Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`
`
`
`
`ERICA MONTOYA, on behalf of
`herself and all others similarly
`situated,
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`GOOGLE, LLC and GOOGLE
`PAYMENT CORP.,
`
`
`
`
`
`
`
`Defendants.
`
`
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`
`
`
`
`
`
`
`
`
`
`
`
`No.:
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`
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`
`
`
`
`STATEWIDE CLASS ACTION COMPLAINT
`
`
`
`Plaintiff Erica Montoya, on behalf of herself and others similarly situated, brings this action
`
`against defendants Google LLC and Google Payment Corporation (hereafter “Google”), to recover
`
`money lost to illegal gambling pursuant to Section 44-5-1 of the New Mexico Statutes, 2018. See
`
`also NM Stat. §§ 30-19-1 et seq. Google promotes, enables, and profits from games downloaded
`
`from its Google Play Store and played by numerous New Mexico residents that constitute illegal
`
`gambling under the statutory law and the strong public policy of the state of New Mexico. Plaintiff
`
`seeks to represent a class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure.
`
`PARTIES, JURISDICTION, AND VENUE
`
`
`
`1.
`
`Plaintiff Erica Montoya is an adult resident citizen of the State of New Mexico,
`
`residing in Bernalillo County, New Mexico.
`
`
`
`2.
`
`Defendant Google LLC is a Delaware limited liability company with its principal
`
`place of business in Mountain View, California. Google LLC is the primary operating subsidiary
`
`of the publicly traded holding company Alphabet Inc. Google LLC does business by agent in this
`
`state, district, and division.
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`

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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 2 of 15
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`3.
`
`Defendant Google Payment Corp. is a Delaware corporation with its principal place
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`of business in Mountain View, California. It is a wholly-owned subsidiary of defendant Google
`
`LLC. Google Payment Corp. provides in-app payment processing services to Android app
`
`developers and Android users, collecting a 30% commission on most in-app purchases such as the
`
`ones made the basis of this lawsuit. It does business by agent in this state, district, and division.
`
`For ease of reference, Google LLC and Google Payment Corp. will be referred to hereinafter
`
`collectively as “Google.”
`
`
`
`4.
`
`This is a class action brought by New Mexico citizens against a California
`
`company. The amount in controversy exceeds $5 million, exclusive of interest and costs. Subject
`
`matter jurisdiction exists pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d).
`
`
`
`5.
`
`Venue is proper under 28 U.S.C. § 1391(b)(2), because this is a “judicial district in
`
`which a substantial part of the events or omissions giving rise to the claim occurred.”
`
`FACTUAL BACKGROUND
`
`
`
`6.
`
`Google is one of the leading technology companies in the world. Its parent company
`
`Alphabet Inc. has a market capitalization approaching $1 trillion. One of its leading businesses
`
`stems from its ownership and control of the Android mobile operating system, which is installed
`
`on virtually every smart phone and tablet not manufactured by Apple. Nearly all applications that
`
`run on the Android operating system are downloaded via the Google Play Store.
`
`
`
`7.
`
`While the Android OS was originally touted as an “open” system that allowed for
`
`installation of software applications not controlled by Google, today the truth is quite different.
`
`Google has erected contractual and technological barriers that foreclose any competing methods
`
`to distribute apps to Android users. As a result, the Google Play Store maintains an almost-total
`
`monopoly on the distribution of apps made to run on the Android OS, including in-app purchases.
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`2
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 3 of 15
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`As noted, Google takes up to 30% of all revenue generated by app sales in the Google Play Store
`
`and in-app purchases made on apps obtained through the Google Play Store. Millions of software
`
`developers make applications for the Android OS that as a practical matter are available only via
`
`the Google Play Store.
`
`
`
`8.
`
`Many apps, including those that are the subject of this lawsuit, are initially free to
`
`download but contain in-app purchases that a customer can choose to purchase inside the app.
`
`Google provides the payment interface for all such purchases and, as noted, takes a hefty
`
`percentage of the money for itself. A 30% processing fee is many times the charge that other
`
`payment processors outside the Android ecosystem, such as Western Union, charge for processing
`
`such payments.
`
`
`
`9.
