Keller v. Electronic Arts Inc. et al

MOTION to Dismiss THE COMPLAINT PURSUANT TO FED. R. CIV. P. 12

N.D. Cal.July 29, 2009

1 KEKER & VAN NEST LLP ROBERT A. VAN NEST - #84065 2 R. JAMES SLAUGHTER - #192813 R. ADAM LAURSEN - #243780 3 710 Sansome Street San Francisco, CA 94111 - 1704 4 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 5 rvanest(ckv.com rslauclter(ckvn.com 6 alauridsen(ckv.com 7 Attorneys fur Derendant ELECTRONIC ARTS INC. 8 9 10 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 12 SAML MICHAEL KELLER, on behalf of himself and all others similarly situated, 13 14 15 Plaintiff, v. Case No. CV-09-1967-CW ELECTRONIC ARTS INC.'S NOTICE OF MOTION AND MOTION TO DISMISS THE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); MEMORADUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: September 24, 2009 Time: 2:00 p.m. Dept: Couroom 2, 4th Floor Judge: Hon. Claudia Wilken Date Compo Filed: May 5, 2009 444705.05 ELECTRONIC ARTS INC.; NATIONAL 16 COLLEGIATE ATHLETICS ASSOCIATION; COLLEGIATE 17 LICENSING COMPAN, 18 19 20 21 22 23 24 25 26 Defendants. 27 28 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page1 of 30 1 NOTICE OF MOTION AND STATEMENT OF RELIEF SOUGHT 2 PLEASE TAK NOTICE that on September 24,2009 at 2:00 p.m. before the 3 Honorable Claudia Wilken, United States District Court, 1301 Clay Street, Suite 400 S, Oakland, 4 California 94612-5212, Courtoom 2, 4th Floor, defendant Electronic Arts Inc. ("EA") will, and 5 hereby does, move the Cour for an order dismissing the second, third, fourth, fifth, and seventh 6 causes of action iIl the complaint pursuant to Federal Rule of Civil Procedure 12(b )(6). 7 EA moves to dismiss all of Plaintiffs' causes of actions asserted against EA on the 8 following grounds: (1) assuming EA uses Plaintiffs protectable attbutes, the use would be 9 protected by the First Amendment and California Constitution because EA's games are 10 expressive and transformative works; (2) assuming EA uses Plaintiffs protectable attributes, the 11 use would be protected by the First Amendment and California Constitution because ofthe 12 public's strong interest in information about sports and athletes; and (3) Plaintiff has not alleged 13 a recoverable injur. 14 Additionally, EA moves to dismiss: (1) the second cause of action on the grounds that if 15 EA uses Plaintiffs protectable attbutes, the use would be exempt from liability under 16 section 3344(d)'s "public affairs" exemption; (2) the fourh cause of action on the grounds that 17 Plaintiff lacks an underlying tort upon which to base the conspiracy claim; (3) the fifth cause of 18 action on the grounds that Plaintiff lacks an underlying tort claim upon which to base the unfair 19 competition claim; (4) the seventh cause of action on the grounds that no claim for unjust 20 enrchment exists under California law absent independent grounds-not alleged by Plaintiff- 21 for imposing an implied contract or constrctive trust and, even ifthe court recognzes a claim 22 for unjust enrchment under California law, there exists a valid express contract covering the 23 subject matter at issue. 24 For each ofthese reasons, EA respectfully requests that the Court grant this Motion and 25 dismiss Plaintiffs causes of action against EA with prejudice. 26 This Motion is based on this Notice; on the attached Memorandum of Points and 27 Authorities; on the concurrently-filed Request for Judicial Notice and Declarations of Jeremy 28 Strauser and Sean O'Brien with Exhibits A through H; on the concurrently lodged editions of 1 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page2 of 30 444705.05 1 NCAA Football 06 through NCAA Football 09, NCAA March Madness 06 through NCAA March 2 Madness 08, NCAA Basketball 09, PlayStation 2 console, and two controllers; all pleadings, 3 fies, and records in this action; and on such other argument as may be received by this Court at 4 the hearing on this Motion. 5 6 Dated: July 29, 2008 7 8 9 10 KEKER & V AN NEST LLP By: /s/ Robert A. Van Nest ROBERT A. VANNEST Attorneys for Defendant ELECTRONIC ARTS INC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page3 of 30 1 T ABLE OF CONTENTS2 Pa2e(s) 3 MEMORAUM OF POINTS AN AUTHORITIES .................................................................1 INTRODUCTION ...............................................................................................................1 BACKGROUN .................................................................................................................3 ARGUMENT .......................................................................................................................5 4 1. 5 II. 6 III. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IV. 27 28 444705.05 A. The Issues Presented in this Motion Should be Decided at the Pleading Stage. ........................................................................................................................5 1. In Deciding A Rule 1 2(b)( 6) Motion Involving an Expressive Work, the Court May Rely Upon Its Own Examination ofthe Work. ......... ... .... ........... ......... ..... ...... ........... ......... ...... ............ ..... ........ ....... ..5 2. Only Games Released Within the Past 4 Years Are At Issue......................6 B. The First Amendment and the California Constitution Bar All Plaintiff s Claims. .................................................................................................... 7 1. The First Amendment and Californa Constitution Defeat Plaintiffs Misappropriation Claims Because Any Use is Transformative. ............................................................................................ 9 2. The First Amendment and the California Constitution Bar Plaintiffs Claims Because ofthe Public's Strong Interest in Information About Sports and Athletes. .................................................... 12 3. Meritorious Misappropriation Claims Target Advertisements. .................15 C. All of Plaintiffs Claims Fail Because He Has Not Alleged A Recoverable Iniury. ................................ .................. ..... .......... ...... ......................... 16 D. Plaintiffs Californa Statutory Misappropriation Claim is Barred by the Statute's "Public Affairs" Exemption. .............................................................1 7 E. Plaintiffs Civil Conspiracy Claim Fails Because There is No Underl ving Tort. .................................................................................................... 1 9 F. Plaintiffs Section 17200 Fails Because It Lacks a Predicate Violation and Seeks an Unavailable Remedy. ...... ........... ................... .................. ............ .....20 G. Plaintiffs Uniust Enrchment Claim Fails Because There is No Such Claim Under California Law and There Exists an Express Contract Covering the Same Subiect. ............................. ............ ............................ .......... ....20 CONCLUSION ..................................................................................................................22 i EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page4 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 444705.05 TABLE OF AUTHORITIES Pa2e( s) Federal Cases 4 Hour Wireless v. Smith 01 Civ 9133, 2002 U.S. Dist. LEXIS 22680 (S.D.N.Y. Nov. 22, 2002) ...................................21 Abdul-Jabbar v. Gen. Motors Corp. 85 F .3d 407 (9th Cir. 1996)....................................................................................................... 1 5 Abreflo Abreflo v. The Dow Chem. Co. 443 F .3d 676 (9th Cir. 2006) ..... ....... ......... ................................................ ........................ ..........5 Ashcroft v. Iqbal 556 U.S. ---, 129 S.Ct. 1937 (2009).............................................................................2, 5, 16,20 Barnett v. Evans No. C 06-0193 CW (PR), 2009 WL 799402 (N.D. CaL. Mar. 24,2009)...............................5, 16 Bell Atlantic Corp. v. Twomblv 5 50 U.S. 544 (2007).........................................................................................................5, 17, 19 Burnett v. Twentieth Century Fox Film Corp. 491 F. Supp. 2d 962 (C.D. CaL. 2007) .........................................................................................6 Butler v. Tarflet Corp. 323 F. Supp. 2d 1052 (C.D. CaL. 2004) .....................................................................................16 C.B. C. Distribution & Marketinfl, Inc. v.Ma;or Leafle Baseball Advanced Media, L.P., 505 F.3d 818,823 (8th Cir. 2007)..............................................2, 13, 14 Capcom Co., Ltd. v. MKR Group, Inc. No. C 08-0904 RS, 2008 WL 4661479 (N.D. CaL. Oct. 20,2008)..............................................6 Carafano v. Metrosplash.com, Inc. 339 F.3d 1119 (9th Cir. 2003) ..................................................................................................14 CBS Interactive, Inc. v. National Football Leaflue Players Ass 'n, Inc. 2009 WL 1151982 (D. Minn. April 28, 2009).....................................................................13, 14 Cher v. Forum Int'l 692 F.2d 634 (9th Cir. 1982).......................................................................................................9 City of Oakland v. Comcast Corp. No. C 06-5380, 2007 WL 518868 (N.D. CaL. Feb. 14,2007) ...................................................21 Cusano v. Klein 264 F.3 d 936 (9th Cir. 2001) ....................................................................................................... 