7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
NATHAN CAMPOS and JANET Case No. C22-1806-RSM 10 GARVEY, ORDER DENYING PLAINTIFFS’ 11 Plaintiffs, MOTION FOR TEMPORARY RESTRAINING ORDER AND 12 v. APPOINTMENT OF INTERIM CLASS COUNSEL 13 BIG FISH GAMES, INC., a Washington corporation; et al., 14
Defendants. 15
17 I. INTRODUCTION 18 This matter comes before the Court on Plaintiffs Nathan Campos and Janet Garvey 19 (collectively, “Plaintiffs”)’ Motion for Temporary Restraining Order (“TRO”) and Appointment 20 of Interim Class Counsel against Defendants Big Fish Games, Inc. (“BFG”) and Product 21 Madness, Inc. (“PM”) (collectively, “Defendants”). Dkt. #119. Defendants have requested oral 22 argument. The Court has determined it can rule on the Motion without the need for oral 23 argument. For the following reasons, the Court DENIES Plaintiffs’ Motion. 24 1 II. BACKGROUND The facts of this case are well-known. See Dkt. #112. Plaintiffs’ TRO Motion seeks 2 emergency relief related to Defendants’ updated pop-up window displayed in the gaming 3 application. Dkt. #119. This pop-up identifies Defendants’ new Terms of Service (“TOS”), 4 which were updated on December 1, 2023, and again on June 5, 2024. Id. at 1. The updated 5 TOS added Defendant PM to the Terms of Service, after Plaintiffs amended their complaint to 6 add PM as a defendant to this lawsuit. Id. Defendants attempted to enforce the updated 7 December 1, 2023, arbitration agreement against Plaintiff Garvey, which this Court ultimately 8 denied on June 3, 2024, due to Plaintiff Garvey’s history of opting-out of the arbitration 9 provision. See gen. Dkt. #112. Defendants then updated their TOS again on June 5, 2024. Dkt. 10 #112 at 1. Defendants’ updated TOS continued to include the arbitration agreement and opt-out 11 instructions, as well as “language that the arbitration provisions apply to all past claims and 12 language that purports to negate the effect of prior opt-out notices.” Id. at 1-2. The TOS do not 13 include any information regarding this lawsuit. Id. at 2. 14 After the update on June 5, 2024, Plaintiffs’ counsel communicated to Defendants’ 15 counsel that the updated TOS “were improper class communications” and attempted to get 16 Defendants’ agreement that the updated TOS did not apply to putative class members. Id. at 5. 17 Defendants apparently refused, agreeing to only not enforce the updated TOS against the named 18 Plaintiffs and others represented by counsel. Id. Plaintiffs then filed this TRO Motion, noted as 19 a 28-day motion, requesting that the Court assert control over communications by Defendants 20 with putative class members pursuant to Fed. R. Civ. P. 23. Id. at 2. Specifically, Plaintiffs 21 request this Court require Defendants to: (1) restore the dispute resolution provisions of the TOS 22 prior to the December 1, 2023, update; (2) require any new TOS updates include notice of this 23 24 1 lawsuit and the effect the updates may have on class members’ rights; and (3) appoint Plaintiffs’ counsel, The Ryan Law Group, as interim class counsel. Id .at 15. 2 III. DISCUSSION 3 A. Legal Standard 4 a. TRO 5 The standard for issuing a TRO is the same as the standard for issuing a preliminary 6 injunction. See New Motor Vehicle Bd. of Cal. V. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 7 (1977). A TRO is “an extraordinary remedy that may only be awarded upon a clear showing that 8 the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 9 (2008). “The proper legal standard for preliminary injunctive relief requires a party to 10 demonstrate (1) ‘that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable 11 harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) 12 that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th 13 Cir. 2009) (citing Winter, 555 U.S. at 20). 14 As an alternative to this test, a preliminary injunction is appropriate if “serious questions 15 going to the merits were raised and the balance of the hardships tips sharply” in the moving 16 party’s favor, thereby allowing preservation of the status quo when complex legal questions 17 require further inspection or deliberation. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 18 1134-35 (9th Cir. 2011). However, the “serious questions” approach supports a court’s entry of 19 a TRO only so long as the moving party also shows that there is a likelihood of irreparable harm 20 and that the injunction is in the public interest. Id. at 1135. The moving party bears the burden 21 of persuasion and must make a clear showing that he is entitled to such relief. Winter, 555 U.S. 22 at 22. 