`
`The money charged for in-app purchases is paid to Google. An Android customer
`
`is required to provide a method of payment, usually a credit or debit card, for all purchases made
`
`in the Google Play Store, including in-app purchases. Google then has a contractual obligation to
`
`the software developers to remit a portion of the money Google receives from the purchases,
`
`typically 70%, to the developers. This contractual arrangement is between Google and the
`
`developers who sell products in the Google Play Store. As between plaintiff and the class members
`
`and Google, however, all in-app and other purchases involve the payment of money to Google,
`
`not the developers.
`
`
`
`10.
`
`This case concerns Google’s profiting from illegal gambling machine games that it
`
`sells in its Google Play Store. Google and its chief mobile software competitor, Apple, both allow
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`customers to purchase games that are no more or no less than casino-style slot machines, casino
`
`style table games, and other common gambling games.
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`3
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 4 of 15
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`11.
`
`There are numerous such gambling games that Google makes available in the
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`Google Play Store, and there is very little variation on how they work. When a customer downloads
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`the game and opens it for the first time, the customer has a set number of free starting “coins,” for
`
`example, 100,000 or 1,000,000, to play the slots. The games themselves work precisely like a
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`casino slot machine or other games in Las Vegas. In addition to slots, customers can play
`
`blackjack, roulette, poker, keno, bingo, and other card and gambling games. A loss results in a loss
`
`of “coins,” but the customer has the chance to win more coins. Eventually a customer runs out of
`
`coins, and is prompted to use real money to buy more coins for the opportunity to keep playing
`
`the game. Hundreds of such games exist. The 200 most downloaded games are in the following
`
`table:
`
`Slotomania™ Free Slots: Casino
`
`1 Slot Machine Games
`Jackpot Party Casino Games: Spin
`
`2 FREE Casino Slots
`Cash Frenzy™ Casino – Free Slots
`
`3 Games
`POP! Slots ™- Play Vegas Casino
`
`4 Slot Machines!
`Cashman Casino: Vegas Slot
`
`5 Machines! 2M Free!
`6 DoubleU Casino - Free Slots
`
`7 Vegas Slots - DoubleDown Casino
`House of Fun™: Free Slots &
`
`8 Casino Slots Machines
`Lotsa Slots - Free Vegas Casino Slot
`
`9 Machines
`Huuuge Casino Slots - Slot
`
`10 Machines 777
`Slots: Heart of Vegas™ – Free Slot
`
`11 Casino Games
`Big Fish Casino - Play Slots and
`
`12 Casino Games
`Lightning Link Casino: Free Vegas
`
`13 Slots! 10M Bonus
`
`Bingo Adventure-Free casino game with
`
`101 bingo bonus
`
`102 Superb Casino - HD Free Slots Games
`
`103 FoxwoodsONLINE - Free Casino
`Gambino Slots: Free Online Casino Slot
`
`104 Machines
`Blazing 7s™ Casino Slots - Free Slots
`
`105 Online
`106 Bravo Casino- Free Vegas Slots
`Baba Wild Slots - Slot machines Vegas
`
`107 Casino Games
`
`108 VegasStar™ Casino - FREE Slots
`Grand Win Casino - Hot Vegas Jackpot Slot
`
`109 Machine
`
`110 MONOPOLY Bingo!
`
`111 Texas HoldEm Poker Deluxe
`Vegas World Casino: Free Slots & Slot
`
`112 Machines 777
`
`113 Casino X - Free Online Slots
`
`
`
`4
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 5 of 15
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`14 Caesars Casino: Free Slots Games
`15 Wizard of Oz Free Slots Casino
`Hit it Rich! Lucky Vegas Casino
`
`16 Slot Machine Game
`Quick Hit Casino Games - Free
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`17 Casino Slots Games
`Billionaire Casino Slots - Slot
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`18 Machines 777
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`19 Casino & Slot Games
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`20 Machine Games
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`25 Vegas Slots
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`27 Games for Free
`Club Vegas: Online Slot Machines
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`28 with Bonus Games
`MONOPOLY Slots Free Slot
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`29 Machines & Casino Games
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`30 Slots
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`32 Machine Games
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`35 Bingo Games
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`36 Slots
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`116 Bingo City 75: Free Bingo & Vegas Slots
`Real Casino - Free Vegas Casino Slot
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`117 Machines
`Double Win Vegas - FREE Slots and
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`118 Casino
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`119 DoubleX Casino - Free Slots
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`120 Lucky Draw - 3D Casino Slots
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`121 game 777
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`122 Casino Games
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`123 Wheel of Fortune Slots Casino
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`124 WinStar Online Casino & eGames
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`125 Machines
`World Poker Tour - PlayWPT Free
`
`126 Texas Holdem Poker
`Epic Diamond Slots – Free Vegas Slot
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`127 Machines
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`128 Games
`Win Vegas x NASCAR: 777 Classic Slots,
`
`129 Free Casino
`
`130 Magic Vegas Casino: Slots Machine
`mychoice casino jackpot slots + free casino
`
`131 games
`Vegas Casino Slots 2020 - 2,000,000 Free
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`132 Coins
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`133 Slots Vacation - FREE Slots
`Slots Billionaire: Free Slots Casino Games
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`134 Offline
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`135 The Big Jackpot
`DoubleDown Classic Slots - FREE Vegas
`
`136 Slots!
