"Gotta Catch 'Em All!"™ - Pokémon™ Go Gives Rise to New Class Action Suits

By Katie Bechina

The latest smartphone sensation, Pokémon Go, has led to a new series of class action lawsuits concerning private property rights. Pokémon Go, released in July by creator Niantic, is a GPS-based game that allows players to “catch” virtual creatures known as “Pokémon.” Participants explore their towns and neighborhoods looking for over 150 kinds of Pokémon and items at depots called “Pokéstops.” The app even allows competitors to battle other players’ Pokémon at locations called “Gyms.”

Niantic has programmed the app to spawn virtual Pokémon, Pokéstops, and Gyms at countless locations around the world. The app blends reality and virtual reality, using a smartphone’s camera to show the “real world” on the phone screen and to populate virtual creatures, depots, and battle arenas. However, the app fails to distinguish between public and private property, meaning a personal residence could be the home to a popular Gym, a Pokéstop, or a rare Pokémon.

Days after the app debuted, some homeowners began to notice people of all ages lingering on their property, trying to be the first one to “catch ‘em all.” They watched helplessly as players peered through their windows and trekked across their lawns to catch Pokémon, battle other players at Gyms, or collect items from Pokéstops.

In response to these Pokémon “trainers” invading their property, homeowners in North America have filed lawsuits to enforce their property and privacy rights. For example, in July 2016, a New Jersey man filed a proposed class action suit in California federal court against Niantic, The Pokémon Company (the marketer and licensing agent of the Pokémon brand), and Nintendo Company (32% owner of The Pokémon Company). Marder v. Niantic, Inc. et al., Case No. 4:16-cv-04300 (N.D. Cal. July 29, 2016).

This suit alleges a claim for nuisance against Niantic. By placing Pokéstops and Gyms on or near private property without the permission of owners, the complaint argues that the game and Pokémon “trainers” are invading the use and enjoyment of their property. The plaintiff also alleges a claim for unjust enrichment against all three defendants, explaining that the private property of the proposed class has contributed to the game’s prosperity and popularity.

As the game becomes more prevalent and the number of players grows, more disputes have arisen. For instance, a Michigan couple filed a proposed class action suit in California federal court in July, and members of a Florida condo association did the same in late August. Dodich v. Niantic, Inc. et al., Case No. 3:16-cv-04556 (N.D. Cal. Aug. 10, 2016); The Villas of Positano Condominium Ass’n v. Niantic, Inc. et al., Case No. 3:16-cv-05091 (N.D. Cal. Sept. 2, 2016). Another proposed class action case was even filed in Alberta, Canada. Schaeffer v. Niantic, Inc. et al., Case No. 1601-01491 (Court of Queen’s Bench of Alberta Aug. 10, 2016). Each suit contains allegations similar to the New Jersey case; they claim that Niantic has created a nuisance by placing Pokéstops and Gyms on or near private property and that the defendants are wrongfully profiting from the success that using the private property has created.

Each case is still in the early stages of litigation, making outcomes difficult to predict. Still, they show that as technology advances and further permeates society, the law continues to evolve. Companies with similar technology should consult with counsel to evaluate their legal risks.

Katie Bechina is a member of the firm's Business Litigation division. Ms. Bechina is located in the Kansas City office. For more information, please contact Ms. Bechina or your usual Stinson Leonard Street contact.

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