeah? Well, what about all those lawyers filing frivolous lawsuits against video game companies?” I need to have a ready response. It has to be fast to say, and very easy to understand, because it’s quite likely my interlocutor will lack the patience, impartiality, and sobriety to massage the nuances.

I think my answer will be, “What? The guy that tried that lost.” Exploration of gray-shaded wrinkles in public policy is better-suited for a forum like this.

 

* I don’t imply that Mr. Cherm, a man whom I do not know, would ever do such a thing. But it’s tragically easy to image someone doing that. And that’s why we have open, public courts in which anyone can file a lawsuit against anyone else, for anything, at any time.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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61 thoughts on “SIHTAF: The Video Game Addiction Lawsuit

    • Many people would say “Five and a half months isn’t minimal,” but it is. A few other wrinkles with this particular motion which I elided from the OP (not hugely relevant to the post’s focus), will also have minimized the burden of the litigation on the defendants. What I’ve described here is pretty close to as good as it gets for throwing meritless suits out at an early stage of litigation.

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      • It is amazing how long minimal can be in court. I, along with a bunch of other state employees, were sued by a former client. Even though we all had some sort of immunity due to our specific gov roles, so we can’t be sued, it took at least six months for all the motions to go through and be heard before the inevitable dismissal.

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      • : Justice too long delayed feels like an injustice even to the winners. Balancing that imperative against the requirements of due process and with limited resources thanks to constricting budgets is a tricky balancing act.

        If I ever do make it on to the bench, improving this state of affairs will become my special mission.

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  1. I am a much newer lawyer than you but I am also a strong advocate of plaintiff’s law and generally think that there are lots of hidden facts that get omitted from yuk yuk jokes including the famous/infamous Hot Coffee lawsuit.

    But sometimes it seems hard to determine the differences between a legitimate plaintiff’s lawsuit and/or class action and a silly one.

    Other nations seem better at stronger regulations to keep these kind of issues from arising. In the United States, we dislike regulation and need to rely on the plaintiff’s bar for accountability.

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    • …there are lots of hidden facts that get omitted from yuk yuk jokes including the famous/infamous Hot Coffee lawsuit.

      I’m sensitive about that, too. That’s why I bypassed newspaper and blog reports about this and dug around until I found the actual minute order straight from the Court. IIRC, the judge who decided this, now formally retired and serving off-and-on as a pro tem or on short-term assignments, was the first judge before whom I ever did a jury trial. He seems to enjoy a very good reputation with both sides of the bar in Sacramento.

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    • Would it help to shift the burden a little bit in these cases? Instead of “plaintiff pays the fees” we shift it to “plaintiff’s counsel pays the fees.” In theory, the person you’re hiring to file the lawsuit should a have a much better idea than you do about whether it’s going to get tossed.

      If an electrician says, “Sure, we’ll do it your way. It won’t burn the house down,” and it turns out to be a really dumb idea that burns your house down, “It was your fault for trusting my professional judgment,” doesn’t cut it.

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      • If the plaintiff was unrepresented or representing himself, why do you feel the need to apologize for the profession? You can point out to people who sneer that this guy was not a lawyer and filed his own case and most lawyers would not take on this kind of case (probably). The courts are filled with all sorts of people who file lawsuits on their own without basis, you can even talk about why access to justice is important for the people with good cases who can’t afford lawyers and need to do it on their own.

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      • The drunk guy in that party in my future (and maybe yours) isn’t going to distinguish between an attorney-filed suit and a pro per suit. He thinks like this: “Lawsuit bad! Lawsuit mean lawyer. Lawyer BAD!”

        Some of that’s going to be the Coors Light at work and some of it is going to be the claptrap he read on his seventeenth-FW chain e-mail but the rest of it is going to be sincere, hard-won ignorance. I shall be ready to meet him on his terms, with truthful statements he can comprehend and derive emotional satisfaction from.

