Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 1 of 16 PAGEID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
`
`
`SEAN McCLOSKEY, on behalf
`of himself and all others similarly
`situated,
`
`
`
`
`6871 Hubbard Drive
`Huber Heights, Ohio 45424
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`Apple, Inc.,
`
`
`1 Apple Park Way
`Cupertino, California
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`
`
`
`
`Case No. _________________
`
`
`
`
`
`
`
`
`
`Statutory Agent
`
`CT Corporation System
`4400 Easton Commons Way
` Suite 125
`
`
`Columbus, Ohio 43219
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`
`STATEWIDE CLASS ACTION COMPLAINT
`
`Plaintiff Sean McCloskey, on behalf of himself and others similarly situated,
`
`brings this action against defendant Apple, Inc., to recover money lost to illegal
`
`gambling pursuant to Section 3763.02 of the Ohio Revised Code. See also O.R.C.
`
`§§ 2915.01 et seq. Apple promotes, enables, and profits from games downloaded
`
`from its App Store and played by numerous Ohio residents that constitute illegal
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 2 of 16 PAGEID #: 2
`
`gambling under the statutory law and the strong public policy of the state of Ohio.
`
`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 Sean McCloskey is an adult resident citizen of the state of
`
`Ohio, residing in Montgomery County, Ohio.
`
`
`
`2.
`
`Defendant Apple, Inc. is a corporation organized and existing under the
`
`laws of the state of California, with its principal place of business in Cupertino,
`
`California. Apple does business by agent in this state, district, and division.
`
`
`
`3.
`
`This is a class action brought by Ohio 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).
`
`
`
`4.
`
`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
`
`
`
`5.
`
`Apple is the most valuable company in the world, with a market
`
`capitalization exceeding $2 trillion as of mid-2020. It is by far the world’s biggest
`
`technology company, now roughly double the size of both Microsoft Corporation
`
`
`
`2
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 3 of 16 PAGEID #: 3
`
`and Alphabet Inc., the parent company of Google, respectively. Gone are the days
`
`when Steve Jobs’s little company began its quixotic quest to take market share away
`
`from Microsoft’s dominance of the computer software market with its introduction
`
`of the upstart MacIntosh personal computer. Applications for personal computers,
`
`both desktops and laptops, are now a relatively small part of the software market.
`
`Mobile devices are now the name of the game and Apple undisputedly dominates
`
`that lucrative market.
`
`
`
`6.
`
`Apple’s operating system for the iPhone smartphone and the iPad
`
`tablet, known as the iOS, is a rigidly controlled closed system that has the ability to
`
`run numerous applications, or apps, available exclusively through Apple’s App
`
`Store. Apple takes up to 30% of all revenue generated by app sales in the App Store
`
`and in-app purchases made on apps obtained through the App Store.1 Millions of
`
`software developers make applications for the Apple iOS. In order to sell apps in the
`
`App Store, developers must submit their programs to Apple, which then decides
`
`whether the app may be included in the App Store and thus downloaded to iOS
`
`devices.
`
`
`
`7. 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
`
`
`1 Apple takes 30% of all initial app purchases and in-app purchases made during the first year after the customer
`downloads the app. After that, the percentage drops to 15%.
`
`
`
`
`3
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 4 of 16 PAGEID #: 4
`
`to purchase inside the app. Apple 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
`
`Apple ecosystem, such as Western Union, charge for processing such payments.
`
`
`
`8.
`
`The money charged for in-app purchases is paid to Apple. An Apple
`
`customer is required to provide a method of payment, usually a credit or debit card,
`
`for all purchases made in the App Store, including in-app purchases. Apple then has
`
`a contractual obligation to the software developers to remit a portion of the money
`
`Apple receives from the purchases, typically 70%, to the developers. This
`
`contractual arrangement is between Apple and the developers who sell products in
`
`the App Store. As between plaintiff and the class members and Apple, however, all
`
`in-app and other purchases involve the payment of money to Apple, not the
`
`developers.
`
`
`
`9.
`
`This case concerns Apple’s profiting from illegal gambling machine
`
`games that it sells in its App Store. Apple and its chief mobile device software
`
`competitor, Google, both allow 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.