7 Dalv v. Viacom, Inc. 238 F. Supp. 2d 1118 (N.D.CaL. 2003) ........................................................................................8 E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc. 444 F. Supp. 2d 1012 (C.D. CaL. 2006), aff'd 547 F.3d 1095 (9th Cir. 2008) ............................ ....... ....................... ...................... ........................................... ....... ....8, 11 Goldman v. Standard Ins. Co. 341 F.3d 1023 (9th Cir. 2003) ..... .......................... ...... .... ................................ ........ ................ ..20 Hanni v. Am. Airlines, Inc. 2008 WL 5000237 (N.D. CaL. Nov. 21, 2008) ..........................................................................19 11 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page5 of 30 444705.05 1 In re Silicon Graphics, Inc. Sec. Litifl. 970 F. Supp. 746 (N.D. CaL. 1 997) ..............................................................................................3 2 Interactive Diflital Software Ass 'n v. St. Louis County 329 F.3d 954 (8th Cir. 2003) .......................................................................................................8 3 Kent v. Universal Studios Case No. CV 08-2704 GAF (CD. CaL. Aug. 15.2008) ..............................................................6 MAl Systems Corp. v. UIPS 856 F. Supp. 538 (N.D. CaL. 1994) ............. ....... ...... ........... ....... ....... ...................... ................... 1 6 6 MGIC Indem. Corp. v. Weisman 803 F .2d 500 (9th Cir. 1986).. ........... .......... ............................................ ........... ....... ........... .......5 7 Midler v. Ford Motor Co. 849 F .2d 460 (9th Cir. 1988)..................................................................................................... I 5 Motschenbacher v. RJ Reynolds Tobacco Co. 498 F .2d 821 (9th Cir. 1974)..................................................................................................... 1 5 10 New Kids on the Blockv. News America Pub., Inc.971 F.2d 302 (9th Cir. 1992) .....................................................................................................1 7 Newcombe v. Adolf Coors Co. 157 F .3d 686 (9th Cir. 1998) ..................................................................................................... 1 5 4 5 8 9 11 12 Parrino v. FHP Inc., 146 F.3d 699 (9th Cir. 1998) ...................................................................................................5,6 Perfect 10, Inc. v. CCBil, LLC 488 F.3d 1102 (9th Cir. 2007) ...................................................................................................14 ROflers v. Grimaldi 875 F.2d 994 (2d Cir. 1989) ...................................................................................................... 1 5 13 14 15 16 Romantics v. Activision Publ 'fl, Inc. 574 F. Supp. 2d 758 (E.D. Mich. 2008)...........................................................................8, 11, 15 17 Roots Readv Made Garments v. Gap Inc. No. C 07-03363 CRB, 2008 WL 239254 (N.D. CaL. Jan. 28, 2008) .........................................21 Thomas v. Walt Disnev Co. No. C-07-4392 CW, 2008 WL 425647 (N.D. CaL. Feb. 14,2008)..............................................6 Va. State Bd. ofPharmacv v. Va. Citizens Consumer Counsel, Inc. 425 U.S. 748 (1976) ............ .............. ......... .......... ..... ........................... .......... ............................ 1 5 Video Software Dealers Ass 'n v. Schwarzeneflfler 556 F. 3d 950 (9th Cir. 2009) ...................................................................................................... 8 Wendt v. Host Intl, Inc. 125 F .3d 806 (9th Cir. 1997)..................................................................................................... 1 5 18 19 20 21 22 23 24 25 26 27 28 White v. Samsunfl Elecs. Am., Inc. 971 F.2d 1395 (9th Cir. 1992) ................................................................................................... 1 5 Woodrum v. Woodward County, Oklo 866 F.2d 1121 (9th Cir. 1989) ...................................................................................................19 Yeafler V. Bowlin Case No. 2:08-cv-00l02 WBS JFM, 2008 WL 3289481 (E.D. CaL. Aug. 6, 2008) ........................................................................................................................................ 7 ii EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page6 of 30 444705.05 1 State Cases 2 Alch v. Superior Court122 CaL.App.4th 339 (2004) .......................... ......................................................... .................. .20 3 Applied Equip. Corp. v. Litton Saudi Arabia Ltd. 7 CaL. 4th 503 (1994)......... ..................... ..................... ............................................ ............ 1 6, 19 4 Bovle v. Anderson Fire Fiflhters Ass 'n Local 1262, AFL-CIO 497 N.E. 2d 1073 (Ind. Ct. App. 1 986) .....................................................................................1 9 Comedy III Prods., Inc. v. Gary Saderup, Inc. 25 CaL. 4th 387 (2001) ............ ......... ..... ........ ........... .................... ............ ......................... ...........9 7 Dav v. AT&T Corp.63 CaL. App. 4th 325 (1998) ...................................................................................................... 1 6 8 Dora v. Frontline Video Inc. 15 CaL. App. 4th 536 (1993) ...................................................................................................... 1 8 Gionfriddo v. Ma;or Leafle Baseball 94 CaL. App. 4th 400 (2001) ................................................................................2, 12, 13, 14, 18 Gufllielmi v. Spellnfl-Goldberfl Prods. 25 CaL. 3d 860 (1979) .... ........ ......... ..... ......... ..................... ..... ........................ ......... ..... .......... .6, 9 5 6 9 10 11 12 Hebrew Academv of San Francisco v. Goldman42 CaL. 4th 883 (2007) ....... .............. ..... ............. ........ .................................... ......... ........ ....... ...... 7 13 Indianapolis Horse Patrol, Inc. v. Ward 247 Ind. 519 (1966) ................................................................................................................... 1 9 14 Kirbv v. Sefla of America 144 CaL. App. 4th 47 (2006) ..................................................................................1, 8, 10, 12,20 Korea Supply Co. v. Lockheed Martin Corp. 29 CaL. 4th 1 134........ ................ ................... ............................. ..................... ....... .......... .......... .20 15 16 17 Lance Camper Mff. Corp. v. Republic Indem. Co.44 CaL. App. 4th 194 (1996) ......................................................................................................2 1 18 Lonfl v. Walt Disnev Co. 116 CaL. App. 4th 868 (2004) ......................................................................................................7 19 McKell v. Washinflton Mut., Inc. 142 CaL. App. 4th 1457 (2006) ..................................................................................................2 120 Montana v. San Jose Mercury News 21 34 CaL. App. 4th 790 (1995) ..........................................................................................14, 15, 18 22 Pafle v. Bakersfield Uniform & Towel Supply Co.239 CaL. App. 2d 762 (1966) .....................................................................................................1 7 23 Peterson v. Cellco P'ship 164 CaL. App. 4th 1583 (2008) .................................................................................................. 1 6 24 Picton v. Anderson Union Hiflh Sch. Dist. 50 CaL. App. 4th 726 (1996) ......................................................................................................1 7 25 26 27 Shively v. Bozanich 31 CaL. 4th 1230 (2003) ..................................................................................... ..........................7 Winter v. DC Comics 30 CaL. 4th 881 (2003) .............................................................................................1, 6, 9,10, 12 28 iv EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page7 of 30 444705.05 1 2 3 4 5 6 7 8 9 10 11 12 13 Federal Statutes 47 U.S.C. § 230( c)( 1) ........................... ........ ............ ..... ............ ............ ......................... ................14 Communications Decency Act of 1996 ("CD A") ........... ....................... ..... .................................. 14 State Statutes CaL. Bus. & Prof. Code § 1 7200 ...................................................................................... 1, 5, 16,20 CaL. Bus. & Prof. Code § 1 7204 ....................................................................................................1 6 CaL. Bus. & Prof. Code § 1 7208 ......................................................................................................7 CaL. Bus. & Prof. Code § 1 8895.2 ................................................................................................. 1 7 CaL. Bus. & Prof. Code § 18897.6 .................................................................................................17 CaL. Bus. & Prof. Code § 18897.93 ................... ................................. ...... ........................... ......... 