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Keker & Van Nest Wins Bid to Arbitrate Class Action


A California federal judge has granted Google's bid to arbitrate a class action accusing it of creating unfair terms of use for its online SuperPoke! Pets game, which the company shut down in March amid outcry from users who had "invested" real dollars on in-game pet customization.

In a July 12 ruling, Judge William Alsup determined that the plaintiffs' sole claim challenging the validity of an arbitration clause imbedded in the game's terms of use was insufficient, and therefore the remaining six claims must be sorted out in arbitration.

The suit, launched by a group of virtual pet owners in January, claims Google’s decision to shutter the service denied them access to virtual “property” — in the form of pet customizations on which users claim to have spent hundreds or even thousands of dollars — and that an obligatory terms of use agreement contained “unconscionable” terms that left them no recourse against the company.

The class plaintiffs raised four arguments against the arbitration clause in their complaint — including a mistaken assessment of the size of required arbitration filing fees and claims of an attorney-fee waiver that did not actually exist.

The remaining claims, including violation of the California Consumer Legal Remedies Act and California’s Unfair Competition Law, fraud and unjust enrichment, concerned other sections of the terms of use and were therefore outside the scope of a ruling on Google's arbitration bid, Judge Alsup said.

SuperPoke! Pets, founded by Google subsidiary Slide Inc. in 2008, allowed users to adopt, care for and customize virtual pets using in-game currency either earned through completing tasks or purchased with real dollars.

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Google is represented by Benedict Hur, Steven Taylor, Robert A. Van Nest and Audrey Walton-Hadlock of Keker & Van Nest LLP.

As an intellectual property and complex commercial litigator with a deep understanding of the gaming and mobile application industries, Ben Hur helps those companies and developers protect their greatest assets – innovative ideas, products and relationships.

Steven Taylor’s experience runs the gamut of civil and criminal cases. He has extensive experience representing both companies and individuals in high-stakes disputes, often involving multiple parties and related actions. His cases have involved intellectual property matters, partnership disputes, breach of fiduciary duty, securities fraud and insider trading investigations, professional malpractice actions, and alleged violations of Section 337 of the Tariff Act.

Bob Van Nest is a nationally recognized trial lawyer who frequently handles high-stakes cases for clients such as Intel, Google, Medtronic, Broadcom, and American Honda. His practice ranges widely over the field of complex business litigation and intellectual property. He has tried cases involving patent infringement, securities fraud, trademarks, commercial contracts, RICO, partnership disputes, real estate, insurance bad faith and mail and wire fraud.

Audrey Hadlock’s practice spans a wide range of complex civil litigation matters, including intellectual property, breach of contract, breach of fiduciary duty and fraud. Her compelling written work and creative analysis of challenging legal issues have helped secure victories for her clients in trial and appellate courts.