From Quinteros v. Innogames, decided Friday by Ninth Circuit Judges Jacqueline Nguyen, Eric Miller, and Daniel Collins:
Penny Quinteros challenges the district court’s dismissal of her third amended complaint, which lodged several claims grounded in harassment she says she endured while playing the defendants’ online video game, Forge of Empires.
First, a bit of the factual backstory from the district court decision, as recounted by Judge Ricardo Martinez (W.D. Wash.) (with some record links added): For purposes of this Motion, the Court will treat all facts alleged in the latest Amended Complaint as true. A brief outline of the relevant facts follows.
The plaintiff, who used the handle “TwoCents,” played Forge of Empires nearly every day without interruption from 2016 to 2019, accumulating more than 10,000 hours of gameplay.
The plaintiff contends that the game is psychologically addictive and that she became psychologically dependent on or hooked to it. She asserts that rather than caution players about the game’s addictive potential, InnoGames exploited users through “micro-transactions.” Relying on assurances from InnoGames that the game was fair, she sought to master it. Her dependency and drive to advance allegedly led her to spend over $9,000 on micro-transactions.
Circa July 2016, the plaintiff began to experience gender-based harassment from other players, some of whom she claims were covert InnoGames moderators, senior moderators, or community managers. These individuals and/or staff members allegedly accused her of being a man and began soliciting her online friends and co-players to disengage from her socially or in gameplay. The plaintiff pleads:
These other players, along with secret InnoGames staff moderators, purportedly told her that she had to prove she was a real woman by sending a photograph of her breasts. They informed her this would be the only way the harassment would cease. Believing the statements from InnoGames and Julie Blan that the game was enjoyable, fair, and its rules enforced evenly, she sent a photograph of her breasts (visible through a somewhat see-through bra) to someone she considered a friend and a neutral third-party player, known as Gensmoky, via a screenshot link.
{The plaintiff alleges she registered a copyright for this image of “her breasts in a somewhat see-through bra” three years later, on September 3, 2019. The image has been filed as Defendants’ Exhibit. The Court denied a motion to seal that exhibit. The order described the image as “a photograph depicting Plaintiff Ms. Quinteros’ upper torso in an opaque teal sports bra covering her entire chest.” Where a sports bra would naturally dip down in front, the plaintiff notes that she tucked in a cloth to obscure exposed skin. The accompanying note reads, “fuck off [unintelligible] Macy, DD, and the [unintelligible] Love, TwoC[ents].”}
The plaintiff alleges that the defendants were involved in ongoing harassment through their roles as moderators of the game’s chat feature. She reports being subjected to remarks by other players such as insults implying sexual degradation and derogatory terms. The identities or usernames of the harassing players or staff are not specified. The plaintiff alleges she was singled out by unnamed moderators “because she does not display ‘typical female’ behavior.” A game moderator allegedly criticized her for a “vulgar upbringing.” Additional moderators allegedly accused her of “drama” or of letting her emotions run high.
Ms. Quinteros believes the conduct described above occurred, at least in part, because InnoGames ran advertisements for the game that contained sexually explicit material, thereby creating an unsafe environment for women players.
She informed InnoGames and at least some of the individual Defendants about the ongoing harassment and asserts that the harassment violated InnoGames’ Terms and Conditions for playing Forge of Empires, yet the defendants allegedly failed to prevent it. She contends that rather than safeguarding her, the defendants discriminated against her by enforcing rules disparately against her because of her gender, altering rules, and enforcing certain rules against her alone.
In bringing this harassment to light, the plaintiff, for reasons not specified, also engaged in harassing and offensive language herself. This is reflected in her attachment to her first Amended Complaint. Examples of harassment cited by the defendants include a string of profane and demeaning remarks directed at InnoGames’ moderators and managers, with explicit language shortened by asterisks. The plaintiff even threatened to change her username to a crude string of characters. In what may be described as the most profane attack directed at support staff, she wrote language that was openly insulting and sexualized. The exchanges with support staff took place through an online customer-support channel. In response to the most vulgar message, InnoGames’ support staff stated that they had repeatedly asked her not to curse or verbally abuse their team; while customers have a right to service, they do not have a right to verbally abuse staff. They analogized the situation to a customer abusing store staff in the real world, where management may remove a disruptive customer.