1 7 CaL. Civ. Code § 3344............................................................................................................. ...5, 17 CaL. Civ. Code § 3344( a) .......................... ..... ................................................................................ 14 CaL. Civ. Code § 3344(d) ...............................................................................................1,12, 17, 18 CaL. Civ. Code § 3425.3....................... .............. ...... .................................................. ......................7 Federal Rules Federal Rule of Civil Procedure 12(b)(6) ............................................................................1,5,6,8 Treatises 14 RESTATEMENT (THIR) OF UNAI COMPETITION § 47, comment................................15 Constitutional Provisions 15 CaL. Const., ar. 1, § 2 ........ ..... ...... ......... ........ ......................................... ...................................... ...8 16 United States Constitution, First Amendment.. ......... ........................ ..... .............. ....... .......... passim 17 18 19 20 21 22 23 24 25 26 27 28 v EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page8 of 30 1 2 MEMORADUM OF POINTS AND AUTHORITIES I. INTRODUCTION 3 "Video games are expressive works entitled to as much First Amendment protection as 4 the most profound literature." Kirby v. Sega of America, 144 CaL. App. 4th 47,58 (2006). ! 5 Recognizing that publicity rights claims have the potential to stifle free expression, cours 6 regularly dismiss misappropriation claims that infrnge upon this constitutional protection. That 7 is the case here. Because Plaintiff Sam Keller's claims would impermissibly intrude upon 8 Electronic Ars Inc.'s ("EA") First Amendment right to create, develop, and publish video 9 games, they must be dismissed. 1 0 Plaintiff, a former college football player, alleges-on behalf of himself and a purorted 11 class of college football and basketball players-that EA improperly used college athletes' 12 likenesses in EA's NCAA Football and NCAA Basketball / NCAA March Madness video games. i 13 But even assuming these games include some protectable attribute of Plaintiff, under two distinct 14 lines of authority, the alleged use of such information is protected by the First Amendment and 15 the California Constitution. 16 First, an expressive work that incorporates an individual's likeness is constitutionally 17 protected against a right of publicity claim if the use is "transformative." Winter v. DC Comics, 18 30 CaL. 4th 881, 888 (2003). The relevant inquiry is "whether the celebrity likeness is one ofthe 19 'raw materials' from which an original work is synthesized," in which case it is protected, "or 20 whether the depiction... ofthe celebrity is the very sum and substance ofthe work in question." 21 Id. A review of Plaintiffs complaint and the accompanying editions of NCAA Football and 22 NCAA Basketball / NCAA March Madness demonstrate that the games are much more than a 23 "mere celebrity likeness(J." As such, the games are transformative and protected by the First 24 Amendment. 25 26 27 28 Plaintiff alleges seven causes of action: (1) Indiana statutory right of publicity against NCAA; (2) California statutory right of publicity claim against EA; (3) California common law right of publicity against EA; (4) civil conspiracy against all defendants; (5) California Business & Profession Code section 17200 against EA; (6) breach of contract against NCAA; and (7) unjust enrchment against EA and CLC. EA moves to dismiss all the claims asserted against it and understands that NCAA and CLC are moving to dismiss the claims asserted against them. 1 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW 444705.05 Case4:09-cv-01967-CW Document34 Filed07/29/09 Page9 of 30 444705.05 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Second, and separately, courts repeatedly have held that the public's paricular interest in information about sports and athletes "far outweighs" the athletes' rights of publicity. Gionfriddo v. Major League Baseball, 94 CaL. App. 4th 400,415 (2001). Information such as athletes' names, likenesses, performance statistics, and biographical information-just the type of information Plaintiff claims EA isn't allowed to incorporate in its works-"command(s) a substantial public interest" and therefore "is a form of expression due substantial constitutional protection." Id. This is true even where such information is used in works such as sports websites and fan-driven "fantasy" baseball games, which are far less expressive and transformative than the video games at issue here. See id.; CB. C Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818,823 (8th Cir. 2007). Aside from the paramount First Amendment issues at stake, Plaintiffs complaint must be dismissed for the fuher separate and independent reason that it fails to allege any facts demonstrating that he was injured, a necessar element of each claim. The Supreme Court has recently affirmed that a plaintiff may not rely on conclusory allegations or bare recitations of the elements of his claims. See Ashcroft v. Iqbal, 556 U.S. ---, 129 S.Ct. 1937, 1949-50 (2009). Because Plaintiff alleges nothing more than empty conclusions regarding injury, all of his claims fail and should be dismissed. Plaintiffs individual causes of action fail for numerous additional reasons. Plaintiffs second cause of action alleging violation of the California statutory right of publicity is bared by the statute's "public affairs" exception. Courts have held that sports and information about athletes fall within the "public affairs" category, thereby barrng statutory right-of-publicity claims involving such matters. Plaintiff s allegations regarding the popularity of college sports and EA's games demonstrate that his claims are barred by this defense. See CompL. irir 4-6. Plaintiffs fourth cause of action for civil conspiracy claim fails because there is no underlying tort on which to base it, and because it is not supported by any factual allegations at all, but mere legal conclusions "on information and belief." Plaintiffs fifth cause of action for unfair competition is entirely derivative and thus fails for the same reasons as his other claims. Plaintiffs seventh cause of action for unjust enrchment is not recognized under California law 2 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page10 of 30 1 and is bared by the existence of a contract covering the same subject matter. 2 For all these reasons, and others explained in more detail below, the Court should dismiss 3 all of the claims asserted against EA in the complaint, with prejudice. 4 II. BACKGROUND2 5 EA is a leading developer and publisher of computer and video games, including the 6 NCAA Football franchise and the NCAA Basketball / NCAA March Madness franchise. Each 7 annual edition of NCAA Football is released no later than July of the previous year; for example, 8 NCAA Football 06 was released in July 2005, and NCAA Football 09 was released in July 2008. 9 Electronic Ar Inc.'s Request for Judicial Notice ("RJ") ir 4. Likewise, each annual edition of 10 NCAA Basketball (formerly titled NCAA March Madness until a switch in the game's name in 11 2008) is released no later than December of the previous year (with the exception of NCAA 12 March Madness 07, released in Januar 2007); again, for example, NCAA March Madness 06 13 was released in October 2005, and NCAA Basketball 09 was released in November 2008. /d. 14 These two game franchises simulate the excitement and challenge of college football and 15 college basketball by combining advanced computer and softare engineering with artistic 16 expression. As a review of the games demonstrates, the virtual world of the games is comprised 17 of originally designed locations, players, coaches, fans and other game elements. /d. irir 1 - 3. 18 Players manipulate these elements through game controls, allowing a fully interactive, real-time 19 college sports experience, complete with television-quality images and realistic sounds. /d. 20 Players can match more than a hundred teams against each other, control team strategy decisions 21 and individual athletes' movements, and tinker with such subtle details as the weather and crowd 22 noise. Id. The interactive environment also allows players to control teams for entire seasons or 23 manage the college program over a series of years, including "recruiting" in-game players from 24 high school and monitoring their academic performance off the field or court. Id. 25 26 27 2 For the purposes of this motion only, EA accepts as true the Complaint's factual allegations, except that EA does not accept the truth of legal conclusions or allegations that are belied by information of which this Court may take judicial notice. See In re Silicon Graphics, Inc. Sec. Litig., 970 F. Supp. 746, 751-52 (N.D. CaL. 1997); EA's Request for Judicial Notice ("RJ") filed herewith. 