`
`
`
`10. There are numerous such gambling games that Apple makes available
`
`in the App Store, and there is very little variation on how they work. When a
`
`
`
`4
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 5 of 16 PAGEID #: 5
`
`customer downloads 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 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 these games exist. The following table contains
`
`the 200 most popular games.
`
`1 Slotomania™ Vegas Casino Slots
`2
`Jackpot Party - Casino Slots
`3 DoubleDown™- Casino Slots Game
`Playtika Santa Monica, LLCBingo Blitz™ - Bingo
`Games
`4
`5 Cashman Casino Las Vegas Slots
`6 Cash Frenzy™ - Slots Casino
`7 World Series of Poker - WSOP
`8 Heart of Vegas Slots-Casino
`9 POP! Slots ™ Live Vegas Casino
`10 House of Fun™ - Casino Slots
`11 Lightning Link Slots-Casino
`12 Big Fish Casino: Slots & Games
`13 DoubleU Casino: Vegas Slots
`14 Huuuge Casino Slots Vegas 777
`15 VEGAS Slots – Casino Slots
`16 Caesars® Casino: Vegas Slots
`17
`Jackpot Magic Slots™ & Casino
`18 Lotsa Slots: Casino SLOTS
`19 Hit it Rich! Lucky Vegas Slot
`20 my KONAMI - Real Vegas Slots
`21 Bingo Party! Lucky Bingo Games
`22 Zynga Poker - Texas Holdem
`23 Wizard of Oz: Casino Slots
`
`
`
`5
`
`101 Lucky Play Casino Slots Games
`102 Vegas Downtown Slots & Words
`103 Slots-Fortune 777 Classic Slot
`
`104 Gambino Slots Wheel of Fortune
`105 mychoice casino jackpot slots
`106 FoxwoodsONLINE
`107 Gold Fortune Casino
`108 GSN Grand Casino: Slots Games
`109 Take5 Casino - Slot Machines
`110 Bid Wars: Pawn Empire
`111 Slots Master-Vegas Casino Game
`112 Slots of Vegas
`113 Slingo Arcade - Bingo & Slots
`114 PokerStars Play – Texas Holdem
`115 Blazing 7s Casino: Slots Games
`116 Mystic Slots: Fun Casino Games
`117 Lucky City™ - 3D Slot Machine
`118 Governor of Poker 3 - Friends
`119 Casino Roulette: Roulettist
`120 Seminole Social Casino
`121 Blackjack⋅
`122 Tap Poker Social
`123 Slots-Heart of Diamonds Casino
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 6 of 16 PAGEID #: 6
`
`24 Quick Hit Slots - Casino Games
`25
`Jackpot Mania™ - DAFU Casino
`26 Game of Thrones Slots Casino
`27 Gold Fish Casino Slots Games
`28 Cash Tornado Slots - Casino
`29 Scatter Slots - Vegas Casino
`30 Billionaire Casino Slots 777
`31 Double Win Slots Casino Game
`32 Texas Hold'em Poker: Pokerist
`33 Bingo Journey - Classic Bingo
`34 Bingo Bash: Online Bingo Games
`35 Bingo Story Live Bingo Games
`36 Willy Wonka Slots Vegas Casino
`37 Poker Face - Live Texas Holdem
`38 Classic Casino Slots Games
`39 GSN Casino: Slot Machine Games
`40 Bingo Pop - Bingo Games
`41 88 Fortunes Slots Casino Games
`42 MONOPOLY Slots - Casino Games
`43 Vegas Live Slots Casino
`44
`Ignite Classic Slots
`45 Hot Shot Casino - Slots Games
`46 Wynn Slots - Las Vegas Casino
`47 Wild Classic Slots™ Casino
`48 Slots - Classic Vegas Casino
`49 Slot Machines 777 - Slots Era
`50 Club Vegas Slots: Casino 777
`51 Blackjack 21: Blackjackist
`52 Tycoon Casino™ - Vegas Slots
`53 Double Hit Casino: Vegas Slots
`54 Bingo Showdown -> Bingo Live!
`55 Rock N' Cash Casino Slots
`56 Winning Slots Las Vegas Casino
`57 Cash Mania - Casino Slots
`58 Slots GoldenHoYeah-Casino Slot
`59 Huge Win! Classic Slots Game
`60 Slots DoubleDown Fort Knox
`61 Casino Games - Infinity Slots
`62 Backgammon - Lord of the Board
`63 Double Rich！Vegas Casino Slots
`64 Pokerrrr 2- Holdem, OFC, Omaha
`65 Poker Heat: Texas Holdem Poker
`66 Golden Casino - Vegas Slots
`
`
`
`6
`
`124 Triple Win Slots-Vegas Casino
`125 Texas Holdem - Scatter Poker
`126 MONOPOLY Bingo!
