Lawsuit Over Alleged Harassment in Forge of Empires Game Thrown Out

From Quinteros v. Innogames, decided Friday by Ninth Circuit Judges Jacqueline Nguyen, Eric Miller, and Daniel Collins:

Penny Quinteros appeals the district court’s dismissal of her third amended complaint asserting various claims based on harassment Quinteros says she suffered while playing defendants’ online video game, Forge of Empires….

First, a bit of the factual backstory from the district court decision, by Judge Ricardo Martinez (W.D. Wash.) (some record links added):

For purposes of this Motion, the Court will accept all facts in the latest Amended Complaint as true. The Court will briefly summarize the relevant facts….

Plaintiff, using the moniker “TwoCents,” played Forge of Empires “almost every day without interruption from 2016–2019 for over 10,000 hours of game play.”

Plaintiff maintains that the game is psychologically addictive and that she became psychologically dependent or addicted. Plaintiff alleges that instead of warning players of the addictive nature of the game, InnoGames exploited players with “micro-transactions.” Relying on representations made by InnoGames that the game was fair, Plaintiff sought to excel at the game. Her dependence on the game and/or desire to progress resulted in her spending over $9,000 on micro-transactions.

Around July of 2016, Plaintiff began experiencing gender-based harassment from other players, including some she alleges “were secretly InnoGames moderators, senior moderators, and community managers.” These players and/or “staff members” accused Plaintiff of being a man and started to solicit Plaintiff’s online friends and co-players to no longer engage with her socially or for game activities. Plaintiff pleads:

These other players, and secret InnoGames staff moderators, told the plaintiff that she had to prove she was a woman by sending a photograph of her breasts to them. They told her this was the only way they would stop harassing her. The plaintiff fell victim to this manipulation, and relying on statements from InnoGames and Julie Blan that the game was fun, fair, and the rules were enforced equally, sent a picture of her breasts (in a somewhat see-thru bra) to what she considered a friend and neutral third-party player, known as Gensmoky, via a screenshot link.

{Plaintiff alleges she registered a copyright for this photo of “her breasts in a somewhat see-thru bra” three years later, on September 3, 2019. The photo has been filed as an exhibit by Defendants. The Court denied a motion to seal this exhibit. That Order described the image as “a photograph depicting Plaintiff Ms. Quinteros’ upper torso in an opaque, teal sports bra covering her entire chest.” Where a sports bra would naturally dip down in front, Plaintiff tucked in a note covering all exposed skin. The note reads, “fuck off [unintelligible] Macy, DD, and the [unintelligible] Love, TwoC[ents].”}

Plaintiff alleges that Defendants were involved in continued harassment through their efforts as moderators of the game’s chat feature. Statements made by other players to Plaintiff included “‘what you are is a dumb sluuuuut,” “butthurt dumb ****biotch,” and “Inno won’t ban 2C [TwoCents] because she keeps sending them photos.” The names or monikers of the harassing players/staff members are not alleged. Plaintiff alleges she has been targeted by unnamed moderators “because she doesn’t display ‘typical female’ behavior.” A game moderator accused Plaintiff of having a “vulgar upbringing.” Other game moderators accused Plaintiff of “drama” or allowing her emotions to run high.

Plaintiff believes that the above behavior occurred, at least in part, because InnoGames advertised the game with “sexually explicit advertisements” which “created an unsafe environment for women players.”

Plaintiff reported her continued harassment to InnoGames and at least some of the individual Defendants. Plaintiff believes that the harassment violated InnoGames’ Terms and Conditions for playing Forge of Empires, but that Defendants failed to prevent the harassment. Plaintiff alleges that instead of acting to protect her, Defendants discriminated against her, enforcing rules disproportionately against her because of her gender, changing rules, and enforcing certain rules against her alone.

In reporting this harassment, Plaintiff, for whatever reason, also engaged in harassing and offensive language. This is demonstrated in her own attachment to her first Amended Complaint. Examples of harassment have previously been highlighted by Defendants:

Among the profane attacks Plaintiff made on InnoGames moderators and managers, were statements such as “F**k that, give me the number you dirty mother f***ing rancid p***y licking f**k” (asterisks added). Plaintiff threatened to change her username to ‘Pancea3 s**ks d’ …” (asterisks added). In perhaps her most profane and offensive attack on support staff, Plaintiff wrote “YOU are a dirty filthy b**ch. You f**king get down on your knees and s**k the rancid d**ks of other players. Or let them shove their fists up you’re a**s because you don’t have a single brain-cell left. Apparently there is quite seriously a thing as being “f**ked stupid.” You’re living proof.” (asterisks added).