28 3 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW 444705.05 Case4:09-cv-01967-CW Document34 Filed07/29/09 Page11 of 30 444705.05 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As a review of the games demonstrates, these games are constructed from an aray of graphics, sounds and information. A collection of characteristics such as height, weight, agility and strength is assigned to a virtal player, represented in the game by an original graphic created by EA. Id. These characteristics are displayed visually on certain games screens, but also used by the game as parameters for that virtal player's performance. Id. The virtual player is assigned to a team, clothed in a jersey and given a number-game elements all properly licensed from the NCAA and its licensing arm, the Collegiate Licensing Company ("CLC"). CompL. ir 11 ("pursuant to a license with the CLC, the NCAA's licensing company, Electronic Ars replicates team logos, uniforms, mascots, and even member school stadiums with almost photographic realism"). Game players can customize virtal players and teams based on their own preferences or accept the game's default settings. RJ irir 1-3. EA's games allow competition against opponents controlled by the game itself, a person connected to the same system, or a person connected over the Internet. Id. On May 5, 2009, Plaintiff Samuel Keller commenced this action in which he alleges that EA, the NCAA and the CLC improperly use the "likenesses" of college athletes in the NCAA Football and NCAA Basketball I NCAA March Madness games. CompL. ir 1. Plaintiff is a former college football player. Id. ir 3. From 2003 to 2005, he played quarerback for Arzona State University. Id. irir 43-45. In 2006, he transferred to the University of Nebraska, but sat out the season under NCAA rules regulating player transfers. Id. ir 46. Plaintiffthen played quarterback for Nebraska in 2007, which marked the end of his collegiate football career. See id. ir 47. As a condition of his eligibility for collegiate athletics, he agreed to be bound by the NCAA's amateurism rules. Id. irir 13-14. Plaintiff concedes that the games themselves, as sold by EA, do not include players' names or actual pictures. Id. ir 34 (EA "omits... the real-life player's name on the jersey of his electronic equivalent."); id. ir 2 (purported class is NCAA athletes whose "likenesses and distinct appearances," not pictues, allegedly were used). Nevertheless, Plaintiff has sued, on behalf of himself and a purported class of college athletes, alleging the misuse of their "names and likenesses." Id. ir 72. Keller asserts five causes of action against EA: (1) violation of his 4 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page12 of 30 1 statutory rights of publicity under California Civil Code section 3344; (2) violation of his 2 California common law rights of publicity; (3) civil conspiracy; (4) violation of California 3 Business and Professions Code section 17200; and (5) unjust enrchment. EA now moves to 4 dismiss all of the causes of action asserted against it. 5 6 A. 7 8 III. ARGUMENT The Issues Presented in this Motion Should be Decided at the Pleadin2 Sta2e. 1. In Deciding A Rule 12(b)(6) Motion Involving an Expressive Work, the Court May Rely Upon Its Own Examination of the Work. 9 A motion to dismiss under Rule 12(b)(6) tests the legal suffciency of the plaintiffs 10 claims. Dismissal is warranted if no relief could be granted under any set of facts that could be 11 proved consistent with the allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 12 (2007). A plaintiff must do more than merely raise the possibility that some set of facts might 13 support recovery; he must set forth factual allegations that "raise a right to relief above the 14 speculative leveL." Id. at 555. The Supreme Court recently affrmed these requirements, 15 explaining the two principles underlying Twombly. "First, the tenet that a court must accept as 16 tre all ofthe allegations contained in a complaint is inapplicable to legal conclusions. . . . 17 Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." 18 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). 19 When ruling on a motion to dismiss, a court may consider not only the plaintiffs 20 allegations, but also material subject to judicial notice. MGIC Indem. Corp. v. Weisman, 803 21 F.2d 500, 504 (9th Cir. 1986). A cour may consider "document(s) the authenticity of which 22 (are) not contested, and upon which plaintiffs complaint necessarily relies(,)" even if those 23 materials are not attached to the complaint. Parrino v. FHP Inc., 146 F.3d 699, 706 (9th Cir. 24 1998), superseded by statute on other grounds, Abrego Abrego v. The Dow Chem. Co., 443 F.3d 25 676,681 (9th Cir. 2006); see also Barnett v. Evans, No. C 06-0193 CW (PR), 2009 WL 799402, 26 at *4 (N.D. Cal. Mar. 24, 2009). 27 Consistent with these principles, courts deciding Rule 12(b)(6) motions regularly have 28 examined expressive works, even if not attached to the complaint, to determine whether they are 5 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES . CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page13 of 30 actionable. For instance, in Capcom Co., Ltd. v. MKR Group, Inc., No. C 08-0904 RS, 2008 WL 2 4661479 (N.D. Cal. Oct. 20,2008), the cour reviewed the allegedly infrnging video game in 3 determining that the First Amendment bared plaintiff s Copyrght and Lanham Act claims, and 4 granted the video game developer's motion to dismiss. 1d. at *13-14; see also Thomas v. Walt 5 Disney Co., No. C-07-4392 CW, 2008 WL 425647, at *6 (N.D. Cal. Feb. 14,2008) (dismissing 6 plaintiffs copyrght claim with prejudice based upon an examination of the disputed movie); 7 Kent v. Universal Studios, Case No. CV 08-2704 GAF (SHx) (CD. Cal. Aug. 15.2008) 8 (granting Rule 12(b)(6) motion on First Amendment grounds after reviewing defendant's film) 9 (attached at Lauridsen Decl., Exh. A); Burnett v. Twentieth Century Fox Film Corp., 491 F. 10 Supp. 2d 962, 973 (C.D. Cal. 2007) (granting Rule 12(b)(6) motion after reviewing defendant's 11 television program to dismiss plaintiffs misappropriation claim); cf Guglielmi v. Spellng- 12 Goldberg Prod.s., 25 CaL. 3d 860,872 (1979) (demurrer properly sustained based on the First 13 Amendment). 14 Here, Plaintiffs claims all arse from the alleged use of his and other college players' 15 "likeness" in EA's NCAA Football and NCAA Basketball I NCAA March Madness games. See, 16 e.g., Compl. irir 1, 11-12. Thus, under Parrino and other authority, the Cour can and should 17 consider the contents ofthe games in deciding this motion. See RJ ir~ 1 -3. 18 By doing so, the Cour may resolve this lawsuit at the pleading stage, which is especially 19 appropriate because Plaintiffs claims target an expressive work. The California Supreme Cour 20 explained this point simply: "because unnecessarily protracted litigation would have a chiling 21 effect upon the exercise of First Amendment rights, speedy resolution of cases involving free 22 speech is desirable." Winter, 30 Cal. 4th at 891. To that end, the California Supreme Court 23 noted that misappropriation and related claims "can often (be) resolver d) ... as a matter of law 24 simply by reviewing the (defendant's) work in question...." Id. Critically, the Cour instructed 25 that such claims should be decided at the pleading stage where the works are properly before the 26 court. Id. This is precisely the case here. 27 28 2. Only Games Released Within the Past 4 Years Are At Issue. The Complaint does not identify which annual editions NCAA Football and NCAA 444705.05 6 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page14 of 30 1 Basketball / NCAA March Madness allegedly misappropriated Plaintiffs likeness. Nonetheless, 2 under the single publication rule, Plaintiff canot state a claim arising from any edition of the 3 games released before May 5, 2005, four years before he filed this action. 4 Under the single-publication rule codified in Civil Code Section 3425.3, any tort cause of 5 action arsing from a mass publication accrues on the date that the work is published, regardless 6 of when the plaintiff first discovered the allegedly wrongful conduct. See Shively v. Bozanich, 7 31 Cal. 4th 1230, 1242-43 (2003); Hebrew Academy of San Francisco v. Goldman, 42 Cal. 4th 8 883, 887 (2007). The rule applies to statutory and common law misappropriation claims and 9 ancilary state law claims. See, e.g., Cusano v. Klein, 264 F.3d 936, 950 (9th Cir. 2001); Yeager 10 v. Bowlin, Case No. 2:08-cv-00l02 WBS JFM, 2008 WL 3289481, at *4-5 (E.D. Cal. Aug. 6, 11 2008); Long v. Walt Disney Co., 116 Cal. App. 4th 868,873,874 (2004) 12 Here, Plaintiff acknowledges that his claims arse from the mass media publication of 13 each game. Specifically, Plaintiff alleges that EA publishes the NCAA Football and NCAA 14 Basketball I NCAA March Madness franchises at issue. Compl. ir 11. Accordingly, Plaintiffs 15 claims arising from each game edition accrued on that edition's release date. Because the 16 longest statute of limitations applicable to Plaintiffs California claims is four years, see Cal. 17 Bus. & Prof. Code § 17208, the only versions of the games at issue are those released after 18 May 5, 2005, four years before he filed this action. Those games are NCAA Football 06, NCAA 19 Football 07, NCAA Football 08, NCAA Football 09; and NCAA March Madness 06, NCAA 20 March Madness 07, NCAA March Madness 08 and NCAA Basketball 09. See RJ ir 4. In 21 connection with EA's accompanying Request for Judicial Notice, EA has provided the Court 22 with a copy of each version of the games at issue for play on the PlayStation 2 console, a 23 PlayStation 2 game console, and controllers. 24 B. The First Amendment and the California Constitution Bar All Plaintiff's Claims. 25 Even assuming for purposes of this motion that a virtual player in NCAA Football or 26 NCAA Basketball / NCAA March Madness embodies some protectable attribute of Plaintiff, his 27 claims are barred, in their entirety, by the First Amendment and the California Constitution. 