Wilson v. Playtika, Ltd

• Court: District Court, W.D. Washington
• Decided: May 15, 2020
• Docket: 3:18-cv-05277
• Status: Unknown

Opinion

1 HONORABLE RONALD B. LEIGHTON 2 3 4 5

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 SEAN WILSON, individually and on CASE NO. 3:18-cv-05277-RBL 9 behalf of all others similarly situated, ORDER ON DEFENDANT 10 Plaintiff, PLAYTIKA, LTD.’S MOTION TO v. CERTIFY ISSUES TO THE 11 WASHINGTON SUPREME COURT PLAYTIKA LTD an Israeli limited 12 company, PLAYTIKA HOLDING DKT. # 99 CORP., a Delaware corporation, and 13 CAESARS INTERACTIVE ENTERTAINMENT, LLC, a Delaware 14 limited liability company, 15 Defendant. 16

THIS MATTER is before the Court on Defendant Playtika, Ltd.’s Motion to Certify 17 Issues to the Washington Supreme Court. Playtika’s Motion is nearly identical to the Motion 18 brought by High 5, another casino game app-producing company, in Wilson v. PTT, LLC, No. 19 3:18-CV-05275-RBL, 2020 WL 1674151 (W.D. Wash. Apr. 6, 2020). The Court denied that 20 Motion because High 5 had already raised the issues it wanted certified to the Supreme Court in 21 its motion to dismiss. Id. This earlier decision serves as a guide for deciding Playtika’s Motion. 22 Although federal courts may decide state law issues of first impression, they also have 23 discretion to certify such issues to the state’s highest court. Murray v. BEJ Minerals, LLC, 924 24 1 F.3d 1070, 1071 (9th Cir. 2019). Washington law allows certification of question to the 2 Washington Supreme Court when “the local law has not been clearly determined.” RCW 3 § 2.60.020; accord, RAP 16.16(a). But the Ninth Circuit has made clear that the certification 4 process is not to be “lightly” invoked. Murray, 924 F.3d at 1072 (quoting Kremen v. Cohen, 325 5 F.3d 1035, 1037 (9th Cir. 2003)). It requires “careful consideration” of the following factors:

6 “(1) whether the question presents ‘important public policy ramifications’ yet unresolved by the 7 state court; (2) whether the issue is new, substantial, and of broad application; (3) the state 8 court’s caseload; and (4) ‘the spirit of comity and federalism.’” Id. at 1072 (quoting Kremen, 325 9 F.3d at 1037-38). 10 “There is a presumption against certifying a question to a state supreme court after the 11 federal district court has issued a decision.” Thompson v. Paul, 547 F.3d 1055, 1065 (9th Cir. 12 2008). Courts in this circuit and elsewhere have recognized that allowing parties to exploit 13 certification as a de facto reconsideration or appeal would turn the district court’s decision into 14 “nothing but a gamble.” Id. (quoting Perkins v. Clark Equip. Co., Melrose Div., 823 F.2d 207,

15 209–10 (8th Cir.1987)); see also Enfield v. A.B. Chance Co., 228 F.3d 1245, 1255 (10th Cir. 16 2000); Cantwell v. Univ. of Mass., 551 F.2d 879, 880 (1st Cir. 1977). In short, “[a] party should 17 not be allowed a second chance at victory through certification.” Hinojos v. Kohl’s Corp., 718 18 F.3d 1098, 1109 (9th Cir. 2013) (quoting Thompson, 547 F.3d at 1065 (internal quotation 19 omitted)). 20 Like High 5, Playtika seeks to certify the following question to the Supreme Court: “does 21 playing an online video game that is free to play, allows in-app purchases, but awards no prize 22 other than additional playing time constitute illegal gambling under Washington law?” Dkt. # 99 23 at 2. Playtika further breaks the question down into the following sub-parts: “(1) Are virtual 24 1 coins ‘things of value,’ when players can play the game without paying for any coins, additional 2 coins can be obtained without payment, and when the coins cannot be converted to cash, 3 redeemed for prizes, or transferred to other users? (2) Does an in-app purchase of virtual coins 4 constitute a ‘bona fide business transaction,’ a transaction expressly excluded from Washington’s 5 definition of gambling? (3) Is playing an online, casino-themed video game the type of ‘illegal’

6 activity RCW § 4.24.070 was designed to address, when the game offers no prize?” Id. at 2-3. 7 However, also like High 5, Playtika filed a Motion to Dismiss in which it raised nearly 8 these exact same issues before this Court. See Dkt. # 40. Playtika sought to have Wilson’s claims 9 dismissed on the basis that its app-based games do not constitute “illegal gambling” because 10 players do not gamble for a “thing of value,” id. at 16, because the apps fall within the statute’s 11 “bona fide business transaction” exception, id. at 21, and because players do not “win” or “lose” 12 anything, id. at 20-21, 22. For the same reasons as in PTT, 2020 WL 1674151, at *2, Playtika’s 13 arguments that the Washington Supreme Court should decide this issue of Washington law do 14 not overcome the presumption created by the decision to litigate in federal court. The Court

15 DENIES Playtika’s Motion. 16 IT IS SO ORDERED. 17 18 Dated this 15th day of May, 2020. 19 A 20 Ronald B. Leighton 21 United States District Judge

22 23