Swift v. Zynga
Encyclopedia
Swift v. Zynga is an ongoing class action lawsuit filed in 2009, based on allegedly deceptive ads that ran in Zynga
games on Facebook
. A motion by Zynga to dismiss the case was denied by the United States District Court for the Northern District of California in November 2010.
is a developer of popular online games such as FarmVille
, Mafia Wars
, YoVille! and ZyngaPoker. These games allow players to spend virtual currency
to take in-game actions and purchase virtual goods. Currency is metered out through the game itself, and additional currency can be purchased directly, or earned by completing special offers with Zynga and its business partners.
The plaintiff, Rebecca Swift, alleges that she played Zynga games and participated in multiple special offers run by Zynga's partner Adknowledge. In April 2009 she allegedly provided her cell phone number as requested by one of these offers, in order to be texted a code redeemable for YoCash, in-game currency in Zynga's YoVille! game. She subsequently received four charges of $9.99 billed to her cell phone from April 16, 2009 onward, without her knowledge or consent.
Additionally, on June 14, 2009 Rebecca signed up for a second special offer, a "risk-free Grean Tea Purity Trial." The offer promised YoCash in exchange for participation in the risk-free trial, and stipulated that the trial could be cancelled anytime within 15 days of sign-up. Rebecca provided her debit card number and was charged an initial $5.95 for shipping and handling. Ten days later she sent an email asking to cancel the subscription, after receiving a shipment of green tea pills and tea bags. On July 4th Rebecca received an email indicating she would be charged an additional $79.95, despite her request to cancel. She was unable to contact the sender by telephone, and on July 6th was billed for the $79.95 plus a foreign transaction fee. On July 20th, she was billed again, resulting in total charges of $176.56.
(CDA). Swift withdrew her action against Facebook in January 2010, though court records showed that the case was dismissed without prejudice and could in theory be re-filed.. A First Amended Complaint was filed by Swift on February 10th, 2010, which claimed violation of the Unfair Competition Law, violation of the Consumers Legal Remedies Act, and unjust enrichment.
Both Zynga and AdKnowledge separately moved to dismiss the case on the grounds that Swift’s claims are barred by the CDA, but the motion was denied by the United States District Court for the Northern District of California
in a November 3rd, 2010 ruling.
AdKnowledge separately claimed that Swift failed to sufficiently identify AdKnowledge's role in the alleged fraud. AdKnowledge also argued that Swift's unjust enrichment claim should be dismissed. Finally, AdKnowledge moved to strike Swift's class allegations. AdKnowledge's claim and both motions were denied.
(521 F.3d at 1161-1162). Through the lens of that ruling, the court determined that Swift's allegations could, if proven, support the conclusion that Zynga was responsible for creating or developing the content at issue. Specifically, Swift asserts that the virtual currency offered in the ads is the most important "content" found within them, and that Zynga further contributed to their development by specifying the design, layout, and format of the offers.
When evaluating AdKnowledge's immunity claim, the court found that it was unable to determine whether it is entitled to CDA immunity, an evaluation which it judged to be a fact-based inquiry.
Several law blogs have remarked on the failure to dismiss for CDA immunity as a potentially far-reaching shift in the law, claiming that it marks a departure from standard case law and could require websites to take extra steps to ensure their immunity.
Zynga
Zynga is a social network game developer located in San Francisco, United States. The company develops browser-based games that work both stand-alone and as application widgets on social networking websites such as Facebook and MySpace....
games on Facebook
Facebook
Facebook is a social networking service and website launched in February 2004, operated and privately owned by Facebook, Inc. , Facebook has more than 800 million active users. Users must register before using the site, after which they may create a personal profile, add other users as...
. A motion by Zynga to dismiss the case was denied by the United States District Court for the Northern District of California in November 2010.
Factual background
ZyngaZynga
Zynga is a social network game developer located in San Francisco, United States. The company develops browser-based games that work both stand-alone and as application widgets on social networking websites such as Facebook and MySpace....
is a developer of popular online games such as FarmVille
FarmVille
FarmVille is a farming simulation social network game developed by Zynga in 2009. It is similar to Happy Farm, Farm Town,, and older games such as the Harvest Moon series...