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      • You’ve actually asked the pertinent question to the bulk of the OP, . In California, Code of Civil Procedure section 128.7 requires that every party or attorney who presents a document to a court represents to the court that the arguments and legal theories contained therein are warranted by either existing law, or by a good-faith argument to extend the boundaries of existing law. Based on what I said above, it seems to me that this lawsuit would probably be justified as an argument to extend existing law. Other kinds of products carry warning labels by operation of law, without violating the First Amendment or its state level equivalent. So while the lawsuit is a loser the way the law exists right now, it seems possible to me to see a world where a lawsuit like this could be, potentially, a winner. That doesn’t mean that I would like to see the lot this way, but it’s not laughable that it could be that way at some point in the future. And a great many attorneys take chances on lawsuits that push the edge the way this one. This one pushed the edge and failed, but every once in a while, someone pushes the edge and succeeds. Those lawyers potentially wind up with large judgments under their belts.

        The answer to your question, then, is yes. I think it would be ethical to do this kind of work on behalf of a client, as long as the client understands the risks, costs, and likelihood of success, before paying that lawyer money to do this kind of risky work.

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  2. Anything that produces endorphins is potentially habit-forming/addictive.

    Perhaps a “warning: this product has been determined to produce endorphins” could be placed on everything that inspires (or could inspire) an measurable endorphin response in a subset of the society.

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  3. As I read this, I thought, “These cases only really bother me when it seems that the “wrong side” won.” So, I’m sort of impressed with myself that that is roughly where you land in your breakdown: why get upset about something that was ultimately of no consequence, as it appears this case was? It seems important to note that I am not well-equipped to definitively determine who is on the “wrong side” in every case.

    I do have concerns about what sometimes feels like our society’s increased reliance on the civil trial system to resolve any and all disputes. It concerns me on a number of levels. But I’m hard pressed to come up with a formal mechanism for addressing the trend, as it would ultimately pervert justice further by limiting people’s access to the system. The most I do is implore people to take greater personal responsibility whenever possible and to exhaust other options whenever possible before filing a lawsuit.

    Full disclosure: Aside from participating in class action suits that involved checking a box on a postcard mailed to me and getting a check for 97-cents 6 weeks later, I have once voluntarily entangled myself with the legal system to seek redress. And I only did so after the person I was dealing with ceased to respond to any and all communication attempts. The claim got her to involve her lawyer who spoke with my lawyer. My lawyer determined that my case was weak and not worth pursuing. So we dropped it. He could only make this determination after getting a more complete picture of what went on, which was impossible prior because the other person refused to communicate. Had I spoke with him from day one and said, “Here is what I’m saying and here is what she is saying,” he likely would have stopped in then. But because of her silence, all I went in with was what I was saying. And that was after doing everything else I knew possible save for showing up at her place of business, which seemed likely to escalate rather than deescalate the situation.

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    • The English speaking world has resorted to the civil trial system to resolve all disputes since the common law started to emerge in the Middle Ages. We and our ancestors have always been a litigous group. Its a lot more civil than blood feuds and duels and other informal means of settling disputes.

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      • , this did not work in the past and there is no reason to think it would work now. People have been suing each other over conflicts since the Middle Ages. If there is a case back log than we just need more judges to resolve them, something perfectly in line with even the strictest belief in limited government.

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      • Many disputes will and should go to trial. But it is my understanding that far more things go to civil court now than did in the past. I’m sure some of that is good — more people with greater access and more justice — but some of it is probably bad. I’d want to address the bad, t’is all.

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      • Courts have become far more open to people representing themselves especially in civil cases. That does lead to a very low bar to cross to file a lawsuit. Lots of people can file a suit without having anything resembling a clue about what the law is and what the result they are looking for is. While i think its good people can access the Court without a lawyer in general, the rise of all sorts of weird/clueless/ignorant lawsuits is one those unintended consequences.

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      • , its usually not a very good idea for people to represent themselves at court even if the stakes are small. They have no idea what they are doing and can cause a lot of damage to valid claim in many cases. Having to bail out a person that represented themselves pro se is not easy. For some simple actions like no-fault divorce without any disagreement than finding a way to provide access to the courts without lawyers is a good thing.

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      • An armed society is a polite society.