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`
`
`5
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 6 of 15
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`Neverland Casino Slots 2020 -
`
`37 Social Slots Games
`Cash Mania Slots - Free Slots
`
`38 Casino Games
`Classic Slots-Free Casino Games &
`
`39 Slot Machines
`Tycoon Casino™: Free Vegas
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`40 Jackpot Slots
`Jackpot Slot Machines - Slots Era™
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`41 Vegas Casino
`Double Win Casino Slots - Real
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`42 Vegas Night Slots
`Vegas Friends - Casino Slots for
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`43 Free
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`
`44 Games & Blazing Slots
`High 5 Casino: The Home of Fun &
`
`45 Free Vegas Slots
`Rock N' Cash Casino Slots -Free
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`46 Vegas Slot Games
`47 Ignite Classic Slots
`Casino Slots DoubleDown Fort
`
`48 Knox Free Vegas Games
`
`49 Bingo Blaze - Free Bingo Games
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`50 machine
`Huge Win Slots - Real Casino Slots
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`51 in Vegas Nights
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`52 Slots Games
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`53 Slots Casino - Jackpot Mania
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`Jackpot Fever – Free Vegas Slot
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`54 Machines
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`55 Casino Games
`Wild Classic Slots™ - Best Wild
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`56 Casino Games
`Casino Jackpot Slots - Infinity
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`57 Slots™ 777 Game
`58 星城Online
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`59 Machines
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`Buffalo 5-Reel Deluxe - Free Classic Slots
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`137 Casino
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`138 Best Casino Slots - 777 Vegas Slots Games
`Video Poker - Classic Casino Games Free
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`139 Offline
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`140 Play Las Vegas - Casino Slots
`Vegas Night Slots - HOT&FREE VEGAS
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`141 CASINO GAMES
`Full House Casino - Free Vegas Slots
`
`142 Machine Games
`Ultimate Slots: 2019 Vegas Casino Slot
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`143 Machines
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`144 Let's Vegas Slots
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`145 Bingo 90 Live: Vegas Slots & Free Bingo
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`146 Slots of Vegas
`147 Lucky Lottery Scratchers
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`148 San Manuel Slots
`Diamond Sky Casino – Classic Vegas Slots
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`149 & Lottery
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`Best Bet Casino™ | Best Free Slots &
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`150 Casino Games
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`151 Vegas Craps by Pokerist
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`152 Vegas Slots Galaxy Free Slot Machines
`Slots : FREE Vegas Slot Machines - 7Heart
`
`153 Casino!
