SUPREME COURT OF BRITISH COLUMBIA VANCOUVER REGISTRY No. $720 9g 03 Vancouver Registry SEP 30 2020 a IN THE SUPREME COURT OF BRITISH COLUMBIA Between MARK SUTHERLAND AND SHAWN MOORE PLAINTIFFS and ELECTRONIC ARTS INC. AND ELECTRONIC ARTS (CANADA) INC, DEFENDANTS Brought under the Class Proceedings Act, R.S.B.C. 1996, c. 50 NOTICE OF CIVIL CLAIM This action has been started hy the plaintiffs for the relief set out in Part 2 below. If you intend to respond to this action, you or your lawyer must (a) file a response to civil claim in Form 2 in the above-named registry of this court, within the time for response to civil claim described below, and (b) serve a copy of the filed response to civil claim on the plaintiff. If you intend to make a counterclaim, you or your lawyer must (a) file a response to civil claim in Form 2 and a counterclaim in Form 3 in the above-named registry of this court within the time for response to civil claim deseribed below, and (b) serve a copy of the filed response to civil claim and counterclaim on the plaintifis and on any new parties named in the counterclaim. JUDGMENT MAY BE PRONOUCED AGAINST YOU IF YOU FAIL to file the response to civil claim within the time for response to civil claim described below. Time for response to civil claim A response to civil claim must be filed and served on the plaintiff, (a) if you reside anywhere in Canada, within 21 days after the date on which a copy of the filed notice of civil claim was served on you, aeataa(b) if you reside in the United States of America, within 35 days after the date on which a copy of the filed notice of civil claim was served on you, (©) if you reside elsewhere, within 49 days after the date on which a copy of the filed notice of civil claim was served on you, or @ if the time for response to civil claim has been set by order of the court, within that time. THE PLAINTIFFS’ CLAIM Part 1: STATEMENT OF FACTS Overview 1. Video games are a multi-billion-dollar global industry that counts both children and adults as customers and players on personal computers, dedicated consoles and mobile devices. As video game developers and publishers have sought to monetize their products, they have increasingly employed addictive game elements including so-called “loot boxes” to compel players to spend more time and money in their games. A loot box is a game of chance inside a video game, by which a player pays for a digital “roll of the dice” and the possibility of obtaining desirable virtual rewards. A loot box is either purchased with real money (or with virtual currency bought with real money) or must be “unlocked” using a virtual “key” purchased with real money, Video game publishers have received hundreds of millions of dollars from the exploitation of players through their loot boxes. 2. The Criminal Code of Canada prohibits unlawful gaming, betting, lotteries, and games of chance. Gaming is strictly controlled and licensed in this country. In breach of these laws, the Defendants have operated an unlicensed, ‘illegal gaming system through their loot boxes. Through this suit, Canadian consumers seek to hold the Defendants accountable for this unlawful conduct, and to recover their losses. The Parties 3. The Defendant, Electronic Arts Inc. is a company incorporated under the laws of Delaware, with an address for service at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware, USA, 19801. Electronic Arts Inc. develops, publishes and distributes branded interactive entertainment software for a variety of video game consoles, computers and cellular devices. Through its EA Sports division, Electronic Arts Inc. develops and publishes sports video series, Electronic Arts Inc. is publicly traded on the NASDAQ stock exchange and 2carries on business in British Columbia, across Canada and worldwide by developing, marketing, distributing and selling the video games referred to herein, including to British Columbians and ‘Canadians, and collecting from the sales of those products. 4, The Defendant, Electronic Arts (Canada), Inc,, is a company incorporated pursuant to the laws of British Columbia with an address for service at 1800-510 West Georgia St, Vancouver, BC, VB 0M3. Electronic Arts (Canada) Inc. the primary developer of video game products sold under the EA Sports brand. Electronic Arts (Canada) Inc. is a wholly-owned subsidiary of Electronic Arts Inc. Electronic Arts (Canada), Inc. carries on business in British Columbia and Canada, including by operating facilities in this province and employing residents of this province. 5. The Defendants, Electronic Arts Inc. and Electronic Arts (Canada) Inc. are together “Electronic Arts”. These Defendants function as a joint enterprise. Each of these Defendants is an agent of the other for the purposes of developing, marketing, distributing and selling the video ‘games referred to herein. 6. The Plaintiff Mark Sutherland is a resident of British Columbia. He is a customer of the Defendants. During the Class Period he spent money to purchase the opportunity to open loot boxes in the Madden NFL series of video games published by the Defendants. He purchased the loot boxes for personal purposes. 7. The Plaintiff Shawn Moore is a resident of Ontario. He is a customer of the Defendants. During the Class Period he spent money to purchase the opportunity to open loot boxes in the NHL series of video games published by the Defendants. He purchased the loot boxes for personal purposes. 