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Carlsen v. Gamestop, Inc.

United States District Court, D. Minnesota

June 4, 2015

Matthew Carlsen, individually and on behalf of other similarly situated, Plaintiff,
v.
GameStop, Inc., a Minnesota corporation; and Sunrise Publications, Inc. d/b/a Game Informer, a Minnesota corporation, Defendants.

Alicia E. Hwang, Esq., Ari J. Scharg, Esq., Benjamin S. Thomassen, Esq., and Rafey S. Balabanian, Esq., Edelson PC; and Robert K. Shelquist, Esq., Lockridge Grindal Nauen PLLP, counsel for Plaintiffs.

Casie D. Collignon, Esq., Paul G. Karlsgodt, Esq., and Theodore J. Kobus, III, Esq., Baker & Hostetler LLP; Mathew M. Wrenshall, Esq., Reed Smith LLP; and Teresa J. Kimker, Esq., Nilan Johnson Lewis PA, counsel for Defendants.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

This matter is before the Court on Defendants GameStop, Inc. ("GameStop") and Sunrise Publications, Inc. d/b/a Game Informer's ("Game Informer") (collectively, "Defendants") motion to dismiss. (Doc. No. 32.) For the reasons set forth below, the Court grants Defendants' motion.

BACKGROUND

Plaintiff Matthew Carlsen ("Carlsen" or "Plaintiff"), individually and on behalf of others similarly situated (collectively, "Plaintiffs"), are users of print and online materials published by Game Informer ("Game Informer Magazine") and other content. (Doc. No. 31, Am. Compl. ¶¶ 1, 8, 23.) Game Informer Magazine offers news, reviews, and commentary about the video game industry. (Id. ¶ 1.) Registered subscribers can access digital versions of the Game Informer Magazine through the website www.gameinformer.com and they can also manage their subscriptions and access enhanced content and message boards. (Id. ¶¶ 1, 17.) A one-year subscription costs between $14.99 and $19.98. (Id. ¶¶ 15-16, 50.) Plaintiff paid for a one-year digital subscription to receive access to the Game Informer Magazine and other enhanced content; he paid $14.99 in January 2014. (Id. ¶¶ 2, 50.)

The Terms of Service for the online subscription include Game Informer's Privacy Policy (the "Privacy Policy"). (Id. ¶ 3.) The Privacy Policy includes a provision that, with certain exceptions, "Game Informer does not share personal information with anyone." (Id. ¶¶ 4, 27; Doc. No. 39 ("Privacy Policy") § 5.)[1]

Plaintiff alleges that Defendants shared personally identifiable information ("PII") with Facebook, a third party, in violation of the Privacy Policy. (Am. Compl. ¶¶ 29, 43.) Plaintiff alleges that Defendants did so through Game Informer's website, which includes features that allow users to log in to Game Informer's website using their Facebook accounts or use Facebook's "Like, " "Share, " or "Comment" functions through the site. (Id. ¶ 32.) In order to provide these features, Game Informer adds a Facebook Software Development Kit ("SKD") to the source code on their website. (Id. ¶ 34.) Plaintiff alleges that the programing of this SKD on Game Informer's website results in the transmission of a user's unique Facebook ID to Facebook, along with information about Game Informer content viewed by the user. (Id. ¶¶ 39-43.) The information is only transmitted if the user has previously opted to remain "logged in" to Facebook, which places a "cookie" on the user's computer. (Id. ¶¶ 37-38.)

Game Informer website's "Privacy Policy applies to all Website(s) and Mobile Application(s) operated by Game Informer (collectively, with Game Informer Online, referred to as the Site')." (Privacy Policy § 1.1.) The Privacy Policy states:

[The] Privacy Policy applies only to information submitted and collected online through the Site.... In addition, [the] Privacy Policy does not extend to Websites that may be maintained by our international affiliates or other companies or organizations to which we link, or to websites that contain links to the Site and/or the Service.

(Id. § 1.2.) The Privacy Policy further states:

The Site provides video game related content for all visitors as well as enhanced content and message boards, among other items, for registered users (such enhanced content and message boards, among other items, are referred to as the "Service"). All visitors and registered users are referred to in this Policy as "Users." This Policy (i) covers Game Informer's treatment of personally identifiable information collected when you are on the Site and when you use the Service, and (ii) discloses Game Informer's information gathering and dissemination practices for the Site and Service.

(Id. § 1.4.) Under the Privacy Policy, users of Game Informer's website agree to the Privacy Policy's terms when they use the site. (Id. § 1.3 ("Please note that by using the Site, you signify your assent to this Privacy Policy. If you do not agree to this Privacy Policy, please do not use the Site.").) Game Informer also incorporates this Privacy Policy into its subscription Terms of Service. (Id. ¶ 3.) Plaintiff alleges that the purchase of a Game Informer subscription requires registration through Game Informer's website and agreement to the Terms of Service to gain access to its subscription-only online content. (Am. Compl. ¶¶ 17, 26, 53, 54, 68, 70.)

According to Plaintiffs, the Privacy Policy also describes the types of information collected about its users and how and with whom this information gets shared. ( See generally Privacy Policy.) Game Informer collects both so-called "personal" and "aggregate information" through voluntary submission, as well as use of the website. (Id. ) The Privacy Policy states: "Except as stated above or disclosed in this Policy, or otherwise as may be authorized or permitted by a User, Game Informer does not share personal information with anyone." (Id. § 5.) "[P]ersonal information may include: your name, home address and zip code, telephone number, email address and (for those purchasing products online) credit card or checking account information including billing and shipping addresses and zip codes." (Id. § 2.1.) The Privacy Policy excludes operational uses, promotions sponsored by third parties, government requirements, and use of "cookies" and "Web beacons" by third-party advertisers that may collect "non-personally identifiable information." (Id. §§ 2.4, 3.2, 3.3, 4.5, 8.)

Plaintiff alleges Defendants breached a paid-for contract term by disclosing Plaintiff's Facebook ID and information about content Plaintiff accessed on Game Informer's website. (Am. Compl. ¶¶ 76, 79.) Plaintiff also alleges this disclosure constitutes a material misrepresentation regarding Game Informer subscriptions. (Id. ¶ 104.) Plaintiff alleges that he believed his PII would not be disclosed and that this belief was "confirmed" by the Privacy Policy. (Id. ¶ 56.) Plaintiff alleges "a portion of the money [members] pay for their membership goes toward the protection of their sensitive information." (Id. ¶ 20.) Plaintiff further alleges that, ...


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