This is language directed at Innogames support staff—not other players—through an online customer support system. Responding to that last “down on your knees” example, Innogames support staff stated “[w]e have, repeatedly, asked you not to curse or verbally abuse our team…. whilst as a customer you have a right to service, you don’t have a right to verbally abuse our team under any circumstances …. To draw a real world comparison, if you walked in to your local grocery store and verbally abused staff, the management has the right to remove you from their premises.”

Eight minutes later, Plaintiff wrote, “I have not, once verbally abused any member of your team. On the other hand you have, repeatedly asked me to modify my mode of address to a form of power as a method of silencing my rights as a woman. [citation to a Dame Magazine article]…. This is your final warning.” The argument between Plaintiff and customer support continues for several pages.

Some excerpts from the Ninth Circuit’s analysis:

[1.] Quinteros’s negligence per se claim … alleges that an InnoGames employee was able to “access … information” about Quinteros, including a photograph, and “release it to third-party players.” This claim necessarily relies on a vicarious-liability theory because an unknown third-party moderator, rather than any defendant, engaged in the allegedly wrongful conduct of accessing and distributing the photograph of Quinteros. The vicarious-liability theory fails, however, because Quinteros does not allege that the moderator was “acting on [InnoGames’s] behalf.” Under Washington law, if an employee “steps aside from the employer’s purposes in order to pursue a personal objective of the employee,” as Quinteros alleges the moderator did here, then “the employer is not vicariously liable.” The same result follows if the moderator was InnoGames’s agent rather than its employee.

Quinteros’s negligent-supervision claim also fails. Although an employer has a duty to “prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others,” it is “not liable for negligent supervision of an employee unless the employer knew, or in the exercise of reasonable care should have known, that the employee presented a risk of danger to others.” …  Because the moderator who allegedly wronged Quinteros was unknown to InnoGames, Quinteros does not plausibly allege that InnoGames knew or should have known of any “dangerous tendencies” of that particular moderator. Quinteros’s failure-to-protect claim fails for similar reasons….

Finally, the statements by defendants Julie Blan and Richard Stephenson to Quinteros “that they would enforce the rules equally against all players in order to prevent [her] harassment,” did not create an affirmative duty to rescue Quinteros from other players’ conduct. Without more, these statements by defendants at most reiterated game policy and expressed an intent to investigate. They do not plausibly amount to the voluntary undertaking of a special duty to “aid an individual in need.”

[2.] The district court correctly determined that Quinteros has not stated a defamation claim. Quinteros alleges that a moderator disclosed an “intimate image” she had sent to another player “for the express purpose of creating sexually explicit and harassing comments against Plaintiff” and also “directly” made harassing statements. Even if dissemination of an altered image may support a defamation claim, Quinteros does not allege that the “intimate image” was altered. Any statement made through its disclosure thus could not have been false. Nor can any negative implication the image conveyed support Quinteros’s claim, because [under Washington law] “a plaintiff may not base a defamation claim on the negative implication of true statements.” Yeakey v. Hearst Commc’ns, Inc. (Wash. Ct. App. 2010).

Quinteros further alleges that the disclosure of the image prompted harassing and defamatory statements, but as the district court recognized, she pleaded no facts about who made the statements or when, where, or to whom they were made. As for the statements allegedly made by Blan and Stephenson that Quinteros was “crazy” or “a liar,” those were not actionable because their audience and context suggest that they were “expressions of personal opinion,” and they did not imply undisclosed facts.

And some excerpts from a 2024 Ninth Circuit decision at an earlier stage of the case (this part was endorsed by Judges Mark Bennett, Jennifer Sung, and Holly Thomas):

[3.] Because Quinteros fails to state a claim for negligent conduct, or plausibly allege any physical injury stemming directly from Defendants’ conduct, she cannot state a claim for negligent infliction of emotional distress.

[4.] Likewise, Quinteros fails to state a claim for intentional infliction of emotional distress. Such a claim requires showing conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Here, Quinteros only alleges that Defendants inconsistently applied certain rules to her, helped her alleged harassers ban her from the game, and attempted to cover up the misconduct of moderators. None of these allegations rise to the level of outrageous conduct.

[5.] The district court properly dismissed Quinteros’s gender discrimination in public accommodations claim …. The district court correctly found Quinteros’s allegations {that her gender was a substantial factor causing the alleged discrimination} … were vague and conclusory.

[6.] Quinteros also fails to meet the heightened pleading standards for fraud. Here, Quinteros’s main allegation is that Defendants represented that game rules on the Forge of Empires platform would be applied fairly when they were applied unfairly. However, she fails to allege with particularity what specific statements Defendants made to her, who made these statements, when, and how she was deceived.