`麻將 明星3缺1麻將–台灣16張麻將
`Mahjong 、SLOT、Poker
`154
`Woohoo Slots : Play Free Casino Slot
`
`155 Machine Games
`
`156 Slots™
`
`157 Casino Frenzy - Free Slots
`158 Manly Slots: Slots for Men
`Spin 4 Win Slots - Real Vegas for Senior
`
`159 Slot Fan
`
`
`
`6
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`

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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 7 of 15
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`Wynn Slots - Online Las Vegas
`
`60 Casino Games
`Bingo: Lucky Bingo Games Free to
`
`61 Play at Home
`Clubillion™- Vegas Slot Machines
`
`62 and Casino Games
`
`63 Coin Dozer: Sweepstakes
`Lucky Time Slots Online - Free Slot
`
`64 Machine Games
`Show Me Vegas Slots Casino Free
`
`65 Slot Machine Games
`Bingo Frenzy! Bingo Cooking Free
`
`66 Live BINGO Games
`Cash Storm Casino - Online Vegas
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`67 Slots Games
`Slots: DoubleHit Slot Machines
`
`68 Casino & Free Games
`FaFaFa™ Gold Casino: Free slot
`
`69 machines
`70 SLOTS - Black Diamond Casino
`NEW SLOTS 2020－free casino
`
`71 games & slot machines
`Bingo Club--Pop bingo games
`
`72 online with numbers
`Cash Blitz - Free Slot Machines &
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`73 Casino Games
`Bingo Drive – Free Bingo Games to
`
`74 Play
`Vegas Downtown Slots™ - Slot
`
`75 Machines & Word Games
`Old Vegas Slots – Classic Slots
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`76 Casino Games
`Jackpotjoy Slots: Slot machines with
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`77 Bonus Games
`HighRoller Vegas - Free Slots &
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`78 Casino Games 2020
`Golden Tiger Slots - Online Casino
`
`79 Game
`80 ManganDahen Casino - Free Slot
`81 Coin Trip
`Golden Casino: Free Slot Machines
`
`82 & Casino Games
`Free Slot Machines & Casino Games
`
`83 - Mystic Slots
`
`Multi-Strike Poker ™ | Free Multi-Play
`
`160 Video Poker
`
`161 Seminole Social Casino
`Ellen's Road to Riches Slots & Casino Slot
`
`162 Games
`Players Paradise Casino Slots - Fun Free
`
`163 Slots!
`SLOTS GRAPE - Free Slots and Table
`
`164 Games
`
`165 Bingo PartyLand 2 - Free Bingo Games
`Star Spins Slots: Vegas Casino Slot
`
`166 Machine Games
`Slots! CashHit Slot Machines & Casino
`
`167 Games Party
`
`168 DoubleU Bingo - Free Bingo
`
`169 VIDEO POKER OFFLINE FREE!
`170 Poker Night in America
`Super Jackpot Slots - Vegas Casino Slot
`
`171 Machines
`City of Dreams Slots - Free Slot Casino
`
`172 Games
`
`173 Sunny's Rooster Reels
`
`174 Vegas Deluxe Slots:Free Casino
`
`175 Binion's Casino
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`176 CLUE Bingo!
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`177 OMG! Fortune Slots - Grand Casino Games
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`178 ايوب ساسكت ركوب (Texas Boya Poker)
`Bingo Infinity™ - Free Casino Slots &
`
`179 Bingo Games
`180 777 Slots - Free Vegas Slots!
`181 Coin Dozer: Casino
`Bingo Town - Live Bingo Games for Free
`
`182 Online
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`183 High Rollin' Vegas Slots
`
`7
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 8 of 15
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`The Walking Dead: Free Casino
`
`84 Slots
`Take5 Free Slots – Real Vegas
`
`85 Casino
`86 DH Texas Poker - Texas Hold'em
`Gold Fortune Casino™ - Free Vegas
`
`87 Slots
`88 ZitoBox
`Grand Jackpot Slots - Pop Vegas
`
`89 Casino Free Games
`
`90 Video Poker Classic Free
`Jackpot Planet - a New Adventure of
`
`91 Slots Games
`
`92 Slingo Arcade: Bingo Slots Game
`Super Win Slots - Real Vegas Hot
`
`93 Slot Machines
`GSN Grand Casino – Play Free Slot
`
`94 Machines Online
`
`95 Hard Rock Social Casino
`96 Slots Free - Big Win Casino™
`Epic Jackpot Slots - Free Vegas
`
`97 Casino Games
`Slots Pharaoh's Way Casino Games
`
`98 & Slot Machine
`GamePoint Bingo - Free Bingo
`
`99 Games
`
`100 Vegas Slots: Deluxe Casino
`
`184 Lucky North Casino- Free Slots
`
`185 Lucky Win Casino™- FREE SLOTS
`186 NPlay Pro
`
`187 Lucky Duck Slots
`188 Slots Free - Vegas Casino Slot Machines
`
`189 Tongits Go - The Best Card Game Online
`Play To Win: Win Real Money in Cash
`
`190 Sweepstakes
`Dragon 88 Gold Slots - Free Slot Casino
`
`191 Games
`777 Classic Slots: Free Vegas Casino
`
`192 Games
`Link It Rich! Hot Vegas Casino Slots
`
`193 FREE
`
`194 Golden Wins Casino Slots
`Slots on Tour Casino - Vegas Slot Machine
`
`195 Games HD
`196 Cash Fever Slots™-Vegas Casino
`Teen Patti Gold - 3 Patti, Rummy, Poker
`
`197 Card Game
`HD Poker: Texas Holdem Online Casino
`
`198 Games
`Cashmania Slots 2020: Free Vegas Casino
`
`199 Slot Game
`Live Poker Tables–Texas holdem and
`
`200 Omaha
`
`
`
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`12.