23 // 24 1 b. Rule 23(d) Under Fed. R. Civ. P. 23(d), courts are afforded “considerable discretion” to regulate 2 defendant communications with class members in order to prevent abuse. Kater v. Churchill 3 Downs Inc., 423 F. Supp. 3d 1055, 1061 (W.D. Wash. 2019) (quoting Jimenez v. Menzies 4 Aviation Inc., 2015 WL 4914727, at *5 (N.D. Cal. Aug. 17, 2015)). “Because class actions 5 ‘present opportunities for abuse, [] a district court has both a duty and the broad authority to 6 exercise control over a class action and to enter appropriate orders governing the conduct of 7 counsel and the parties.’” Id. (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 8 (1989)) (internal quotations omitted). However, any order regulating communications between 9 parties and putative class members must “be based on a clear record and specific findings that 10 reflect a weighing of the need for a limitation and the potential interference with the rights of the 11 parties.” Id. (internal quotations omitted). 12 When considering whether a defendant’s effort to obtain an arbitration provision from 13 putative class members interferes with their rights under Rule 23(d), courts analyze the timing of 14 the communication, its potential to mislead putative class members, and the risk that putative 15 class members may forfeit their rights “without really knowing what they are.” Id.; see also 16 Jimenez, 2015 WL 4914727, at *6 (finding new arbitration policy invalid as applied to putative 17 class members who were not informed of the pending lawsuit). In contrast, the communication 18 with putative class members is deemed proper if it “does so in a manner that discloses information 19 about this suit and affords an opt-out.” McKee v. Audible, Inc., 2018 WL 2422585, at *8-9 (C.D. 20 Cal. Apr. 6, 2018). 21 c. Interim Class Counsel 22 A district court “may designate interim counsel on behalf of a putative class before 23 determining whether to certify the action as a class actions.” Fed. R. Civ. P. 23(g)(3). “The 24 1 commentary to this rule further notes that a court is authorized to designate interim counsel ‘if necessary to protect the interests of the putative class.’” Pecznick v. Amazon.com, Inc., 2022 WL 2 448123, at *4 (W.D. Wash. Sept. 27, 2022) (emphasis added) (quoting Fed. R. Civ. P.
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7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
NATHAN CAMPOS and JANET Case No. C22-1806-RSM 10 GARVEY, ORDER DENYING PLAINTIFFS’ 11 Plaintiffs, MOTION FOR TEMPORARY RESTRAINING ORDER AND 12 v. APPOINTMENT OF INTERIM CLASS COUNSEL 13 BIG FISH GAMES, INC., a Washington corporation; et al., 14
Defendants. 15
17 I. INTRODUCTION 18 This matter comes before the Court on Plaintiffs Nathan Campos and Janet Garvey 19 (collectively, “Plaintiffs”)’ Motion for Temporary Restraining Order (“TRO”) and Appointment 20 of Interim Class Counsel against Defendants Big Fish Games, Inc. (“BFG”) and Product 21 Madness, Inc. (“PM”) (collectively, “Defendants”). Dkt. #119. Defendants have requested oral 22 argument. The Court has determined it can rule on the Motion without the need for oral 23 argument. For the following reasons, the Court DENIES Plaintiffs’ Motion. 24 1 II. BACKGROUND The facts of this case are well-known. See Dkt. #112. Plaintiffs’ TRO Motion seeks 2 emergency relief related to Defendants’ updated pop-up window displayed in the gaming 3 application. Dkt. #119. This pop-up identifies Defendants’ new Terms of Service (“TOS”), 4 which were updated on December 1, 2023, and again on June 5, 2024. Id. at 1. The updated 5 TOS added Defendant PM to the Terms of Service, after Plaintiffs amended their complaint to 6 add PM as a defendant to this lawsuit. Id. Defendants attempted to enforce the updated 7 December 1, 2023, arbitration agreement against Plaintiff Garvey, which this Court ultimately 8 denied on June 3, 2024, due to Plaintiff Garvey’s history of opting-out of the arbitration 9 provision. See gen. Dkt. #112. Defendants then updated their TOS again on June 5, 2024. Dkt. 10 #112 at 1. Defendants’ updated TOS continued to include the arbitration agreement and opt-out 11 instructions, as well as “language that the arbitration provisions apply to all past claims and 12 language that purports to negate the effect of prior opt-out notices.” Id. at 1-2. The TOS do not 13 include any information regarding this lawsuit. Id. at 2. 