United States District Court, W.D. Washington, Tacoma
CHERYL KATER and SUZIE KELLY, individually and on behalf of all others similarly situated, Plaintiffs,
CHURCHILL DOWNS INCORPORATED, a Kentucky corporation, and BIG FISH GAMES, INC., a Washington corporation, Defendants. MANASA THIMMEGOWDA, individually and on behalf of all others similarly situated, Plaintiff,
BIG FISH GAMES, INC., a Washington corporation; ARISTOCRAT TECHNOLOGIES INC., a Nevada corporation; ARISTOCRAT LEISURE LIMITED, an Australian corporation; and CHURCHILL DOWNS INCORPORATED, a Kentucky corporation, Defendants.
ORDER ON TEMPORARY RESTRAINING ORDER AND LIMITED
RELIEF FROM LITIGATION STAY
B. Leighton United States District Judge.
MATTER is before the Court on Plaintiffs' Motions for
Temporary Restraining Order and Limited Relief from
Litigation Stay [Dkt. #s 73 (in Thimmegowda) and 122 (in
Kater]. The facts underlying these two class action lawsuits
were summarized by the Ninth Circuit in Kater v.
Churchill Downs Inc., 886, F.3d 784, 785-86
(9th Cir. 2018):
Big Fish Casino is a game platform that functions as a
virtual casino, within which users can play various
electronic casino games, such as blackjack, poker, and slots.
Users can download the Big Fish Casino app free of charge,
and first-time users receive a set of free chips. They then
can play the games for free using the chips that come with
the app, and may purchase additional chips to extend
gameplay. Users also earn more chips as a reward for winning
the games. If a user runs out of chips, he or she must
purchase more chips to continue playing. A user can purchase
more virtual chips for prices ranging from $1.99 to nearly
only material differences between the cases are the addition
of Big Fish's new owner as a defendant in Thimmegowda,
and class definitions that cover different time periods. The
proposed Kater class covers persons who lost purchased chips
at Defendants' games before March 23, 2015, and the
proposed Thimmegowda class covers persons who lost chips
after that date. The pending motions are identical, and the
Court will use the singular “motion” for clarity.
Motion to Lift the Stay for the purpose of resolving the
underlying TRO motion is GRANTED. Plaintiffs' Motion for
Temporary Restraining Order is GRANTED in the form of a
Preliminarily Injunction limiting Defendants'
dissemination of the pop-up notification regarding the Big
October 14, 2019), as described below.
Fish Casino website. Before then, the game's Terms
contained a generic arbitration agreement, which is the
subject of pending motions in both cases. The updated Terms,
however, are expressly directed at this lawsuit:
Cheryl Kater, Suzie Kelly, and Manasa Thimmegowda, who are
named plaintiffs in class action lawsuits pending in the
Western District of Washington: Kater v. Churchill Downs
Inc., No. 15-cv-00612-RBL, and Thimmegowda v. Big
Fish Games, Inc., No. 2:19-cv-00199-RBL. The lawsuits
allege claims relating to Big Fish Casino under the
Washington Recovery of Money Lost at Gambling statute, the
Washington Consumer Protection Act, and Washington common
law. The mandatory arbitration provision in these Terms of
Use prevents you from participating in these class action
lawsuits, even if a class is certified.
(https://www.bigfishgames.com/company/terms.html). The Terms
do not provide information about the current status of these
cases, the type of relief being sought, the Court's
previous decisions about arbitration in Kater, or
how to contact Plaintiffs' counsel. They do not advise
players to seek their own counsel if they have questions
about the Terms. The Terms include an opt-out provision,
which purports to permit players to opt out of the
arbitration agreement within 30 days of clicking the "I
than 30 days after changing the Terms (about October 14,
2019), Big Fish's games began displaying a new pop-up
window. The pop-up expressly references this litigation and
tells players that clicking the "I Agree" button
means that they will not be permitted to participate in these
lawsuits. Players cannot continue to play the game unless
they click the “I Agree” button, even if they
have already purchased chips. The pop-up window is depicted
did not tell Plaintiffs, Plaintiffs' counsel, or the
of the pop-up window. Nor has the Court authorized any form
of class notice. In fact, both cases have been stayed, with
limited exceptions, pending the Ninth Circuit's
resolution of the appeal in Wilson v. Huuuge, Inc.
(Kater Dkt. # 121; Thimmegowda Dkt. # 70).