Eight minutes later, the plaintiff replied that she had not verbally abused anyone, and argued that the staff had pressured her to adjust her manner of address to silence her rights as a woman. The dispute with customer support continued for several pages.
Some excerpts from the Ninth Circuit’s analysis:
[1.] Quinteros’s negligence per se claim contends that an InnoGames employee could access information about her, including a photograph, and release it to third-party players. This theory relies on vicarious liability, because an unknown third-party moderator—not any defendant—engaged in accessing and distributing her photograph. The vicarious-liability theory fails because Quinteros does not allege that the moderator acted on InnoGames’s behalf. Under Washington law, if an employee deviates from the employer’s purposes to pursue a personal objective, the employer is not vicariously liable. The same result follows if the moderator was InnoGames’s agent rather than an employee.
Quinteros’s negligent-supervision claim also fails. While an employer has a duty to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others, it is not liable for negligent supervision unless the employer knew, or in the exercise of reasonable care should have known, that the employee posed a danger to others. Because the moderator who allegedly harmed Quinteros was unknown to InnoGames, she does not plausibly allege that the company knew or should have known of any “dangerous tendencies” of that particular moderator. The failure-to-protect claim faces a similar shortcoming.
Finally, the statements by defendants Julie Blan and Richard Stephenson to Quinteros that they would enforce the rules uniformly against all players to prevent her harassment did not create an affirmative duty to rescue Quinteros from others’ conduct. Absent more, these statements merely reiterated policy and expressed an intent to investigate, and do not plausibly amount to a voluntary undertaking of a special duty to assist an individual in need.
[2.] The district court properly concluded that Quinteros has not stated a defamation claim. She alleges that a moderator disclosed an “intimate image” she had sent to another player “for the express purpose of generating sexually explicit and harassing comments against the Plaintiff” and that the image was directly accompanied by harassing statements. Even if the dissemination of an altered image could support defamation, Quinteros does not allege that the “intimate image” was altered. Consequently, statements based on its disclosure could not be false. Nor can any negative inference drawn from the image support her claim, because under Washington law a plaintiff cannot base a defamation claim on the negative implication of true statements.
She also contends that the disclosure provoked harassing and defamatory statements, but the district court observed that she offered no facts about who made the statements or when, where, or to whom they were made. As for statements attributed to Blan and Stephenson that she was “crazy” or “a liar,” those were not actionable because their audience and context suggest they were personal opinions and did not imply undisclosed facts.
[3.] Because Quinteros fails to plead negligence or to plausibly allege any physical injury arising directly from the defendants’ conduct, she cannot maintain a claim for negligent infliction of emotional distress.
[4.] Likewise, Quinteros fails to state a claim for intentional infliction of emotional distress. A claim of this type requires conduct that is outrageously extreme, beyond all bounds of decency, and intolerable in a civilized community. Here, she alleges only that the defendants inconsistently applied certain rules to her, aided her alleged harassers in expelling her from the game, and sought to conceal moderators’ misconduct. None of these allegations reaches the level of outrageous conduct.
[5.] The district court’s dismissal of Quinteros’s gender-discrimination-in-public-accommodations claim was proper. The court correctly held that her allegations—stating that her gender was a substantial factor in the alleged discrimination—were vague and conclusory.
[6.] Quinteros also fails to meet the heightened pleading standard for fraud. Her principal claim is that the defendants represented that Forge of Empires’ rules would be enforced fairly while they were not, but she fails to specify with particularity what statements were made, by whom, when, and how she was misled.