8. ‘The Plaintiffs bring this claim on their own behalf and on behalf of the Canadian customers of the Defendants who during the Class Period purchased or otherwise paid directly or indirectly for loot boxes in any of the following games published by Electronic Arts: a. FIFA 09; b. FIFA 10;ce. FIFA; a. FIFA 12; e. FIFA 13; f. FIFA 14; g FIFA15; hb FIFA16; i, FIFA17; j. FIFAI8; k. FIFA19; 1. FIFA 20; m. FIFA 21; n. Madden NFL 10; ©. Madden NFL 11; p. Madden NFL 12; q. Madden NFL 13; r. Madden NFL 25'; s. Madden NFL 15; t Madden NFL 16; u. Madden NEL 17; } Released for the 2014 gaming year to commemorate the 25th anniversary of the Madden NFL game franchise. 4aa, bb. dd. ee. 88. ii, mn, 00. Madden NFL 18; Madden NFL 19; Madden NFL 20; Madden NFL 21; NHL 11; NHL 12; NHL 13; NHL 14; NUL 15; NUL 16; ‘NHL 17; NHL 18; NHL 19; NHL 20; NHL 21; NBA Live 14; NBA Life 15; . NBA Live 16; NBA Live 18; NBA Live 19;qa. ss. uu, w. xx. aaa. bbb. cece, ddd. eee, egg. hhh, UFC 2; UFC 3; Apex Legends; Battlefield 4; Battlefield Hardline; Battlefield 1 (2016); Dragon Age: Inquisition; . Mass Effect 3; Mass Effect: Andromeda; Need for Speed: Payback; Plants vs Zombies: Garden Warfare; Plants vs Zombies: Garden Warfare 2; Star Wars: The Old Republic; Command & Conquer: Rivals; Heroes of Dragon Age; Plants vs Zombies 2: It’s About Time; Star Wars: Galaxy of Heroes; The Sims Mobile; WarFriends; andiii, Such other games developed and published by the Defendants that may become known to the Plaintiff. ‘between 2008 and the date this action is certified as a class proceeding (the “Class”, “Class Members” and “Class Period”). Digital Games 9. Modem video games are complex constructs, incorporating top-of-the-line graphics, dynamic gameplay, sophisticated plots and stories, and intricate engineering. Video games are increasingly popular across all age groups and are part of mainstream culture around the world, Video games are especially popular with children under the age of majority (“Underage Players”). 10, Video games are a multi-billion-dollar industry. Today, the global digital games market is illion by 2022. The top ten global publishers of video games all have annual revenues over US$1-billion. worth approximately USS117-billion and is expected to grow to US$160- 11. Video games are played on computers, as well as on games consoles (for example Microsoft’s Xbox, Nintendo's devices, Sony’s Play Station) and on mobile devices (smartphones). The majority of video games are playable over the intemet; many are only playable online. Given the variety of platforms and formats, and the diversity of types of gameplay and stories, these products are best referred to as “Digital Games”. 12, Digital Games come in many different styles, including sports simulators (e.g., the Defendants’ FIFA franchise), racing (Burnout; Forza Motorsport), open world (Fallout 4; Grand Theft Auto; The Elder Scrolls: Skyrim), massively multiplayer online role playing games (World of Warcraft), turn-based strategy (Civilization), real time strategy (StarCraft 2; Total War: Warhammer 1), multiplayer online battle arena (Dota 2; League of Legends), fighting games (Street Fighter V; Mortal Kombat 11), and first- and third-person shooters (Counter-Strike; Call of Duty; PlayerUnknow increasing popularity of e-sports (competitive, broadcast video game competitions) has brought Battlegrounds; Fortnite; Star Wars Battlefront), among others. The new audiences to the format. All modem Digital Games are substantially the same in key respects.13. Digital Games are designed and produced by developers. Using their own resources or external financing, developers create Digital Games. They are the authors of a particular game or franchise. Digital Games with the biggest budgets and promotions are referred to as “AAA” games. 14, Digital Games are distributed by publishers. Publishers are responsible for their products? ‘manufacturing, marketing and distribution. Publishers either develop their own products in house or license or contract with external developers. For Digital Games that are playable exclusively or principally online, publishers are responsible for managing the game on an ongoing basis, including the provision of support and updates, the maintenance of servers, and the processing ‘and collection of payments from players. Some Digital Games, including the ones at issue in this proceeding, are both developed and published by the same company. 15. From about the 1980s until the early 2000s, Digital Games were distributed in physical form, such as cartridges or CDs and DVDs. Customers paid for the game up front (known as “pay once”), and the publishers received most of their income from the retail sale of their products. 16. Beginning in the early 2000s, Digital Games were offered with online components or for download from the intemet. Publishers began to take advantage of their ability to sell upgrades (expansions or add-ons) to existing products to customers multiple times for the same product (or title) 17. During this period, Digital Games publishers began to host Digital Games as a service, whereby internet access was required to make use of the product. Publishers again made innovations to their business model, offering access to products on a monthly or annual subscription basis. By the mid-2000s, publishers were offering extensive add-ons, including downloadable content “packs” that would change the appearance of a player’s in-game character = for a price. This process of financial engineering is generally referred to as “game monetization”, 18. Some of these add-ons are regarded by gaming purists as “cheats”, because they allow a player to artificially accelerate their progress through a game by buying abilities or experienceotherwise only obtainable through long hours of gameplay. Paid add-ons are especially popular in free to play games (e.g., Farmville; Angry Birds). While such products or services may take away from the experience of gameplay or even be ethically troublesome, they did not attract much regulatory scrutiny. 