`
`Plaintiff Erica Montoya downloaded and played three of these casino-style
`
`gambling games. During the last three years, she has downloaded House of Fun, Zito Box, and
`
`Jackpot Party from the Google Play Store. Beginning on August 21, 2017, she began purchasing
`
`coins through the app so she could continue to play for a chance to win free coins that would enable
`
`her to enjoy the games for a longer period of time. In the six months prior to the filing of this
`
`complaint, she paid $784.44 to Google for the privilege of continuing to play the illegal gambling
`
`games.
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`8
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 9 of 15
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`
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`13. A customer such as plaintiff does not have the ability to collect actual cash as a
`
`result of “winning” games, but he does have the ability to win and therefore acquire more playing
`
`time. The Supreme Court of New Mexico has made it clear that paying money in a game of chance
`
`for the opportunity to win free replays or additional playing time constitutes illegal gambling under
`
`New Mexico law. Giomi v. Chase, 1942-NMSC-071, ¶ 19.
`
`
`
`14.
`
`Google is not some minor or incidental participant in these illegal gambling games.
`
`It is the principal promoter and facilitator of the illegal activity. Google maintains dictatorial
`
`control over what apps can be downloaded from the Google Play Store, and the payment method
`
`to purchase in-app items. As the maker of the Fortnite game alleged in a recent antitrust injunction
`
`lawsuit against Google:
`
`Google has eliminated competition in the distribution of Android apps using myriad
`contractual and technical barriers. Google’s actions force app developers and
`consumers into. Google’s own monopolized “app store”—the Google Play Store.
`Google has thus installed itself as an unavoidable middleman for app developers
`who wish to reach Android users and vice versa. Google uses this monopoly power
`to impose a tax that siphons monopoly profits for itself every time an app developer
`transacts with a consumer for the sale of an app or in-app content
`
`Complaint for Injunctive Relief, Epic Games v. Google LLC, et al, in the United States District
`
`Court for the Northern District of California, August 13, 2020, C3:20-cv-05671 ¶ 10 (copy
`
`attached). As noted, Google uses its unfettered control over apps played on the Android OS to
`
`extract a hefty 30% tax on all purchases made to buy apps or in-app content such as “coins” to
`
`gamble with.
`
`
`
`15. Google has the ability, which it has employed on other apps, to geo-restrict games
`
`so that they can only be played in certain states. In fact, with cash-out gambling games it regularly
`
`restricts those game so that they can only be played in states where that type of gambling is legal.
`
`Google has also restricted gambling games such as the ones made the basis of this lawsuit so that
`
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`9
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 10 of 15
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`minors cannot download or play them. It has the ability with existing technology it currently uses
`
`to prevent the games at issue here from being played in this state.
`
`
`
`16.
`
`Google’s Play Store is not just a venue to buy Android apps. It is a promotional
`
`tool. Google heavily promotes apps, such as the illegal gambling games that form the basis of this
`
`complaint, that promise to bring in revenue. Revenue from the Google Play Store is the reason
`
`Google is such a dominant force in the technology world.
`
`
`
`
`
`17.
`
`Thus, Google enables, permits, promotes, and profits from illegal gambling.
`
`NEW MEXICO LEGAL FRAMEWORK
`
`18.
`
`New Mexico has a strong public policy against gambling in this state. The state’s
`
`strong public policy against gambling includes a statutory right of persons who spend money on
`
`gambling to recover their money.
`
` 19.
