Lawyer Sanctioned for Failing to Play Call of Duty
Since at least 1984’s The Last Starfighter, videogame players have dreamed that the time they spent playing games would be rewarded. Recently, a federal judge supplied the inverse, sanctioning a lawyer for failing to play enough Call of Duty.
On November 30, 2021, Brooks Entertainment, Inc. sued Activision Blizzard Inc. in the United States District Court for the Southern District of California, alleging that it had stolen the identity of Brooks Entertainment’s owner, Shon Brooks, and ripped off Brooks Entertainment’s copyrighted Stock Picker and Save One Bank games. Brooks Entertainment alleged it owned the trademark to “SHON BROOKS,” which Activision had capitalized on by making “Sean Brooks” into the “main character” of the “Call of Duty Games.”1 Brooks Entertainment alleged further that, while Stock Picker and Save One Bank were “aimed at empowering youth,” they shared similarities with Call of Duty: among other things, Shon Brooks and Sean Brooks both had unlimited resources and missiles; they bring thieves to justice; they travelled to Mars; and both games had “scripted game battle scenes take place in a high fashion couture shopping center mall.”2
On January 7, 2022, Activision’s counsel wrote to the plaintiff’s counsel, asserting that the “Complaint contain[ed] serious factual misrepresentations and errors, and that the claims set forth therein are both factually and legally frivolous.” If the plaintiff was “unwilling to dismiss the Complaint,” the letter continued, Activision would serve the plaintiff’s counsel with a motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure.3 Under Rule 11(b), attorneys who present pleadings or motions to a court also certify that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law” and that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” A party that moves for sanctions must serve the motion on opposing counsel and give the opposing counsel at least 21 days to withdraw or correct the challenged paper or claim before the motion can be filed with the court.
On March 2, 2022, Activision served its motion on Brooks’ counsel. On March 24, 2022, Activision filed its Motion for Sanctions Pursuant to Fed. R. Civ. P. 11. In a declaration attached to the motion, Activision’s counsel explained:
After receiving the Complaint . . . , I played the entire single-player campaign of Call of Duty: Infinite Warfare. . . .
Based on my research, . . . it was immediately apparent to me that many (if not virtually all) of the factual allegations in the Complaint were not accurate. It also was immediately apparent that Plaintiff’s counsel could not have played Infinite Warfare (or any Call of Duty game, for that matter) and filed the Complaint in good faith. For example, anyone playing the game for more than a few minutes would realize that “Sean Brooks” is not the “main character” of the game . . . and Sean Brooks the game character does not look anything like Shon Brooks.4
Brooks did not withdraw the complaint and instead opposed the motion for sanctions. Among other things, Brooks contended: “Rule 11 does not impose a specific requirement that would have required plaintiff’s counsel here to personally play the entire six-hour campaign of the Call of Duty game in order to conduct a reasonable pre-filing investigation.”5
On July 12, 2022, the court granted Activision’s motions, dismissed the Complaint with prejudice, and ordered the plaintiff’s counsel to reimburse Activision for the reasonable attorneys’ fees and costs that it incurred in the litigation.6 The court concluded that the “Plaintiff's counsel failed to conduct a reasonable pre-filing inquiry into the relevant facts” alleged in the Complaint because, among other things, Call of Duty: Infinite Warfare “is a first-person shooter game, not first-and third-person as alleged, and Sean Brooks does not conduct a scripted battle scene in a high fashion couture shopping mall. Plaintiff's counsel could have easily verified these facts prior to filing the factually baseless Complaint, just as the Court easily verified them within the first hour and a half of playing the game.”7
Sometimes, playing a game is its own reward. At other times, it is required by Rule 11.
For more information, please contact a member of the firm's electronic gaming practice. Wilson Sonsini Goodrich & Rosati routinely counsels clients in numerous fields, including e-commerce, computer software and hardware, gaming, and entertainment about trademark litigation and brand selection, enforcement, and defense.
Tomas Arriaga and Brian Levy contributed to the preparation of this Advisory.
[1] Compl. ¶ 23, Brooks Ent., Inc. v. Activision Blizzard, Inc., No. 21-CV-2003 TWR (MDD) (S.D. Cal. Nov. 30, 2021), ECF 1 (“Defendants are using Sean Brooks as its main character in “Call of Duty” this character uses the likeness, persona and name of Plaintiff’s owner Shon Brooks and further infringes on Plaintiff’s trademark for SHON BROOKS.”).
[2] Id. ¶ 28.
[3] Mayer Decl. Ex. 5, Brooks Ent., Inc. v. Activision Blizzard, Inc., No. 21-CV-2003 TWR (MDD), (S.D. Cal. Mar. 24, 2022), ECF 34-2.
[4] Id. ¶¶ 3–4.
[5] Brooks Ent., Inc. Response at 9:19–24, Brooks Ent., Inc. v. Activision Blizzard, Inc., No. 21-CV-2003 TWR (MDD), (S.D. Cal. March Apr. 28, 2022), ECF 36.
[6] Brooks Ent., Inc. v. Activision Blizzard, Inc., No. 21-CV-2003 TWR (MDD), 2022 U.S. Dist. LEXIS 123344 (S.D. Cal. July 12, 2022).
[7] Id. at *21, *34 (footnote omitted).