`127 San Manuel Slots
`128 Wheel of Fortune Slots
`129 Ultimate Slots: Casino Slots
`130 Lucky Slots: Vegas Casino
`131 Stardust Casino™ Slots - Vegas
`132 Slots of Vegas - Slot Machine
`133 Xtreme Slots
`134 Video Poker Deluxe Casino
`135 Win Vegas Slots Casino: Nascar
`136 Bid Wars: Storage Auctions
`137 Coin Trip
`138 Royal Slot Machine Games
`139 World Poker Tour - PlayWPT
`140 Absolute Bingo! Play Fun Games
`141 Bingo Holiday - BINGO Games
`142 Vegas Slots - Slot Machines!
`143 Solitaire
`144 Video Poker Games
`145 Slots™
`146 Sanh Rong - Game danh bai
`147 Slot Bonanza- 777 Vegas casino
`148 HighRoller Vegas: Casino Slots
`149 Video Poker by Ruby Seven
`150 Slots Craze: Casino Games 2020
`151 VIP Poker - Texas Holdem
`152 Cash Dozer: Lucky Coin Pusher
`153 VIP Deluxe Slot Machine Games
`154 Vegas Slots: Deluxe Casino
`155 Casino Frenzy-Fantastic Slots
`156 Video Poker - Classic Games
`157 Epic Diamond Slots: Casino Fun
`158 Ellen's Road to Riches Slots
`159 Empire City Casino Slots
`160 Diamond Sky: Slots & Lottery
`161 Poker Night in America
`162 Slots - Pharaoh's Way
`163 HOLD'EM OR FOLD'EM
`164 Slingo Adventure
`165 Dragon King Fishing Online
`166 Baba Wild Slots - Vegas Casino
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 7 of 16 PAGEID #: 7
`
`67 Blackjack 21 - HOB
`68 High 5 Casino: Home of Slots
`69 Show Me Vegas Slots Casino App
`70 Texas Poker: Pokerist Pro
`71 Texas Holdem Poker
`72 Billion Cash Slots-Casino Game
`73 Multi-Strike Poker™
`74 Vegas Slots - 7Heart Casino
`75 DoubleDown Classic Slots
`76 Coin Dozer
`77 Mega Hit Poker: Texas Holdem
`78 Hard Rock Social Casino
`79 Bingo！
`80 Viva Slots Vegas Slot Machines
`81 Bingo Frenzy: BINGO Cooking!
`82 Slots Casino - Jackpot Mania
`83 Slots Casino: Vegas Slot Games
`84 Slots Games: Hot Vegas Casino
`85 Magic Vegas Casino
`86 Vegas Casino Slots - Mega Win
`87 SLOTS - Black Diamond Casino
`88 Backgammon Live™ Board Game
`89 The Walking Dead Casino Slots
`90
`Jackpotjoy Slots: Vegas Casino
`91 Old Vegas Classic Slots Casino
`92 FaFaFa™ Gold Slots Casino
`93 Lucky Time Slots™ Vegas Casino
`94 Video Poker Classic - 39 Games
`95 Stars Casino Slots
`96 Clubillion™: casino slots game
`97 Lucky Lottery Scratchers
`98 Bingo Drive: Play & Win Online
`99 Abradoodle Bingo: Fun Bingo!