[7.] Quinteros does not state a claim under Washington’s Consumer Protection Act (CPA) for unfair business practices. A private CPA plaintiff must show that the action would serve the public interest. Washington courts consider several factors to determine public interest, including whether the acts occurred in the course of business, formed part of a pattern or generalized course of conduct, were repeated before the plaintiff’s involvement, posed a real and substantial chance of repetition, and, if a single transaction, affected many consumers. Applying these factors, she fails to establish that her CPA claims concern the public interest.
[8.] Quinteros’s products-liability claim for a design defect fails. While she identifies features of Forge of Empires she contends are addictive and harmful, she does not provide specific factual allegations showing that the game was unreasonably addictive in its design or not reasonably safe.
[9.] With regard to her breach-of-contract claim, Quinteros does not plausibly allege the existence of a contract between herself and the defendants that obligated them to refrain from transmitting images or engaging in verbal harassment. Likewise, none of the allegations suggest that Quinteros was a third-party beneficiary of an agreement between the defendants and other users.
[10.] For promissory estoppel, a promise must be clear and definite and imply an intention to act or refrain from acting in a specified way, such that the promisee reasonably understands a commitment has been made. Quinteros fails to allege a clear and definite promise, alleging only that she relied on unspecified statements of fairness.
[11.] Quinteros contends that the copyright violation occurred before she registered the image with the U.S. Copyright Office. However, she is entitled to statutory damages and attorneys’ fees only to the extent infringement occurred after registration. Because she does not allege other damages arising from the alleged copyright infringement with specificity, her copyright claim was properly dismissed.
[12.] Quinteros’s gender-discrimination-in-employment claim fails because it merely asserts, on information and belief, that the reason she was not hired was her sex. She provides no underlying facts to support this bare assertion, and without more, the claim remains speculative rather than plausible.
Friday’s Ninth Circuit decision also denied Quinteros’s motion to retroactively seal and proceed under a pseudonym, citing, in part, the rarity of such exceptions to the general rule of openness and noting that “this case has been proceeding publicly since 2019, and Quinteros has shown no additional threat to her privacy if it remains unsealed and she remains named.”
I asked Quinteros whether she had a statement, and she provided the following:
Federal law, 15 U.S.C. § 6851, offers relief to victims of intimate-image distribution and permits those victims to remain anonymous in lawsuits against the perpetrators. Unfortunately, the Ninth Circuit did not extend this protection to my case, which was filed before the law’s enactment. It is disappointing that I am again compelled to choose between protecting my reputation and protecting my rights.
As I understand it, the image filed in the district court by the defendants, which they claim is a copy of the deposit image submitted to the U.S. Copyright Office, does not appear to meet the definition of an “intimate visual depiction” under the § 6851 standard:
The term “intimate visual depiction” means a depiction of
(i) the uncovered genitals, pubic area, anus, or post-pubescent female nipple of an identifiable individual…
Yet Quinteros’s argument, quoted from her Ninth Circuit brief, is essentially that the court would dismiss the additional claims because the image could not be considered intimate. Ms. Quinteros also argued that the image could not be admitted as best evidence because it did not meet the evidentiary rule and was submitted by the defendants on a motion to dismiss; the district court did not address these particular objections. The district court stated that, although not strictly necessary for dismissing the claim, the pleadings relating to the image did not align with any reasonable interpretation of the image in the record. It asserted that the image does not show a see-through bra. The defendants also asserted that the plaintiff failed to plead damages arising from the alleged breach of contract. The plaintiff objected to relying on this image, but the objection was not resolved. The original image reportedly shows a see-through bra and a visible areola, which would be the best evidence to rely on, not the degraded PDF copy that obscures crucial details. Whether the bra is see-through or opaque remains a factual question not suitable for decision on a motion to dismiss.
It should be noted that while factual disputes are generally left to the jury (or a judge in a bench trial), questions of fact related to preliminary motions—such as motions to seal or to proceed under a pseudonym—are appropriate for determination by the judge at the time of the motion.
Defendants are represented by Alan Behr (Phillips Nizer LLP) and Diana Breaux (Summit Law).
