Since the introduction of I-Phones, Americans have enjoyed – some would say become addicted- to the ubiquitous game applications such as Bejeweled and Angry Birds. Such games have become extremely profitable for developers for both in game fees and advertising. Not surprising, game users have found that the businesses hosting such games have found ways to boost profits by deceptive advertising and practices.

Recently, in the case of Liston v., in the US District Court, ND Ill., Case No. 15 CV 01853, an game user sued the developer of the popular Candy Crush game in a class action for the value of “lost lives” that the consumer claimed had been improperly removed from the consumer’s account by the developer. In the words of the federal judge, the claims of the unhappy gamer are summarized as:

Candy Crush, played on mobile devices including iPhones, iPads, and Androids, is essentially a match-making puzzle game in which players aim to line up three or more of the same icon in various configurations so as to clear them from the board and earn points. First Am. Compl. ¶¶ 30-34, ECF No. 15. Players advance to subsequent levels of the game as they clear the requisite number of icons from the board, and have only a limited number of turns, or moves, they may take to try to clear those icons. Id. ¶ 34. If a player fails to remove the requisite icons within a certain number of moves, they lose one of their in-game “lives”—chances to line up the requisite number of icons—and have to repeat that level. Id. ¶ 35.

Candy Crush players start the game with five lives, and also gain an additional free life every thirty minutes, up to a limit of five (the “Free Life Option”). Id. ¶¶ 37-38. Players using this method for obtaining additional lives have to wait thirty minutes to resume the game once they have lost all of their lives. Id. ¶ 38. Because the game is “addictive,” as described by news outlets, players often do not want to wait thirty minutes for additional lives, and instead can rely on the two other avenues that King has provided for obtaining more lives. Id. ¶¶ 39-40. The first method is for players to buy additional lives while they are in the game through so-called In-App purchases (the “Purchase Option”). Id. ¶ 42. A player can buy five additional lives for $.99. Id. ¶ 3. The second method is for players to link their Candy Crush accounts to their Facebook accounts, which then enables them to request and receive more lives (which the plaintiff refers to as “Donated Lives”) from their friends on Facebook who also have Candy Crush installed on their mobile devices (the “Facebook Option”). Id. ¶¶ 43-46. If a player’s Facebook friends have not yet installed Candy Crush, they are prompted to do so, meaning that the Facebook Option allows King to receive a benefit from players marketing Candy Crush to their friends, according to Liston. Id. ¶ 45. This option thus enables King to pass on marketing costs to consumers. Id. Under either the Purchase Option or the Facebook Option, “lives have an economic and ascertainable value equal to approximately $0.20.” Id. ¶ 47.

Candy Crush has enjoyed enormous popularity among mobile gamers, bringing in an average of 93 million daily active users in December 2013 and grossing an estimated $1.9 billion in revenue that year. Id. ¶¶ 3, 28. Overall, the game has counted roughly 250 million people as players. Id. ¶ 9. Plaintiff Zachery Liston began playing Candy Crush on his iPhone in early 2012, and connected his Candy Crush account to his Facebook account around that same time. Id. at ¶¶ 49-50. When he ran out of lives, Liston used the Facebook Option, “periodically asking his Facebook friends for Donated Lives.” Id. ¶ 51. Some of those Facebook friends installed Candy Crush because of that request, and Liston received his Donated Lives and exited the game. Id. ¶¶ 52-53. When he returned to the game, however, he discovered that the Donated Lives had disappeared; other Candy Crush players reported the same problem on various online message boards.[1] Id. ¶¶ 54, 56-57. King had allegedly designed or changed Candy Crush in order to remove the Donated Lives, and did not inform players beforehand. Id. ¶ 58.

The game developer responded to the class action lawsuit with a motion to dismiss arguing that the consumer did not have standing top bring a claim as the “lost lives” were free and the consumer never paid anything to play. The US District Court for the ND Illinois rejected the argument of the developer finding among other things that the plaintiff gamer had alleged an injury in fact as the “lost lives” had been assigned a value by the developer itself.

The “Candy Crush” lawsuit demonstrates how technology is changing both the lives of Americans (pun intended) and the law. Indeed, the term “e-commerce” itself only entered everyday vocabulary in the last 20 years. And with every new on-line business there is a significant opportunity for businesses to abuse and cheat consumers.

The Law Office of Robert W. Murphy is actively pursuing claims against businesses that engage in deceptive and unfair e-commerce. The Office has handled claims ranging from violations of the Electronic Funds Transfer Act (“EFTA”) to the Telephone Consumer Protection Act (“TCPA”) and most all other federal and state consumer protection statutes.