28 It is settled that video games are constitutionally protected works under the First 7 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page15 of 30 1 Amendment and California Constitution, aricle 1, section 2. See, e.g., Video Software Dealers 2 Ass 'n v. Schwarzenegger, 556 F. 3d 950, 958 (9th Cir. 2009) ("video games are a form of 3 expression protected by the First Amendment"); Kirby v. Sega of America, Inc., 144 Cal. App. 44th 47,58 (2006) ("(v)ideo games are expressive works entitled to as much First Amendment , ¡, 5 protection as the most profound literature"); Interactive Digital Software Ass 'n v. St. Louis 'j 6 County, 329 F.3d 954, 957 (8th Cir. 2003) ("(i)fthe first amendment is versatile enough to 7 'shield (the) painting of Jackson Pollock, music of Arold Schoenberg, or Jabberwocky verse of 8 Lewis Caroll, '" there is "no reason why the pictures, graphic design, concept art, sounds, music, 9 stories and narrative present in video games are not entitled to a similar protection") (citations 1 0 omitted). 11 The First Amendment's protection is not limited to select games with complex story 12 lines, scripts, and dialogue. Romantics v. Activision Publ'g, Inc., 574 F. Supp. 2d 758, 765 (E.D. 13 Mich. 2008). Instead, the critical issue is whether the games have independent creative elements. 14 Id. In Romantics, for instance, the cour considered whether Guitar Hero-which allows players 15 to pretend they are in a rock band-was entitled to First Amendment protection. /d at 766. The 16 Cour easily concluded that the game was an expressive work because it "allow( ed) players to 17 customize their game play experience, contain( ed) large amounts of original artork, and 18 require(d) complex synchronization so that the audio and visual elements of the (g)ame line up 19 with a player's manipulation ofthe controller." Id.; see also E.S.S. Entm 't 2000, Inc. v. Rock 20 Star Videos, Inc., 444 F. Supp. 2d 1012, 1039 (CD. Cal. 2006), aff'd 547 F.3d 1095 (9th Cir. 21 2008) (holding that video game that "features three virtal cities, each of which contains 22 hundreds of interactive locations created by animated graphics(,) incorporates a narrative, and 23 offers an aray of musical soundtracks . . . clearly qualifies as an 'artistic work' entitled to First 24 Amendment protection"). See also Daly v. Viacom, Inc., 238 F. Supp. 2d 1118, 1123 (N.D.Cal. 25 2003) (granting Rule 12(b)(6) motion on misappropriation claims because television program 26 that allegedly used plaintiff s photograph and likeness was expressive work protected by First 27 Amendment). 28 Under two separate and independent lines of authority, Plaintiff s claims are barred by 8 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page16 of 30 1 the First Amendment and the California Constitution. 2 3 1. The First Amendment and California Constitution Defeat Plaintiff's Misappropriation Claims Because Any Use is Transformative. 4 The California Supreme Court has cautioned that "(t)he right of publicity has a potential 5 for frstrating" constitutionally protected expression. Comedy III Prods., Inc. v. Gary Saderup, 6 Inc., 25 CaL. 4th 387, 397 (2001) (internal quotations omitted). To protect expressive works, the 7 Court "has subjected the 'right of publicity' under California law to a narrowing interpretation 8 which accords with First Amendment values." Cher v. Forum Int 'I, 692 F.2d 634, 638 (9th Cir. 9 1982). In Guglielmi, Justice Bird emphasized that these protections apply to all expressive 10 works, including "entertainment," "works of fiction," "distracting tales for amusement," and 11 "motion picture(s)." 25 Cal. 3d at 867-868 (Bird, J. concurrng) (affirming dismissal of right of 12 publicity claim that challenged inclusion of a person's name and likeness in a motion picture). 13 Of particular note here, the California Supreme Court has made clear that the "creative 14 appropriation" of the images of athletes and other celebrities is an important avenue of creative 15 expression: 16 Entertainment and sports celebrities are the leading players in our Public Drama. We tell tales, both tall and cautionary, about them. We monitor their comings and 17 goings, their missteps and hearbreaks. We copy their mannerisms, their styles, their modes of conversation and of consumption. . .. Their images are thus 18 important expressive and communicative resources: the peculiar, yet familiar idiom in which we conduct a fair portion of our cultural business and everyday 19 conversation. 20 Comedy III, 25 Cal. 4th at 397 (citations omitted). 21 With this in mind, the California Supreme Court repeatedly has held that as long as an 22 expressive work is "transformative," the protection of free speech under the U.S. and California 23 Constitutions "outweighs whatever interest the state may have in enforcing the right of 24 publicity." Comedy 111,25 Cal. 4th 405. In determining whether a work is "transformative," the 25 inquiry "is whether the celebrity likeness is one of the 'raw materials' from which an original 26 work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and 27 substance ofthe work in question." Id. at 406; accord Winter, 30 Cal. 4th at 888. "(I)n other 28 words," a court must evaluate whether the work "containing the celebrity's image is so 9 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page17 of 30 1 transformed that it has become primarly the defendant's own expression rather than the 2 celebrity's likeness." /d. 3 Critically, the focus is not whether the plaintiffs likeness within the work has been 4 transformed physically, but whether the work as a whole is transformative-i.e., whether it 5 "contain(s) significant creative elements that transform (it) into something more than mere 6 celebrity likenesses." Winter, 30 Cal. 4th at 881. To underscore the breadth ofthis protection, 7 the California Supreme Court in Winter pointed out that transformative works "can take many 8 forms, from factual reporting to fictionalized portrayal, from heavyhanded lampooning to subtle 9 social criticism." /d. Turning to the defendants' comic books, which featured supporting 10 characters who were "less than subtle evocations" of the plaintiffs, the Winter Court declared 11 that "(a)pplication ofthe test to this case is not difficult." Id. at 890. Because the characters 12 based on the plaintiffs were "merely par of the raw materials from which the comic books were 13 synthesized" and were part of "a larger story, which is itself quite expressive," the Court held 14 that First Amendment defeated the plaintiffs' misappropriation claims. Id. (emphasis added). 15 Three years later, a California Cour of Appeal applied the "transformative" test to hold 16 that a video game was protected expression, barng the plaintiffs misappropriation claim. 1 7 Kirby, 144 Cal. App. 4th at 50. There, a singer claimed that the defendant misappropriated her 18 likeness to create a character in a video game, and asserted claims for deprivation of statutory 19 and common law rights of publicity, violation of the Lanam Act, unfair competition, 20 interference with prospective business advantage, and unjust enrchment. /d at 53. While the 21 court accepted that the character's facial features, clothing, and hair style were reminiscent of the 22 plaintiff, the court emphasized that she was only one element of a complex video game. Id. at 23 56. Because these elements ofthe plaintiffs persona were only a part of the raw material from 24 which the game was synthesized, and were not the game's "very sum and substance," the cour 25 had no diffculty concluding that the defendant's use ofthe plaintiffs persona was 26 transformative, and thus protected by the First Amendment "and the even greater speech 27 protections afforded by the California Constitution." Id. at 57. All of the plaintiffs claims, 28 therefore, failed as a matter of law. ld. at 61. 10 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page18 of 30 1 The same is true here. EA's NCAA Football and NCAA Basketball / NCAA March 2 Madness games have all the elements-and more-that the cours in Winter, Kirby, E.S.S., and 3 Romantics found to be expressive and transformative. As a review of the games demonstrates, 4 these works are extraordinarly complex feats of computer engineering combined with aristic 5 expression, comprised of originally designed virtal locations, players, coaches, fans and other 6 game elements. See RJ irir 1 - 3. The games feature original graphics, videos, sound, music and 7 game scenaros, all keyed to the players' manipulation of the game controls and other input. Id. 8 These elements are synchronized to deliver television-quality images and realistic sounds, such 9 as the crunch of football pads, the swish of basketball nets, licensed fight songs for many of the 10 college teams, and play-by-play commentary describing the action. /d. Players can match more 11 than a hundred teams against each other, control team strategy decisions and individual athlete's 12 movements in real time, and tinker with such subtle details as the weather and crowd noise. Id. 13 Game players can take control of a team as it exists in EA's games or customize it based on their 14 own preferences, altering the characteristics of individual players. Id. The interactive 15 environment extends beyond single games, allowing players to control teams for entire seasons 16 or manage the college program over a series of years, including recruiting virtal players from 17 high school and monitoring their academic performance offthe field or court. Id. EA's games 18 allow competition against opponents controlled by the game itself, a person connected to the 19 same system, or a person connected over the Internet. Id. As the above game content and 20 features clearly demonstrate, the creativity and complexity of NCAA Football and NCAA 21 Basketball / NCAA March Madness far exceeds that of other works found to be transformative. 