On May 17, 2022, Plaintiff Y.H. brought claims against Blizzard Entertainment making two sets of allegations: first, that booster packs in the game Hearthstone constitute unfair competition or unlawful gambling; and second, that Activision had discouraged underaged customers like the plaintiff from repudiating the contract.1
In large part, the plaintiff’s claims about gambling resemble the lootbox claims that have been rejected by numerous courts.2 However, Y.H.’s allegations about “pity timers” were relatively novel.
Hearthstone is a digital card-playing game in which players assemble decks of 30 cards from the cards in their collection. Players can purchase packs of cards using in-game currency or actual money. In general, Y.H. alleged that Blizzard did not disclose much information about the odds of receiving rarer cards in any given pack that she might purchase. Specifically, Y.H. alleged that she was informed only that “[a]t least 1 card [in the pack] will be Rare or better” without any information about the odds of receiving “Epic” or “Legendary” cards.3
In paragraph 25 of her complaint, Y.H. alleged that Blizzard “implemented a ‘Pity Timer’ on Hearthstone Packs” under which “[f]or each Pack that is opened that does not contain a ‘legendary’ item, Plaintiff incrementally increases the odds of receiving a ‘legendary’ item in the next Pack.” Y.H. indicated that the “pity timer” was harmful because it “helps feed into the players’ perception that purchasing ‘just one more’ Pack will provide the player with their desired cards instead of creating an equal opportunity to receive a ‘legendary’ item with each Pack purchase.”4
Y.H.’s counterintuitive argument that hidden favorable odds harmed her was also made in Mai v. Supercell Oy, No. 5:20-cv-05573-EJD (N.D. Cal.), in which the plaintiff alleged that the defendant’s loot boxes functioned as illegal gambling devices designed to “exploit and manipulate the addictive nature of human psychology.”5 The Supercell court did not address Mai’s claims about loot boxes odds specifically, instead dismissing the plaintiff’s claims for lack of standing for failure to identify cognizable economic harm.6
Here, as in Supercell, the court may not address Y.H.’s allegations about pity timers because Activision Blizzard filed a motion to dismiss on July 1, 2022, asserting that the case was moot because it accepted Y.H.’s disaffirmance and refunded to Y.H. the $1,179.71 that her lawyer said that she had spent on Hearthstone.7
Please do not hesitate to contact Aaron Hendelman, Christopher Paniewski or one of the other attorneys in the firm's electronic gaming group if you have any questions about loot boxes or random or other rewards in your game or interactive product.
Benjamin Hewitt, Laura McJilton, and Brian Levy contributed to the preparation of this advisory.
[1] Compl. at 2, Y.H. v. Blizzard Ent. Inc., No. 8:22-cv-998-SSS-ADS (C.D. Cal. May 17, 2022) (removed from Orange County Superior Court by the defendant on May 17, 2022).
[2] See Brian J. Levy, Recent Rulings Suggest Defendant Wins in Loot Box Cases Are Common, Appeals All Pending, Wilson Sonsini Alert (Apr. 7, 2022), https://www.wsgr.com/en/insights/recent-rulings-suggest-defendant-wins-in-loot-box-cases-are-common-appeals-all-pending.html.
[3] Compl. at 6, Y.H. v. Blizzard Ent, Inc.
[4] Id. at 7.
[5] Mai v. Supercell Oy, No. 5:20-cv-05573-EJD, 2021 WL 4267487, at *2 (N.D. Cal. 2021).
[6] Id. at *7.
[7] See Notice of Mot. & Mot. to Dismiss, Y.H. v. Blizzard Ent., Inc., No. 8:22-cv-998-SSS-ADS (C.D. Cal. July 1, 2022), ECF No. 19; Jacobson Decl., Y.H. v. Blizzard Ent., Inc., No. 8:22-cv-998-SSS-ADS (C.D. Cal. July 1, 2022), ECF No. 19-1.