, Mafia Wars
Mafia Wars
Mafia Wars is a multiplayer Social network game created by Zynga.In Mafia Wars the gamers play as gangsters building their own mafia. The players fight other players online and complete tasks to gain rewards and strength in the game. The game is a freemium game, meaning it is free to play normally...
, YoVille! and ZyngaPoker. These games allow players to spend virtual currency
Virtual currency
Virtual currency is used to purchase virtual goods within a variety of online communities; which include social networking websites, virtual worlds and online gaming sites....
to take in-game actions and purchase virtual goods. Currency is metered out through the game itself, and additional currency can be purchased directly, or earned by completing special offers with Zynga and its business partners.
The plaintiff, Rebecca Swift, alleges that she played Zynga games and participated in multiple special offers run by Zynga's partner Adknowledge. In April 2009 she allegedly provided her cell phone number as requested by one of these offers, in order to be texted a code redeemable for YoCash, in-game currency in Zynga's YoVille! game. She subsequently received four charges of $9.99 billed to her cell phone from April 16, 2009 onward, without her knowledge or consent.
Additionally, on June 14, 2009 Rebecca signed up for a second special offer, a "risk-free Grean Tea Purity Trial." The offer promised YoCash in exchange for participation in the risk-free trial, and stipulated that the trial could be cancelled anytime within 15 days of sign-up. Rebecca provided her debit card number and was charged an initial $5.95 for shipping and handling. Ten days later she sent an email asking to cancel the subscription, after receiving a shipment of green tea pills and tea bags. On July 4th Rebecca received an email indicating she would be charged an additional $79.95, despite her request to cancel. She was unable to contact the sender by telephone, and on July 6th was billed for the $79.95 plus a foreign transaction fee. On July 20th, she was billed again, resulting in total charges of $176.56.
Procedural background
Rebecca Swift filed a putative class action on November 19, 2009, claiming Facebook, Zynga, and AdKnowledge profited from "highly misleading" ads. Outside experts initially voiced the opinion that both Facebook and Zynga would be immune to legal action under provisions of the Communications Decency ActCommunications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
(CDA). Swift withdrew her action against Facebook in January 2010, though court records showed that the case was dismissed without prejudice and could in theory be re-filed.. A First Amended Complaint was filed by Swift on February 10th, 2010, which claimed violation of the Unfair Competition Law, violation of the Consumers Legal Remedies Act, and unjust enrichment.
Both Zynga and AdKnowledge separately moved to dismiss the case on the grounds that Swift’s claims are barred by the CDA, but the motion was denied by the United States District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
in a November 3rd, 2010 ruling.
AdKnowledge separately claimed that Swift failed to sufficiently identify AdKnowledge's role in the alleged fraud. AdKnowledge also argued that Swift's unjust enrichment claim should be dismissed. Finally, AdKnowledge moved to strike Swift's class allegations. AdKnowledge's claim and both motions were denied.
Court's reading of CDA immunity and reaction
In evaluating Zynga's motion to dismiss, the court looked to the Roommates.com rulingFair Housing Council of San Fernando Valley v. Roommates.com, LLC
Fair Housing Council of San Fernando Valley v. Roommates.com, LLC is a case in which the United States Court of Appeals for the Ninth Circuit, sitting en banc, held that immunity under Section 230 of the Communications Decency Act did not apply to an interactive online operator whose questionnaire...
(521 F.3d at 1161-1162). Through the lens of that ruling, the court determined that Swift's allegations could, if proven, support the conclusion that Zynga was responsible for creating or developing the content at issue. Specifically, Swift asserts that the virtual currency offered in the ads is the most important "content" found within them, and that Zynga further contributed to their development by specifying the design, layout, and format of the offers.
When evaluating AdKnowledge's immunity claim, the court found that it was unable to determine whether it is entitled to CDA immunity, an evaluation which it judged to be a fact-based inquiry.
Several law blogs have remarked on the failure to dismiss for CDA immunity as a potentially far-reaching shift in the law, claiming that it marks a departure from standard case law and could require websites to take extra steps to ensure their immunity.