22 Moreover, the information about which Plaintiff complains represents only a small par 23 of the many raw materials that make up the games. Characteristics such as height, weight, 24 agility and strength are assigned to a virtual player, represented in the game by an original 25 graphic created by EA. Id. As a review ofthe games demonstrates, the player's characteristics 26 are displayed visually on certain games screens, but also used by the game as parameters for that 27 virtual player's performance. 1d. The player is assigned to a team, clothed in ajersey and given 28 a number-game elements Plaintiff admits are all properly licensed from the NCAA and CLC. 11 444705.05 EA'S MOTION TO DISMISS COMPLAIT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page19 of 30 1 Compl. ir 11. The virtual player can be used in a single game simulation or in the more robust 2 "Dynasty" and "Campus Legend" game modes. RJN irir 1-3. In the latter two game modes, the 3 virtal player's characteristics evolve over multiple games and seasons simulated by EA's 4 advanced programing. Id. Virtual players grow stronger, pass more accurately, rebound 5 better, or improve their GP As based upon choices made by the game player. /d. 6 Consequently, like the comic books in Winter and the video game in Kirby, NCAA 7 Football and NCAA Basketball I NCAA March Madness are expressive, transformative works 8 protected by the First Amendment and California Constitution. Therefore, Plaintiff s 9 misappropriation claims fail as a matter oflaw. 10 11 2. The First Amendment and the California Constitution Bar Plaintiff's Claims Because of the Public's Strong Interest in Information About Sports and Athletes. :-" 12 Separate from the "transformative" test, courts repeatedly have held that the public's 1 3 interest in information about sports and athletes affords full First Amendment protection to a 14 work that includes information about athletes-including their names, statistics and biographical 1 5 information (exactly the information Plaintiff complains about here )-and bars misappropriation 16 claims based on such use. Under this second line of authority that has developed independently 17 ofthe "transformative" test, Plaintiffs claims are bared by the First Amendment and the 1 8 California Constitution.3 19 In Gionfriddo v. Major League Baseball, 94 CaL. App. 4th 400 (2001), the defendant 20 Major League Baseball used a wide array of material in printed programs, videos and its website 21 without permission from the plaintiff baseball players, including "names of players included on 22 All-Star and World Series rosters; descriptions of memorable performances from former games 23 . .. (and) photographs and video clips taken of plaintiffs when they were playing the game 24 themselves." Id. at 410. In addressing the plaintiffs' common law misappropriation claim, the 25 26 27 28 3 This line of authority complements, but is independent of, the "public affairs" exemption from statutory right-of-publicity claim discussed below in Section III.D. CaL. Civ. Code § 3344( d). The "public affairs" exemption applies only to statutory claims, whereas the First Amendment defense applies to both statutory and common law publicity rights claims. See, e.g., Gionfriddo, 94 Cal. App. 4th at 409. 444705.05 12 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page20 of 30 1 court held that "(t)he recitation and discussion of factual data concerning the athletic 2 performance of these plaintiffs command a substantial public interest, and, therefore, is a form of 3 expression due substantial constitutional protection," id. at 41 1, and concluded that "the public 4 interest favoring the free dissemination of information regarding baseball's history far outweighs 5 any proprietar interests at stake," id. at 415. The court held that the plaintiffs' claims for 6 violation of their common-law and statutory rights of publicity failed as a matter oflaw. /d. 7 In CB. C Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, 8 L.p., 505 F.3d 818 (8th Cir. 2007), plaintiffe.B.C. offered "fantasy" online baseball games 9 incorporating the actual names, nicknames, likenesses, signatures, pictures, playing records, and ; ~ . 10 biographical data of major league baseball players. Id. at 823. e.B.C. initially had licensed this 11 information from the Major League Baseball Players' Association. But when the Players' 12 Association declined to renew the license, C.B.C. sought ajudicial declaration of its right to use 13 the players' information without a license, arguing that it had a First Amendment right to use the 14 players' information without a license. Id. at 821. The Eighth Circuit agreed with plaintiff, 15 affirming that the First Amendment protected the plaintiffs right to use athletes' names, 16 statistics and biographical information in an online game. As the court observed, "the 17 information used in e.B.e.'s fantasy baseball games is all readily available in the public domain, 18 and it would be strange law that a person would not have a first amendment right to use 19 information that is available to everyone." /d. at 823. Noting that "fantasy baseball games 20 depend on the inclusion of all players and thus cannot create a false impression that some 21 paricular player with 'star power' is endorsing (the plaintiffs) products," the court held that the 22 First Amendment "trmp(edJ" the players' right of publicity. Id. at 822-824. See also CBS 23 Interactive, Inc. v. National Football League Players Ass 'n, Inc., 2009 WL 1151982, at *19 24 (D. Minn. April 28, 2009) ("(L)ike in CB.C Distribution, the package of information used here 25 (names, player profiles, up-to-date statistics, injury reports, paricipant blogs, pictures, images, 26 IIII 27 IIII 28 I I I I 13 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CY-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page21 of 30 444705.05 1 and biographical information) comes within the ambit of the First Amendment"). 4 2 And in Montana v. San Jose Mercury News, 34 Cal. App. 4th 790 (1995), the court held 3 that the First Amendment protected the defendant's use of football player Joe Montana's likeness 4 on posters. "When Joe Montana led his team to four Super Bowl championships in a single 5 decade, it was clearly a newsworthy event. Posters portraying the 4gers' victories are ... 'a form 6 of public interest presentation to which protection must be extended. '" /d. at 795 (citations 7 omitted). The public has an abiding interest in professional football, so Montana's statutory and 8 common law claims for misappropriation of his name and likeness were bared by the First 9 Amendment. See id. at 796. 10 Taking Plaintiffs allegations as true, it follows that EA's alleged inclusion in its games 11 of players' likenesses, statistics and biographical data enjoys the same free-speech protections of 12 the First Amendment and California Constitution and bars Plaintiffs claims.s Plaintiff 13 acknowledges the vast popularty of NCAA athletics by highlighting their successes and interest, 14 see, e.g., Compl. irir 5, 11, and confirms that college football and basketball are "closely followed 15 by a large segment of the public." CB.S. Interactive, 2009 WL 1151982, at *21. This factual, 16 public-domain information about college athletes commands a substantial public interest, just as 17 such information about profession athletes does. See CB.C, 505 F.3d at 823-24; Gionfriddo, 94 18 19 20 21 22 23 24 25 26 27 28 4 Significantly, CBS currently offers for college football the same online fantasy sports game that was found to be protected by the First Amendment in the professional context, including all the same types of statistics, biographical information, and individual college players' names. See RJ ir 6. S While the Complaint acknowledges that the games do not include the names of players, it alleges that consumers have the ability to add to the games (post-purchase) the names from college team rosters which consumers may download from unaffiliated third-pary websites. See CompL irir 1,35 - 39. To the extent that these allegations seek to impose liability on EA based on consumer's uses of roster names obtained from third paries, they fail for at least three reasons. First, EA did not engage in the alleged misappropriation, as the Complaint concedes. See Cal. Civil Code § 3344(a) (requiring the defendant's use). Second, the theory would be barred by the First Amendment, see Section II1.B. 1 above. Third, to the extent they seek to impose liability for internet-based conduct, such as consumers' use ofEA Locker, they are barred by the Communications Decency Act of 1996 ("CDA"), which provides that "(n)o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 US.e. § 230(c)(I). This immunity extends to publicity rights claims. See e.g. Perfect 10, 1nc. v. CCBil, LLC, 488 F .3d 1102, 1119 n.5 (9th Cir. 2007); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1121-23 (9th Cir. 2003). 14 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page22 of 30 1 CaL. App. 4th at 41 1; Montana, 34 Cal. App. 4th at 794-96. 