        Eventually, maybe. It would appear to take a long time in practice. From Wikipedia: “…during the reign of Henry IV, over 4,000 French aristocrats were killed in duels ‘in an eighteen-year period’ whilst a twenty-year period of Louis XIII’s reign saw some eight thousand pardons for ‘murders associated with duels’.” Also, doesn’t Heinlein sort of casually toss off the fact that the mortality rate amongst new arrivals ran as high as 90%? You’ve also got professional duelists who can be as rude as they want because no one is going to challenge them out of fear.

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    • It would be great if people were more direct and forthright in communications with one another aimed at resolving disputes. There is a disincentive built in to the formal litigation process to that, however, which is that sometimes statements made along the way (especially apologies or other expressions of regret) are characterized as admissions of liability.

      This is a big part of why, for instance, a certain category of doctors are afraid to say the words “I’m sorry” to patients whose treatment outcomes are not favorable — they are afraid that if they way “I’m sorry” the patient, or rather the patient’s lawyer, will say “that was the doctor admitting that she screwed up, so she has to pay.” Laws and rules of evidence exist to mitigate this effect and protect certain kinds of statements (particularly those made in conjunction with offers to compromise the disputes) but the fact that it happens at all creates a chilling effect, and sometimes there really are admissions of liability that a jury ought to hear.

      As for the rest of this, see my footnote to the OP. Lawsuits are expensive and stressful, I know, but they’re way better than funerals.

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  4. There’s a rule(*) in software engineering that, the faster you find a bug, the less expensive it is to fix. If you introduce a bug but fix it before anyone else sees it, that’s very cheap. If you share it with other developers so that they run across it too, it’s wasting more people’s time (and time is money in at least three ways.) And if you ship it to customers so that it affects them, you’re costing yourself reputation in addition to the cost of tracking it down and creating and shipping a patch.

    So perhaps there’s a place to optimize this process by requiring someone representing himself to spend an hour with a legal consultant (payed for by the state) who can tell him “You have every right to sue, but you’re almost certainly going to lose and wind up owing court costs. So you’re looking at spending five figures, most of it going to the guys you’re suing, for the privilege of getting laughed out of court. Your call.”

    * Unlike GIGO, a real one.

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    • So perhaps there’s a place to optimize this process by requiring someone representing himself to spend an hour with a legal consultant (payed for by the state)…

      This has possibilities. If the government-provided mechanism for dispute resolution has become so complex that it is necessary for an average person to hire a $300/hr specialist to navigate it, there’s an obligation to provide access to such specialists at no cost for at least an initial consultation. I wouldn’t have the state pay them, though. The specialists now control access over who can or can’t practice as a specialist; in return, require them to provide the initial consultation work pro bono. I’d make it mandatory. Each year, submit the list of people to whom you provided that service. If there aren’t enough people on your list, you don’t get to practice for pay the next year. Random audits to verify that the people really did consult you, and were treated in a reasonable way.

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  5. I am wondering if video game companies can be held liable if they have logs of excessive times devoted to playing their games, yet they do not make efforts to warn the gamer and the public? For instance, a gamer playing 100 hours weekly is not healthy and when game companies have record of this, is there legal precedent for companies to do anything about this information?

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  6. I’m pretty surprised to hear that critics of frivolous torts are so common that it’s become typical party chatter. The only cases I can think of that are in the pop-culture like that are the McDonald’s coffee burn-victim (which was 20 years ago) and the John Edwards “Jacuzzi case” (which is probably only known to those weird people that read blogs). Is there like a pantheon of frivolous cases that you typically get accosted with at parties or is it a general “people be suin'” attitude? I’m not a lawyer but I do enjoy snappy rebuttals, so this is of personal relevance to me.

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    • I know of a bunch of ridiculous and abusive lawsuits that were filed, but I think it speaks pretty well of our system that they don’t usually get very far. I’ve only been in a working courtroom a few times, but I’ve never been in a courtroom where the judge was a buffoon who was easily swayed by nonsense. In my experience, if I smell bullshit, the judge usually started smelling it a few minutes earlier.

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      • Frivolous-sounding lawsuits make the news a lot because they can be described (often inaccurately) in a short paragraph and give the reader a good, healthy jolt of outrage. They also build the case for “tort reform”, which, added to deregulation, and the high threshold for finding their officers criminally liable, would completely immunize corporations from the consequences of their actions.

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