`100 Cash Fever Slots™-Vegas Casino
`
`167 Royal Slots:Slot Machine Games
`168 Praia Bingo - Bingo Games
`169 Bingo Infinity
`170 Vegas Craps by Pokerist
`171 Real Casino Slots
`172 Bonus of Vegas Slots Casino
`173 Hit 7 Casino : Vegas Slots
`174 Real Slots | Best Bet Casino™
`175 Fantasy Springs Slots | Casino
`176 Live Play Bingo
`177 Blackjack
`178 Teen Patti by Octro
`179 SpinToWin Slots & Sweepstakes
`180 Teen Patti Gold, Poker & Rummy
`181 Texas Poker
`182 Hard Rock Blackjack & Casino
`183 Vegas Nights Slots
`184 Lucky North Casino|Slot Games
`185 Bingo!™
`186 HD Poker: Texas Holdem
`187 Cashmania Slots: Slot Games
`188 Blackjack 21-World Tournament
`189 Blackjack 21: Live Casino game
`190 Super Jackpot Slots Casino
`191 Keno 4 Multi Card
`192 Binion's Casino
`193 Lottery Scratchers
`194 Fishing Casino - Ocean King
`195 Bingo PartyLand: BINGO! & Spin
`196 GamePoint Bingo
`197 American Scratchers Lottery
`198 Ever Rich Slots
`199 Keno Bonus Play
`200 Spider Solitaire: Card Game
`
`
`
`
`
`11. Plaintiff Sean McCloskey downloaded and played several of these
`
`casino-style gambling games. Since July of 2019, he has downloaded multiple
`
`games, including Coin Master, billionaire Casino Slots 777, Cash Frenzy and My-
`
`KONAMI-Real Vegas Slots. Beginning July 23, 2019, he purchased coins through
`
`
`
`7
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 8 of 16 PAGEID #: 8
`
`the Apple App Store so he could continue to play for a chance to win free coins that
`
`would enable him to enjoy the games for a longer period of time. In the six months
`
`prior to the filing of this complaint, he paid $64.90 to Apple for the privilege of
`
`continuing to play the illegal gambling game(s).
`
`
`
`12. 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. Ohio’s gambling statutes prohibit this scheme, noting
`
`that “[v]aluable consideration is deemed to be paid for a chance to win a prize” when
`
`“[a] participant may purchase additional game entries by using points or credits won
`
`as prizes while using the electronic device.” O.R.C. § 2915.01(C)(7). The Ohio
`
`Supreme Court has also made it clear that that paying money in a game for a chance
`
`to win free replays or more playing time constitutes illegal gambling under Ohio
`
`law. See, e.g., Mills-Jennings of Ohio v. Dep’t of Liquor Control, 435 N.E.2d 407
`
`(Ohio 1982) (holding that video poker game that offered free replays was illegal
`
`gambling device).
`
`
`
`13. Apple is not some minor or incidental participant in these illegal
`
`gambling games. It is the principal promoter and facilitator of the illegal activity.
`
`Apple maintains dictatorial control over what apps can be downloaded from the App
`
`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 Apple:
`
`
`
`8
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 9 of 16 PAGEID #: 9
`
`Apple also imposes unreasonable restraints and unlawfully maintains a
`total monopoly in the iOS In-App Payment Processing Market. Among
`the oppressive terms that app developers have to accept, Apple coerces
`all app developers who wish to use its App Store—the only means with
`which to distribute apps to iOS users—to use exclusively Apple’s own
`payment processing platform for all in-app purchases of in-app content.
`
`Complaint for Injunctive Relief, Epic Games v. Apple, Inc., in the United States
`
`District Court for the Northern District of California, August 13, 2020 ¶ 10 (copy
`
`attached). As noted, Apple uses its unfettered control over apps played on iOS to
`
`extract a hefty 30% tax on all purchases made to buy apps or in-app content such as
`
`“coins” to gamble with.
`
`
`
`14. Apple 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. Apple has also restricted gambling games
`
`such as the ones made the basis of this lawsuit so that 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.
`
`
`
`15. Apple’s App Store is not just a venue to buy iOS apps. It is a
`
`promotional tool. Apple 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 App Store is the reason Apple is the most valuable company on the planet.
`
`
`
`9
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 10 of 16 PAGEID #: 10
`
`
`
`16. Thus, Apple enables, permits, promotes, and profits from illegal
`
`gambling.
`
`OHIO LEGAL FRAMEWORK
`
`
`
`17. Ohio 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.
`
` 18. The Ohio criminal laws pertaining to gambling are codified in Chapter
`
`2915 of the Ohio Revised Code. Ohio law prohibits both gambling on “schemes of
`
`chance” and “games of chance.” Each of these is defined in Section 2915.01:
`
`"Scheme of chance" means a slot machine unless authorized under
`Chapter 3772. of the Revised Code, lottery unless authorized under
`Chapter 3770. of the Revised Code, numbers game, pool conducted for
`profit, or other scheme in which a participant gives a valuable
`consideration for a chance to win a prize, but does not include bingo, a
`skill-based amusement machine, or a pool not conducted for profit.