2 If a poster of Joe Montana, a program from a baseball game, and a "fantasy sports" game 3 that includes nothing more than players' names, photos, biographical information and statistics 4 are all protected by the First Amendment against publicity rights claims, then so too must NCAA 5 Football and NCAA Basketball I NCAA March Madness, which include a diverse array of 6 additional creative and expressive features that don't exist in these other works. 7 3. Meritorious Misappropriation Claims Target Advertisements. 8 In contrast to the allegations here, successful misappropriation claims generally arise 9 from the use of the plaintiffs name or likeness in advertising or merchandising of non- 10 transformative works.6 The line of authority restricting the use of a celebrity's likeness in 1 1 commercial advertising "concerns only the market which exists in our society for the 12 exploitation of celebrity to sell products, and .. attempt( s) to take a free ride on a celebrity's 13 celebrity value." White, 971 F.2d at 1401 n.3. This is not the case here. NCAA Football and 14 NCAA Basketball I NCAA March Madness are not advertisements or commercial speech-i.e. 15 "speech that merely proposes a commercial transaction." Va. State Bd. of Pharmacy v. Va. 16 Citizens Consumer Counsel, Inc., 425 U.S. 748, 762 (1976). This reasoning is consistent with a 17 test used in some other jurisdictions, known as the "relatedness" test, which affords First 18 Amendment protection to the use of a person's name or likeness as long as the use is "related" to 19 the content of the work and is not "simply a disguised commercial advertisement for the sale of 20 goods or services." Romantics, 574 F. Supp. 2d at 766; see also Rogers v. Grimaldi, 875 F.2d 21 994, 1004 (2d Cir. 1989); RESTATEMENT (THIR) OF UNAIR COMPETITION § 47, 22 23 24 6 25 26 27 28 See, e.g., Newcombe v. Adolf Coors Co., 157 F.3d 686,691 (9th Cir. 1998) (use of pitcher's image in beer advertisement); Wendt v. Host Intl, Inc., 125 F.3d 806, 809 (9th Cir. 1997) (use of animatronic figures of television characters in airport bars); Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 409 (9th Cir. 1996) (use of basketball star's former name in television car commercial); White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1396 (9th Cir. 1992) (use of game-show hostess's identity in advertisements for electronic products); Midler v. Ford Motor Co., 849 F.2d 460, 461-62 (9th Cir. 1988) (use of sound-alike of famous singer in car commercial featuring singer's hit song); Motschenbacher v. RJ Reynolds Tobacco Co., 498 F.2d 821, 822 (9th Cir. 1974 ) (use of famous race car drver's distinctive car in cigarette commercial). 15 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW 444705.05 Case4:09-cv-01967-CW Document34 Filed07/29/09 Page23 of 30 1 comment c.7 Here, Plaintiff rightly does not claim that EA's alleged use of his likeness is 2 "wholly unrelated" to the content of the games or a disguised commercial advertisement or 3 endorsement. ! . 4 C. All of Plaintiff's Claims Fail Because He Has Not Alle2ed A Recoverable Injury. 5 All of Plaintiffs claims also fail because he does not allege the necessary element of 6 injury. The standing requirements of Aricle III and the elements of each of Plaintiffs claims 7 require him to allege facts showing that he was injured.8 Conclusory allegations of injury are 8 insufficient to avoid a motion to dismiss. See, e.g., Barnett, 2009 WL 799402, at *10-11 9 (dismissing complaint for failure to adequately allege injury). "Threadbare recitals of the 10 elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 11 129 S.Ct. at 1949. The same principle applies to claims under Section 17200 and for unjust 12 enrchment, although they are not damages claims. Even before Proposition 64 added the 13 requirement of alleging injury in fact and loss of money or property to state a claim under 14 Section 17200, a plaintiff was required to allege that he had "given up something which he or she 15 was entitled to keep" in order to claim monetary recovery. Day v. AT&T Corp., 63 Cal. App. 4th 16 325,340 (1998). Likewise, even if an independent cause of action for unjust enrchment existed 17 under California law-as shown below, it does not-a plaintiff cannot avoid the basic 18 requirements of pleading and proving actual injur by styling his claim as one for unjust 19 enrchment. See Peterson, 164 CaL. App. 4th at 1593-95. 20 Here, Plaintiffs only allegations of injury are entirely conclusory. The sum total of 21 Plaintiff s injury allegations are: "Plaintiff and class members have been injured," Compl. irir 74, 22 77, "Plaintiff and class members have been damaged as described above," id. ir 81, "Electronic 23 Ars' conduct has further caused and is causing damage and irreparable injury to Plaintiff and 24 25 26 27 28 7 For the purposes of this motion, EA will assume that California law applies. See, e.g., MAl Systems Corp. v. UIPS, 856 F. Supp. 538,540-42 (N.D. Cal. 1994) (plaintiff must allege injury to have standing); Butler v. Target Corp., 323 F. Supp. 2d 1052, 1056 (e.D. CaL. 2004) (injury is an element of common-law and statutory right-of-publicity claims); Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503,511 (1994) (same for civil conspiracy); Cal. Bus. & Prof. Code § 17204 (same for § 17200 claim); Peterson v. Cellco P'ship, 164 CaL. App. 4th l583, 1593-95 (2008) (same for unjust enrchment). 8 444705.05 16 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page24 of 30 1 class members," id. ir 84, and "(t)o the detriment of Plaintiff and class members, Defendants 2 Electronic Ars and CLC have been and continue to be unjustly enrched as a result of the 3 unlawful and/or wrongful conduct alleged within," id. ir 90. Such a "formulaic recitation" ofthe 4 necessary element of injur is insufficient to state a claim. Twombly, 550 U.S. at 555. 5 Even if the Court were to extrapolate from Plaintiffs other allegations, Plaintiff has not 6 "nudged (his) claims (of injury) across the line from conceivable to plausible," id. at 570, 7 because EA was-and is-legally barred from providing college athletes the compensation 8 Plaintiff demands. California's Miller-Ayala Act makes it a misdemeanor for anyone, other than 9 attorneys and other exempted persons not relevant here, to provide "remuneration for any value 10 or utility that" a student athlete "may have because of publicity, reputation, fame, or following 11 obtained because of athletic ability or performance." Cal. Bus & Prof Code §§ 18895.2, 18897.6 12 & 18897.93. Courts will not recognize damage claims premised on allegations that paries 13 would or should have entered into an unlawful contract. See, e.g., Page v. Bakersfield Uniform 14 & Towel Supply Co., 239 Cal. App. 2d 762, 773 (1966) ("It is a wrongful and improper practice 15 to seek damages dependent upon a violation ofthe law."); Picton v. Anderson Union High Sch. 16 Dist., 50 Cal. App. 4th 726, 730 (1996) (illegal contracts canot be enforced). In other words, an 17 opportunity to replead would not cure the defect, because Californa law bars the conduct 18 Plaintiff now claims EA should have undertaken. 19 Because Plaintiff offers nothing beyond bare legal conclusions to show that he was 20 injured, the Cour should dismiss all of Plaintiffs claims against EA with prejudice. 21 D. 22 Plaintiff's California Statutory Misappropriation Claim is Barred by the Statute's "Public Affairs" Exemption. 23 Plaintiffs second cause of action for alleged violation of his publicity rights under 24 California Civil Code Section 3344 also fails because the statute expressly exempts from liability 25 the "use of a name. . . or likeness in connection with any . . . public affairs, or sports broadcast 26 or account." CaL. Civ. Code § 3344(d). This exemption affords works even broader protection 27 against statutory misappropriation than the First Amendment does. New Kids on the Block v. 28 News America Pub., Inc., 971 F.2d 302, 310 n.l0 (9th Cir. 1992) ("the section 3344(d) defense is 17 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page25 of 30 1 not coextensive with the First Amendment. Rather, it is designed to avoid First Amendment 2 questions in the area of misappropriation by providing extra breathing space for the use of a 3 person's name in connection with matters of public interest."). 4 EA's alleged inclusion of Plaintiffs likeness meets the statutory definition of "in 5 connection with. . . public affairs." Cal. Civil Code § 3344(d). Cours repeatedly have held that 6 expressive works related to a variety of sports are "in connection with... public affairs," and in 7 circumstances less compellng than here. In Dora v. Frontline Video Inc., 15 Cal. App. 4th 536 8 (1993), for example, the court held that the "public affairs" exception applied to surfing, which 9 "has created a life style that influences speech, behavior, dress, and entertainment, among other 10 things. A phenomenon of such scope has an economic impact, because it affects purchases, 1 1 travel, and the housing market. Surfing has also had a significant influence on the popular 12 culture, and in that way touches many people." /d. at 546. In Montana, the cour held that the 13 use of Joe Montana's likeness also fell within the Section 3344(d) "public affairs" exception, 14 finding that "the same public interest considerations applicable to surfing apply with equal force 15 to professional footbalL." Montana, 34 Cal. App. 4th at 796. And the court in Gionfiddo reached 16 the same conclusion with respect to baseball, noting that "(b )aseball, not surfing, is, after all, 'the 17 national pastime.'" Gionfriddo, 94 Cal. App. 4th at 416. 