Carlsen v. GameStop, Inc.

112 F. Supp. 3d 855, 2015 U.S. Dist. LEXIS 72297, 2015 WL 3538906
CourtDistrict Court, D. Minnesota
DecidedJune 4, 2015
DocketCivil No. 14-3131 (DWF/SER)
StatusPublished
Cited by5 cases

This text of 112 F. Supp. 3d 855 (Carlsen v. GameStop, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlsen v. GameStop, Inc., 112 F. Supp. 3d 855, 2015 U.S. Dist. LEXIS 72297, 2015 WL 3538906 (mnd 2015).

Opinion

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

This matter is before the Court , on Defendants GameStop, Inc. (“GameStop”) [858]*858and 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 programming 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 en- . hanced content and message boards, .among other items, for registered users , (such enhanced content and message boards, among other items, are referred [859]*859to 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 registrdtion 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 “cookr ies” 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 breáched a paid-for contract term by disclosing Plaintiffs Facebook ID and. information about content Plaintiff accessed on Game Informer’s website. (Am. Compl. ¶¶ 76, 79.) Plaintiff also alleges this disclosure constituted a material misrepresentation regarding Game Informer subscriptiohs. (Id. ¶ 104.) Plaintiff alleges that he believed his PU' would not be discloséd 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, had he known about the disclosures in question, he would either have not paid for the subscription or not accessed the online content for which he had paid. (Id. ¶ 58.)

Plaintiff seeks damages and injunctive relief for the alleged violation of the Privacy Policy by the disclosure of users’ content access of the Game Informer website, along with their Facebook IDs, to Facebook. (Id. ¶¶ 81, 87, 93, 107.) In his Amended Complaint, Plaintiff - seeks class certification and asserts the following claims: (1) breach of contract; (2) unjust enrichment; (3) money had and received; and (4) violation of Minnesota’s Prevention of Consumer Fraud Act, Minm.Stat. §§ 325F.68 et seq. (Id. ¶¶ 67-107.) Defendant now moves to dismiss Plaintiff’s claims in their entirety. (Doc. No. 32.)

DISCUSSION

I. Legal Standard — Rule 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges [860]

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Bluebook (online)
112 F. Supp. 3d 855, 2015 U.S. Dist. LEXIS 72297, 2015 WL 3538906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlsen-v-gamestop-inc-mnd-2015.