`"Scheme of chance" includes the use of an electronic device to reveal
`the results of a game entry if valuable consideration is paid, directly or
`indirectly, for a chance to win a prize. Valuable consideration is deemed
`to be paid for a chance to win a prize in the following instances:
`
`(7) A participant may purchase additional game entries by using points
`or credits won as prizes while using the electronic device;
`
`O.R.C. § 2915.01(C)(7).
`
`
`(D) "Game of chance" means poker, craps, roulette, or other game in
`which a player gives anything of value in the hope of gain, the outcome
`of which is determined largely by chance, but does not include bingo.
`
`O.R.C. § 2915.01(D)
`
`
`
`10
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 11 of 16 PAGEID #: 11
`
`
`
`19. The statute also defines “gambling device” to include “(3) A deck of
`
`cards, dice, gaming table, roulette wheel, slot machine, or other apparatus designed
`
`for use in connection with a game of chance.” O.R.C. § 2915.01(F)(3).
`
`
`
`20. As already noted, valuable consideration is not limited under Ohio law
`
`to the situation where one gambles in the hopes of winning actual cash money.
`
`Rather, “valuable consideration” specifically includes “additional game entries by
`
`using points or credits won as prizes while using the electronic device. O.R.C.
`
`2915.01(C)(7). 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 for valuable consideration under Ohio law.
`
`
`
`21. Ohio law makes it unlawful for any person to “Establish, promote, or
`
`operate or knowingly engage in conduct that facilitates any game of chance
`
`conducted for profit or any scheme of chance.” O.R.C. 2915.02(A)(2). Apple
`
`promotes such games and knowingly facilitates their existence by allowing them in
`
`the App Store, processing payments to the games, and profiting from this conduct,
`
`all in violation of Ohio law.
`
`
`
`22. Ohio provides a statutory civil cause of action to recover money paid
`
`and lost due to gambling. Section 3763.02 of the Ohio Revised Code provides:
`
`If a person, by playing a game, or by a wager, loses to another, money
`or other thing of value, and pays or delivers it or a part thereof, to the
`winner thereof, such person losing and paying or delivering, within six
`months after such loss and payment or delivery, may sue for and
`
`
`
`11
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 12 of 16 PAGEID #: 12
`
`recover such money or thing of value or part thereof, from the winner
`thereof, with costs of suit.
`
`
`CLASS ALLEGATIONS
`
`
`
`23. Plaintiff seeks to certify and represent a class pursuant to Rule 23(b)(3)
`
`of the Federal Rules of Civil Procedure. The class sought to be certified is:
`
`All Ohio residents who downloaded, played, and paid money for
`additional coins within games from the Apple App 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 six months 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.
`
`23. This class action satisfies the numerosity requirement of Rule 23(a)(1)
`
`
`
`because joinder of all members of the plaintiff class is impracticable. There are
`
`thousands of Ohio residents who are members of the class.
`
`
`
`24.
`
`It also satisfies the commonality requirement of Rule 23(a)(2) because
`
`there are central questions of fact and law that are common to the class. Such
`
`common questions include, at a minimum, (a) whether these virtually identical
`
`gambling games sold through the App Store violate Ohio’s prohibition of illegal
`
`gambling; (b) whether gambling for additional play-time constitutes valuable
`
`consideration under Ohio law; (c) whether Apple participated in gambling through
`
`its facilitation of the sale of in-app purchases through the App Store; and (d) whether
`
`
`
`12
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 13 of 16 PAGEID #: 13
`
`plaintiff and the class members are entitled to recover their money pursuant to
`
`Section 3763.02 of the Ohio Revised Code.
`
`
`
`25. The proposed class satisfies the typicality requirement of Rule 23(a)(3)
`
`because the named plaintiff’s claims are typical of the claims of the class members.
`
`Both plaintiff and the class members lost money in an effort to win additional play-
`
`time on these illegal gambling games.
`
`
`
`26. The named plaintiff will fairly and adequately represent the interests of
`
`the class pursuant to Rule 23(a)(4). Plaintiff has no interests that conflict with the
`
`interests of the class. Furthermore, plaintiff has retained competent and experienced
`
`counsel with decades of experience litigating class cases.