14 After the update on June 5, 2024, Plaintiffs’ counsel communicated to Defendants’ 15 counsel that the updated TOS “were improper class communications” and attempted to get 16 Defendants’ agreement that the updated TOS did not apply to putative class members. Id. at 5. 17 Defendants apparently refused, agreeing to only not enforce the updated TOS against the named 18 Plaintiffs and others represented by counsel. Id. Plaintiffs then filed this TRO Motion, noted as 19 a 28-day motion, requesting that the Court assert control over communications by Defendants 20 with putative class members pursuant to Fed. R. Civ. P. 23. Id. at 2. Specifically, Plaintiffs 21 request this Court require Defendants to: (1) restore the dispute resolution provisions of the TOS 22 prior to the December 1, 2023, update; (2) require any new TOS updates include notice of this 23 24 1 lawsuit and the effect the updates may have on class members’ rights; and (3) appoint Plaintiffs’ counsel, The Ryan Law Group, as interim class counsel. Id .at 15. 2 III. DISCUSSION 3 A. Legal Standard 4 a. TRO 5 The standard for issuing a TRO is the same as the standard for issuing a preliminary 6 injunction. See New Motor Vehicle Bd. of Cal. V. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 7 (1977). A TRO is “an extraordinary remedy that may only be awarded upon a clear showing that 8 the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 9 (2008). “The proper legal standard for preliminary injunctive relief requires a party to 10 demonstrate (1) ‘that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable 11 harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) 12 that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th 13 Cir. 2009) (citing Winter, 555 U.S. at 20). 14 As an alternative to this test, a preliminary injunction is appropriate if “serious questions 15 going to the merits were raised and the balance of the hardships tips sharply” in the moving 16 party’s favor, thereby allowing preservation of the status quo when complex legal questions 17 require further inspection or deliberation. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 18 1134-35 (9th Cir. 2011). However, the “serious questions” approach supports a court’s entry of 19 a TRO only so long as the moving party also shows that there is a likelihood of irreparable harm 20 and that the injunction is in the public interest. Id. at 1135. The moving party bears the burden 21 of persuasion and must make a clear showing that he is entitled to such relief. Winter, 555 U.S. 22 at 22. 23 // 24 1 b. Rule 23(d) Under Fed. R. Civ. P. 23(d), courts are afforded “considerable discretion” to regulate 2 defendant communications with class members in order to prevent abuse. Kater v. Churchill 3 Downs Inc., 423 F. Supp. 3d 1055, 1061 (W.D. Wash. 2019) (quoting Jimenez v. Menzies 4 Aviation Inc., 2015 WL 4914727, at *5 (N.D. Cal. Aug. 17, 2015)). “Because class actions 5 ‘present opportunities for abuse, [] a district court has both a duty and the broad authority to 6 exercise control over a class action and to enter appropriate orders governing the conduct of 7 counsel and the parties.’” Id. (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 8 (1989)) (internal quotations omitted). However, any order regulating communications between 9 parties and putative class members must “be based on a clear record and specific findings that 10 reflect a weighing of the need for a limitation and the potential interference with the rights of the 11 parties.” Id. (internal quotations omitted). 12 When considering whether a defendant’s effort to obtain an arbitration provision from 13 putative class members interferes with their rights under Rule 23(d), courts analyze the timing of 14 the communication, its potential to mislead putative class members, and the risk that putative 15 class members may forfeit their rights “without really knowing what they are.” Id.; see also 16 Jimenez, 2015 WL 4914727, at *6 (finding new arbitration policy invalid as applied to putative 17 class members who were not informed of the pending lawsuit). In contrast, the communication 18 with putative class members is deemed proper if it “does so in a manner that discloses information 19 about this suit and affords an opt-out.” McKee v. Audible, Inc., 2018 WL 2422585, at *8-9 (C.D. 20 Cal. Apr. 6, 2018). 