`
`The New Mexico criminal laws pertaining to gambling are codified at Sections 30-
`
`19-1 through 30-19-15 of the New Mexico Statutes, 2018. Section 30-19-3 defines the offense of
`
`commercial gambling to include the following:
`
`A. participating in the earnings of or operating a gambling place;
`
`*
`
`*
`
` *
`
`
`
`
`F. setting up for use, for the purpose of gambling, or collecting the proceeds of,
`any gambling device.
`
`NM Stat. § 30-19-3.
`
`
`
`20.
`
`Section 30-19-1, in turn, defines a “gambling device:”
`
`“gambling device” means a contrivance other than an antique gambling device that
`is not licensed for use pursuant to the Gaming Control Act and that, for a
`consideration, affords the player an opportunity to obtain anything of value, the
`award of which is determined by chance, even though accompanied by some skill,
`whether or not the prize is automatically paid by the device
`
`NM Stat § 30-19-1.
`
`
`
`10
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 11 of 15
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`21.
`
`
`
`As already noted, “anything of value” in the definition of gambling device is not
`
`limited under New Mexico law to the situation where one gambles in the hopes of winning actual
`
`cash money. Rather, New Mexico’s Supreme Court has long held that the definition includes the
`
`opportunity to win free replays or the extension of time. Giomi v. Chase, 132 P.2d 715, 718-19
`
`(N.M. 1942). As a matter of law, paying money to get “coins” one bets hoping to win more “coins”
`
`so as to gain the “privilege of playing at a game or scheme without charge” is gambling a thing of
`
`value under New Mexico law.
`
`
`
`22.
`
`As to the prohibition of commercial gambling in Section 30-19-3, the statute
`
`prohibits participating in the earnings of a gambling place and setting up a gambling device. By
`
`allowing gambling apps to operate on the Google Play Store and taking a significant percentage
`
`of the money paid by users to play them, Google participates in the earnings of a gambling place.
`
`By providing a platform on which apps operate gambling devices, it helps to set up such devices.
`
`Google does these things in direct violation of New Mexico law.
`
`
`
`23.
`
`New Mexico provides a statutory civil cause of action to recover money paid and
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`lost due to gambling. Section 44-5-1 of the New Mexico Statutes provides:
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`Any person who shall lose any money or property at any game at cards, or at any
`gambling device, may recover the same by action of debt, if money; if property, by
`action of trover, replevin or detinue.
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`CLASS ALLEGATIONS
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`24.
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`Plaintiff seeks to certify and represent a class pursuant to Rule 23(b)(3) of the
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`Federal Rules of Civil Procedure. The class sought to be certified is:
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`All New Mexico residents who downloaded, played, and paid money for additional
`coins within games from the Google Play Store that featured slots, roulette,
`blackjack, poker, keno, craps, and other kinds of casino-style gambling games,
`bingo, or simulations thereof, where the player had a chance to win coins or other
`means to play for additional periods of time, during a period commencing one year
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 12 of 15
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`before the filing of this complaint and continuing to a date to be set by the Court
`following certification. All employees of the Court, and plaintiff’s counsel and their
`families are excluded.
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`25.
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`This class action satisfies the numerosity requirement of Rule 23(a)(1) because
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`joinder of all members of the plaintiff class is impracticable. There are thousands of New Mexico
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`residents who are members of the class.
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`26.
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`It also satisfies the commonality requirement of Rule 23(a)(2) because there are
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`central questions of fact and law that are common to the class. Such common questions include, at
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`a minimum, (a) whether these virtually identical gambling games sold through the Google Play
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`Store violate New Mexico’s prohibition of illegal gambling; (b) whether gambling for additional
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`play-time is a thing of value under New Mexico law; (c) whether Google committed the offense
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`of commercial gambling through its participation in the sale of in-app purchases through the App
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`Store; and (d) whether plaintiff and the class members are entitled to recover their money pursuant
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`to Section 44-5-1 of the New Mexico Statutes.
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`27.
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`The proposed class satisfies the typicality requirement of Rule 23(a)(3) because the
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`named plaintiff’s claims are typical of the claims of the class members. Both plaintiff and the class
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`members lost money in an effort to win additional play-time on these illegal gambling games.
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`28.
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`The named plaintiff will fairly and adequately represent the interests of the class
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`pursuant to Rule 23(a)(4). Plaintiff has no interests that conflict with the interests of the class.
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`Furthermore, plaintiff has retained competent and experienced counsel with decades of experience
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`litigating class cases.