`
`
`
`27. Plaintiff seeks certification of a class pursuant to Rule 23(b)(3), which
`
`allows class treatment of a claim where:
`
`(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 action is superior to other available methods
`for fairly and efficiently adjudicating the controversy. The matters
`pertinent to these findings include:
`
`(A) the class members' interests in individually controlling the
`prosecution or defense of separate actions;
`
`(B) the extent and nature of any litigation concerning the controversy
`already begun by or against class members;
`
`(C) the desirability or undesirability of concentrating the litigation of
`the claims in the particular forum; and
`
`(D) the likely difficulties in managing a class action.
`
`
`
`13
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 14 of 16 PAGEID #: 14
`
`
`28. The common questions of law and fact in this case vastly predominate
`
`
`
`over any individual issues affecting only individual class members. The only
`
`individual issue presented by these class members is the exact amount of money
`
`damages to which each class member is entitled. Such damages issues are routinely
`
`held not to predominate over common questions in cases like this. Indeed, the
`
`individual damages issues will be quickly and accurately determined by examining
`
`Apple’s own records.
`
`
`
`29. Class treatment is by far superior to individual litigation as a fair and
`
`efficient way to adjudicate this controversy. Given the relatively small individual
`
`amounts at issue, it unlikely whether there would be any adjudication at all without
`
`use of the class device. No individual class member would rationally commence and
`
`prosecute a lawsuit where the individual amount in controversy likely would not
`
`exceed the filing fees.
`
`
`
`30. For this reason, none of the class members have any interest in
`
`controlling the prosecution of separate actions.
`
`
`
`31. Likewise, to our knowledge, no class member has already commenced
`
`an action concerning this controversy.
`
`
`
`32.
`
`It would much more desirable to concentrate this case in one action
`
`rather than allow the prosecution of individual actions because, as noted, such
`
`
`
`14
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 15 of 16 PAGEID #: 15
`
`individual actions would likely never be filed because there would be no motivation
`
`for any individual class member to file an individual suit.
`
`
`
`33. We foresee no particular difficulties in managing this case as a class
`
`action because 100% of the necessary information to compensate the individual class
`
`members is contained in Apple’s own records concerning purchases made through
`
`the App Store.
`
`CAUSE OF ACTION
`
`
`
`33. Plaintiff, on his own behalf and on behalf of those similarly situated,
`
`seek recovery of all sums paid through in-app purchases in these games made
`
`through Apple’s App Store pursuant to Section 3763.02 of the Ohio Revised Code.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, the premises considered, plaintiff asks the Court to:
`
`1.
`
`2.
`
`Take jurisdiction of this cause;
`
`Following discovery, certify this case as a class action pursuant to Rule
`
`23(b)(3);
`
`3.
`
`Appoint the undersigned as Class Counsel and the named plaintiff as
`
`class representative;
`
`4.
`
`Enter a final judgment against Apple awarding plaintiff and the class
`
`members a refund of all money paid through the illegal gambling games
`
`described herein;
`
`15
`
`
`
`
`
`
`
`

`

`Case: 3:20-cv-00434-TMR Doc #: 1 Filed: 10/23/20 Page: 16 of 16 PAGEID #: 16
`
`5.
`
`Award Class Counsel reasonable attorneys’ fees and expenses to be
`
`paid out of the judgment in favor of the class;
`
`6.
`
`Award the named plaintiff a reasonable sum of money for his services
`
`in this case on behalf of the class, also to be paid out of the judgment in
`
`favor of the class;
`
`Award interest and costs; and
`
`Award any other relief to which the Court finds plaintiff and the class
`
`
`
`
`
`7.
`
`8.
`
`are entitled.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`s/John E. Breen
`__________________
`JOHN E. BREEN (0015142)
`BREEN LAW, LLC
`7761 Chetwood Close, Ste. 100
`Columbus, Ohio 43054
`(614) 374-3324
`john@breenlegal.com
`
`Trial Counsel for Plaintiff
`
`Counsel seeking Pro Hac Vice
`
`Wesley W. Barnett, Esq.
`Davis & Norris, LLP
`2154 Highland Avenue
`Birmingham, Alabama 35205
`(205) 930-9900
`wbarnett@davisnorris.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`16
`
`