18 College football and basketball are of equal interest to the public as professional football 19 and baseball-let alone surfing. Plaintiff concedes as much, alleging that the NCAA "generates 20 hundreds of millons in royalties, broadcast rights and other licensing fees each year." CompL. 21 ir 5. Likewise, Plaintiff alleges that "( c )onsumers demand that these (video game) matches 22 simulate actual college matches in the most realistic maner possible," id. ir 11, which simply 23 underscores the intensity of public interest in college sports. 24 As Dora, Montana and Gionfriddo recognize, "public affairs" includes much more than 25 just traditional news broadcasts, and extends to works-whether informative, entertaining, or 26 both-that relate to "popular culture" and to "real-life occurrences." Dora, 15 Cal. App. 4th at 27 545-46. If a film about surfing, a poster of Joe Montana, and a program from a baseball game 28 are exempt under Section 3344(d), then so, too, are NCAA Football and NCAA Basketball I 18 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page26 of 30 444705.05 1 March Madness-games about college football and college basketbalL. Plaintiffs California 2 statutory misappropriation claim fails for this independent reason. 3 E. Plaintiff's Civil Conspiracy Claim Fails Because There is No Underlyin2 Tort. 4 Plaintiff lacks an underlying tort upon which to base his fourh cause of action for civil 5 conspiracy. "Conspiracy is not a cause of action, but a legal doctrine that imposes liability on 6 persons who, although not actually committing a tort themselves, share with the immediate 7 tortfeasors a common plan or design in its perpetration." Applied Equip. Corp. v. Litton Saudi 8 Arabia Ltd., 7 Cal. 4th 503, 510-11 (1994).9 Because each of Keller's first three causes of action 9 for misappropriation are bared by the First Amendment and fail for numerous additional 10 reasons,10 his fourth cause of action for civil conspiracy has no underlying tort and, therefore, 1 1 fails. i i 12 Furthermore, "allegations of conspiracy must be supported by material facts, not merely 13 conclusory statements." Woodrum v. Woodward County, Okl., 866 F.2d 1121, 1126 (9th Cir. 14 1989) (citation omitted). Keller alleges no facts, at all, to support his conspiracy claim and 15 nudge it pass the theoretical to the plausible. Twombly, 550 US. at 570. Instead, the Complaint 16 does that which the Supreme Cour has admonished against-merely reciting the legal elements 17 of the claim and offering no facts to support it. See Compl. ir 79 (on "information and belief," 18 "Defendants, and each of them, have conspired to use class members' likenesses without 19 permission... ."). For this independent reason, his conspiracy claim fail to satisfy basic pleading 20 21 22 23 24 25 26 27 28 9 To the extent that Indiana law applies to the conspiracy claim, Indiana law is in accord with California law. Under Indiana law "there is no cause of action for conspiracy as such. The cause of action is for damage resulting from a conspiracy." Indianapolis Horse Patrol, Inc. v. Ward, 247 Ind. 519, 522 (1966). Plaintiff must show that there was a conspiracy to achieve some unlawful purpose or a lawful purose through unlawful means. Id. "In other words, allegations of a civil conspiracy are just another way of asserting concerted action in the commission of a tort." Boyle v. Anderson Fire Fighters Ass 'n Local 1262, AFL-CIO, 497 N.E. 2d 1073, 1079 (Ind. Ct. App. 1986). 10 The first cause of action against the NCAA for deprivation of rights of publicity under Indiana law fails for the reasons stated in the NCAA's Motion to Dismiss. i i The remaining fifth through seventh causes of action canot form the basis of Plaintiff s fourth cause of action for civil conspiracy. There is no civil conspiracy for a breach of contract. Hanni v. Am. Airlines, Inc., 2008 WL 5000237, at *5 (N.D. CaL. Nov. 21,2008). And the California unfair competition and purported unjust enrchment claims are not stand-alone torts, but, like the civil conspiracy claim, require a separate underlying tort. 19 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page27 of 30 1 requirements and should be dismissed. See Iqbal, 129 S.Ct. at 1949. 2 F. Plaintiff's Section 17200 Fails Because It Lacks a Predicate Violation and Seeks an Unavailable Remedy. As with his civil conspiracy claim, Plaintiff lacks an underlying wrong on which his 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 unfair competition claim may stand. Section 17200 "borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable." Goldman v. Standard Ins. Co., 341 F.3d 1023, 1036 (9th Cir. 2003) (internal quotations and citations omitted). In this manner, an unfair competition claim "ride(s) the coattails" of the plaintiffs primary claims. Kirby, 144 Cal. App. 4th at 57 n.3. Here, there are no coattails to ! . ride. Because Plaintiffs unfair competition is derivative of his misappropriation and civil conspiracy claims against EA, it fails for the same reasons they do. Separately, Plaintiffs Section 17200 claim fails, because he improperly seeks to obtain monetary relief. As par of his Section 17200 claim, Plaintiff seeks disgorgement ofEA's "profits obtained from the utilization of Plaintiff and class members names and likeness." Compl. ir 84. However, "nonrestitutionar disgorgement of profits is not an available remedy in an individual action under the UCL." Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1152; see also Alch v. Superior Court, 122 Cal.App.4th 339, 408 (2004) (denying a UCL class action claim for non-restitutionary back-pay). Plaintiff alleges no facts-because he canot-showing that disgorgement ofEA's profits would be restitutionary, "restor(ing) the status quo by returning to plaintiffs fuds in which he or she has an ownership interest." Korea Supply Co., 29 Cal. 4th at 1149. To the contrar, plaintiff has no ownership interest in any of EA's funds and cannot point to a now-disrupted status quo in which he legally possessed the funds. Plaintiff does not allege that he has a vested interest in EA's profits, nor even an attenuated expectancy. See id. at 1149-50. Accordingly, if the Court finds that Plaintiff has stated a Section 17200 claim at all-which he has not-the only available relief is an injunction. G. Plaintiff's Unjust Enrichment Claim Fails Because There is No Such Claim Under California Law and There Exists an Express Contract Coverin2 the Same Subject. 27 Finally, Plaintiffs unjust enrchment claim fails as a matter oflaw for two additional 28 reasons. 20 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page28 of 30 1 First, no claim for unjust enrchment exists under California law absent independent 2 grounds for imposing an implied contract or constructive trust on the defendant. As one Cour of 3 Appeal recently held, under California law, "(t)here is no cause of action for unjust enrchment. 4 Rather, unjust enrchment is a basis for obtaining restitution based on quasi-contract or 5 imposition of a constructive trust." McKell v. Washington Mut., Inc., 142 CaL. App. 4th 1457, 6 1490 (2006); accord Roots Ready Made Garments v. Gap Inc., No. C 07-03363 CRB, 2008 WL 7 239254, at *8 (N.D. Cal. Jan. 28, 2008) (dismissing unjust enrchment claim with prejudice). 8 Plaintiff has neither alleged that an implied contract exists between the parties nor that a 9 constrctive trust would be appropriate. Thus, Plaintiff fails to state a claim for unjust 10 enrchment because California law does not recognize a claim based on bare allegations that 11 Defendants have "unjustly benefited." See id. 12 Second, to the extent that a limited claim for unjust enrchment is recognized under 13 California law, it is well established that such a claim does fail where there exists "a valid 14 express contract covering the same subject matter." Lance Camper Mfg. Corp. v. Republic 15 Indem. Co., 44 Cal. App. 4th 194, 203 (1996); accord City of Oakland v. Com cast Corp., 16 No. C 06-5380, 2007 WL 518868, *4-5 (N.D. CaL. Feb. 14,2007). This rule operates to bar 17 unjust enrchment claims regardless of whether or not the contract at issue is between the 18 plaintiff and a defendant. See, e.g., 4 Hour Wireless v. Smith, 01 Civ 9133, 2002 US. Dist. 19 LEXIS 22680, at *1-2 (S.D.N.Y. Nov. 22, 2002). Here, Plaintiff alleges that he and other 20 players entered into contracts with defendant NCAA, which "impose specified duties on 21 Defendant NCAA," including a purported duty not to permit EA "to utilize players' names and 22 likenesses." Compl. irir 86-87. Because Plaintiffs contract with the NCAA, by Plaintiffs own 23 allegations, covers the same subject matter as his unjust enrchment claim, that claim must fail as 24 a matter oflaw. See Lance Camper, 44 Cal. App. 4th at 203. It should be dismissed with 25 prejudice. 26 I I II 27 IIII 28 IIII 21 444705.05 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page29 of 30 1 iv. CONCLUSION 2 For all ofthe foregoing reasons, the Court should dismiss Plaintiffs complaint against 3 EA in its entirety, with prejudice. 4 KEKER & V AN NEST LLP5 Dated: July 29,2008 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 444705.05 By: Isl Robert A. Van Nest ROBERT A. VANNEST Attorneys for Defendant ELECTRONIC ARTS INC. 22 EA'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES CASE NO. CV-09-1967-CW Case4:09-cv-01967-CW Document34 Filed07/29/09 Page30 of 30