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`29.
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`Plaintiff seeks certification of a class pursuant to Rule 23(b)(3), which allows class
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`treatment of a claim where:
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`(3) the court finds that the questions of law or fact common to class members
`predominate over any questions affecting only individual members, and that a class
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 13 of 15
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`action is superior to other available methods for fairly and efficiently adjudicating
`the controversy. The matters pertinent to these findings include:
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`(A) the class members' interests in individually controlling the prosecution or
`defense of separate actions;
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`(B) the extent and nature of any litigation concerning the controversy already begun
`by or against class members;
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`(C) the desirability or undesirability of concentrating the litigation of the claims in
`the particular forum; and
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`(D) the likely difficulties in managing a class action.
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`30.
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`The common questions of law and fact in this case vastly predominate over any
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`individual issues affecting only individual class members. The only individual issue presented by
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`these class members is the exact amount of money damages to which each class member is entitled.
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`Such damages issues are routinely held not to predominate over common questions in cases like
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`this. Indeed, the individual damages issues will be quickly and accurately determined by
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`examining Google’s own records.
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`31.
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`Class treatment is by far superior to individual litigation as a fair and efficient way
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`to adjudicate this controversy. Given the relatively small individual amounts at issue, it unlikely
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`whether there would be any adjudication at all without use of the class device. No individual class
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`member would rationally commence and prosecute a lawsuit where the individual amount in
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`controversy likely would not exceed the filing fees.
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`32.
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`For this reason, none of the class members have any interest in controlling the
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`prosecution of separate actions.
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`33.
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`Likewise, to our knowledge, no class member has already commenced an action
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`concerning this controversy.
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 14 of 15
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`34.
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`It would much more desirable to concentrate this case in one action rather than
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`allow the prosecution of individual actions because, as noted, such individual actions would likely
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`never be filed because there would be no motivation for any individual class member to file an
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`individual suit.
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`35. We foresee no particular difficulties in managing this case as a class action because
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`100% of the necessary information to compensate the individual class members is contained in
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`Google’s own records concerning purchases made through the Google Play Store.
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`CAUSE OF ACTION
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`33.
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`Plaintiff, on his own behalf and on behalf of those similarly situated, seek recovery
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`of all sums paid through in-app purchases in these games made through the Google Play Store
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`pursuant to Section 44-5-1 of the New Mexico Statutes, 2018.
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`PRAYER FOR RELIEF
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`WHEREFORE, the premises considered, plaintiff asks the Court to:
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`1.
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`2.
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`3.
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`Take jurisdiction of this cause;
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`Following discovery, certify this case as a class action pursuant to Rule 23(b)(3);
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`Appoint the undersigned as Class Counsel and the named plaintiff as class
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`representative;
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`4.
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`Enter a final judgment against Google awarding plaintiff and the class members a
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`refund of all money paid through the illegal gambling games described herein;
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`5.
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`Award Class Counsel reasonable attorneys’ fees and expenses to be paid out of the
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`judgment in favor of the class;
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`6.
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`Award the named plaintiff a reasonable sum of money for her services in this case
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`on behalf of the class, also to be paid out of the judgment in favor of the class;
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`Case 1:20-cv-01098-GJF-CG Document 1 Filed 10/23/20 Page 15 of 15
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`7.
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`8.
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`Award interest and costs; and
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`Award any other relief to which the Court finds plaintiff and the class are entitled.
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`Respectfully submitted,
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`KENNEDY KENNEDY & IVES, PC
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`/s/ Joseph P. Kennedy
`Joseph P. Kennedy
`1000 2nd Street NW
`Albuquerque, New Mexico 87102
`(505) 244-1400 / F: (505) 244-1406
`jpk@civilrightslaw.com
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`and
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`DAVIS & NORRIS, LLP*
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`D. Frank Davis
`John E. Norris
`Wesley W. Barnett
`Dargan M. Ware
`The Bradshaw House
`2154 Highland Avenue
`Birmingham, Alabama 35205
`(205) 930-9900 / F: (205) 930-9989
`fdavis@davisnorris.com
`jnorris@davisnorris.com
`wbarnett@davisnorris.com
`dware@davisnorris.com
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`*Pro Hac Vice Applications to be filed
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`Attorneys for Plaintiff
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