21 c. Interim Class Counsel 22 A district court “may designate interim counsel on behalf of a putative class before 23 determining whether to certify the action as a class actions.” Fed. R. Civ. P. 23(g)(3). “The 24 1 commentary to this rule further notes that a court is authorized to designate interim counsel ‘if necessary to protect the interests of the putative class.’” Pecznick v. Amazon.com, Inc., 2022 WL 2 448123, at *4 (W.D. Wash. Sept. 27, 2022) (emphasis added) (quoting Fed. R. Civ. P. 23 advisory 3 committee’s note to 2003 amendment). Appointing interim class counsel is “particularly suited 4 to situations” where multiple lawyers are competing for class counsel appointment. Id. (citing 5 Manual for Complex Litig. (Fourth) § 21.11 (2021)). 6 B. Analysis 7 The Court is primarily concerned with the showing of irreparable harm. Irreparable harm 8 is the primary reason for filing a TRO motion as opposed to obtaining relief in the normal course 9 of litigation. Plaintiffs devote most of their time to describing how Defendants’ updated TOS 10 are “draconian” and misleading because Defendants attempt to force putative class members to 11 opt-out of this litigation through an arbitration agreement after litigation began. See gen. Dkt. 12 #116. However, as Defendants point out, Defendants’ arbitration agreement and opt-out 13 procedure have been included in the various games’ TOS for several iterations. See Dkt. #127 14 at 17 (“Plaintiffs have been aware of these pop-ups for nearly two years”). Plaintiff Garvey’s 15 numerous opt-outs of Defendants’ arbitration provision demonstrate this. See Dkt. #112 16 (denying Defendants’ Motion to Compel Arbitration due to Plaintiff’s demonstrated history of 17 opting-out of such provision). Unlike the cases Plaintiffs point to, Defendants’ terms in the TOS 18 were not added only after this lawsuit began, nor expressly aimed at this lawsuit, and Defendants’ 19 TOS includes an opt-out, which Plaintiffs have used. See Kater, 423 F. Supp. 3d (granting TRO 20 where terms were updated to expressly exclude rights to pending lawsuit); Jimenez, 2015 WL 21 4914727 (denying arbitration where arbitration term was created and required after class action 22 litigation began); Balasanyan, 2012 WL 760566 (arbitration denied where employer attempted 23 24 1 to change the arbitration term after litigation onset with required documentation and without an opt-out). 2 Moreover, any harm caused by the updated December 2023 TOS or June 2024 TOS to 3 putative class members has, if at all, already occurred. Plaintiffs assert that “even if the Court 4 orders corrective notice, that will not completely undo the fact that putative class members have 5 already received dangerously wrong information. That is irreparable harm.” Dkt. #116 at 12. 6 But Plaintiffs fail to assert how what potentially happened from these past updates establishes 7 that now, months after these terms were updated, there is an immediate risk of irreparable harm 8 unless the Court steps in beyond the normal process of litigation. If class certification prevails, 9 the Court will be fully able to notify class members of this case and their potential rights, 10 including whether and which TOS applies. Later process in this litigation provides ample time 11 and opportunity to resolve these questions without risk of immediate, irreparable harm requiring 12 a TRO. 13 Accordingly, the Court finds that Plaintiffs have failed to show irreparable harm, and the 14 Court need not examine the other factors above to find that this Motion can be denied. 15 Furthermore, because the Court finds no risk of irreparable harm pending class certification and 16 the case does not involve multiple attorneys vying for the position, the Court finds it unnecessary 17 to appoint interim class counsel. 18 IV. CONCLUSION 19 Having considered the briefing and the remainder of the record, the Court hereby finds 20 and ORDERS that Plaintiff’s Motion for Temporary Restraining Order and Appointment of 21 Interim Class Counsel, Dkt. #119, is DENIED. 22 // 23 // 24 1 DATED this 23rd day of August, 2024. 2 3 A 4 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 5
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