[7.] Quinteros fails to state a claim for unfair business practices under Washington’s Consumer Protection Act (CPA). A private plaintiff bringing a CPA claim must show that their lawsuit would serve the public interest. Washington courts consider a number of factors to assess whether a claim concerns the public interest, including whether acts: (1) were carried out in the course of business, (2) were part of a pattern or generalized course of conduct, (3) were repeated prior to the involvement of the plaintiff, (4) created a “real and substantial potential for repetition,” and (5) if the act is a single transaction, whether many consumers were affected. Applying [these] factors to Quinteros’s complaint, she fails to allege that her CPA claims concern the public interest.

[8.] Quinteros fails to state a products liability claim based on a design defect…. While she identifies certain features of Forge of Empires which she asserts are addictive and harmful, she fails to allege specific, factual allegations that are sufficient to show that the game was, as designed, unreasonably addictive [and thus not reasonably safe]….

[9.] [As to her] breach of contract claim, … Quinteros fails to plausibly allege the existence of a contract between her and Defendants, which imposed an obligation on Defendants to refrain from transmitting images or engaging in verbal harassment. Likewise, none of the allegations in the complaint represent that Quinteros is a third-party beneficiary of an agreement between Defendants and other users….

[10.] To make out a promissory estoppel claim, a promise must be “clear and definite” and include “manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” Quinteros fails to allege a clear and definite promise. She alleges only that she “relied on [unspecified] statements of fairness” for her promissory estoppel claims….

[11.] Quinteros alleges the copyright violation here took place before she registered the photograph in question with the U.S. Copyright Office. However, Quinteros “is entitled to statutory damages and attorneys’ fees only to the extent infringement occurred after the work was registered.” Because Quinteros fails to allege any other damages arising from the alleged copyright infringement with any specificity, [her copyright] claim was properly dismissed.

[12.] Quinteros’s gender discrimination in employment claim fails because it … merely asserts “[u]pon information and belief, the reason [she] was not hired [was] because she was a woman[.]” Quinteros alleges no underlying facts to support this bald assertion, and without more, she does not elevate her claim from the speculative to the plausible.

Friday’s Ninth Circuit decision also denied Quinteros’s motion to retroactively seal and proceed under a pseudonym, partly because those are rare exceptions to the rule of openness, and partly because “[t]his case has been proceeding publicly since 2019, and Quinteros has identified no additional threat to her privacy if it remains unsealed and she remains named.”

I asked Quinteros whether she had a statement, and she passed along the following:

Federal law, 15 U.S.C. § 6851, provides relief to victims of intimate image distribution and allows those victims to remain anonymous in lawsuits against the perpetrators. Unfortunately, the Ninth Circuit failed to extend this protection to my case which was filed before the law was enacted. It is disappointing that I am again forced to choose between protecting my reputation or protecting my rights.

As I see it, the photo image filed in the district court by defendants, which they state is a copy of the deposit image provided by plaintiff to the U.S. Copyright Office, does not appear to be an “intimate visual depiction” under the relevant part of the § 6851 definition:

The term “intimate visual depiction”-
(A) means a visual depiction … that depicts-
(i) the uncovered genitals, pubic area, anus, or post-pubescent female nipple of an identifiable individual ….

But Quinteros’s argument seems to be, to quote her Ninth Circuit brief,

The court further states that it would dismiss the additional claims due to the defendant’s argument that the image in question could not be considered an intimate image. Ms. Quinteros again argued that the picture evidence in question was inadmissible as it did not meet the best evidence rule and was submitted by defendants on a motion to dismiss, but her arguments were ignored by the district court. The district court stated, “Although not strictly necessary for dismissal of this claim, the Court finds that Plaintiff’s pleadings as to this image do not match any reasonable interpretation of the image, which is in the record. The image does not show a see-through bra. Defendants also assert that Plaintiff fails to plead damages stemming from the breach of contract.” Plaintiff objected to this image being relied on, and that objection was never addressed. The original image does show a see-thru bra and a visible areola, which is the “best evidence” to rely on, not the PDF copy that has been degraded in integrity so much that it has “fuzzed out” the necessary detail. Either way, whether that bra is see-thru or opaque is a question of fact that is not permissible to be decided on a motion to dismiss.

Note that, while factual disputes are indeed generally not resolved on motions to dismiss, but are supposed to be saved for the jury (or the judge in a bench trial), factfinding questions related to preliminary motions—such as motions to seal or motions to proceed under a pseudonym—are indeed a matter for the judge to resolve at the time of the motion.

Alan Behr (Phillips Nizer LLP) and Diana Breaux (Summit Law) represent defendants.