19. By the late 2000s and early 2010s, the Digital Games market had expanded and matured. ‘An immense variety of Digital Games became available, from free-to-play mobile and browser games, through to more complicated online products, such as massivemulti-player online role- playing games (“MMORPGs”) and arena games. Publishers had to compete for players’ attentions with other digital distractions. Loot Boxes 20. One innovation developed by publishers to both keep players’ attention and to extract additional revenue was the loot box. A loot box is a consumable virtual item which can be redeemed (or “opened”) to receive a randomised selection of further virtual items, ranging from simple customization options for a player's avatar or character, to game-changing equipment or additional avatars/characters (with effects on gameplay, including relative to other players) (“Loot Boxes”). Purchasing the right to open a Loot Box is a bet — a game of chance. 21. Loot Boxes have real-world value. Players can buy Loot Boxes directly from publishers through an in-game transaction (using real money or in-game currency earned through play or purchased with real money) or receive the Loot Boxes during play and later buy "keys" with which to redeem them, 22. Some Loot Boxes are free to play. This action is concemed only with games in which players pay with real or virtual currency for the opportunity to play or open a Loot Box. 23. — Loot Boxes are an extension of randomised loot drop systems from earlier Digital Games, frequently used to give out rewards in MMORPGs or similar games (for example, the chance to obtain a special item, like a sword or armour with special characteristics, on vanquishing a “boss”). Loot Boxes are also an extension of a feature developed for the Japanese market (known as “gacha” or “kompu gacha”) and refined in the Chinese market from around 2007.24, The random chance element is central to the appeal of Loot Boxes to developers and publishers: Loot Boxes are considered part of the compulsion loop of game design to keep players invested in a game. Such compulsion loops are known to contribute towards video game addiction and are frequently compared to gambling addiction. This is in part due to the use of a “vatiable-rate reinforcement schedule” similar to how slot machines dole out prizes and it is especially dangerous for children. The random element also makes players more likely to pay for the chance to “win” an item from a Loot Box. Players do not know the contents of a Loot Box at the time they commit to purchase, 25. The odds of a particular item being in a Loot Box are determined by publishers including the Defendants, For the majority of the Class Period the Defendants did not make available to players in Canada the odds of obtaining particular items from their Loot Boxes. 26. tems obtained from Loot Boxes can either affect gameplay or not affect gameplay. Items may affect gameplay where they offer a player a competitive advantage over another player, for example by giving the player additional abilities or “stats”. Items will not affect gameplay where they offer purely cosmetic rewards, such as clothing for an in-game avatar. Cosmetic items still have importance and value to players, who desire the ability to personalise their in-game avatars and show off to other players. 27. Loot Boxes contain items and rewards of varying rarity, with “rare” items and rewards conferring a larger advantage than “common” items and rewards. In the case of cosmetic items, rare” items are generally more prestigious than “common” ones, and carry higher social value 28. The items in Loot Boxes have intrinsic value, and in some games the same or similar items can be purchased directly with real money. Where a game allows trading of items between players, often third-party marketplaces arise allowing players to pay real money for items normally only available in Loot Boxes. Some publishers have moved this ability “in house” and offer in-game auction houses for the trading and selling of items contained in Loot Boxes. 29. Certain items are available only from Loot Boxes and not from ordinary gameplay. Games are increasingly designed such that players must obtain high-value items available 10exclusively from Loot Boxes in order to be competitive with other players in the games’ online environments. This increases the compulsion or the need for players to pay for Loot Boxes. 30, Publishers, including the Defendants, market and advertise their Digital Games, including the Loot Boxes as a feature. The advertisements include promotions online and offline, including electronic ads and messages to players or potential players, encouraging them to play their Digital Games and their Loot Boxes. In particular, publishers, including the Defendants, extol to players and potential players the excitement and possible advantage to be gained from acquiring a Loot Box and its contents. The Regulation of Gaming in Canada 31 The Criminal Code of Canada, RSC 1985, c C-46, Part VII prohibits unlawful gaming, betting, lotteries, and games of chance. 32. _ Gaming properly licensed by a provincial government is lawful in the province of license, Alberta, British Columbia, Ontario and Québec regulate gaming through statutes including the Gaming, Liquor and Cannabis Act, RSA 2000, ¢ G-1, Gaming Control Act, SBC 2002, C-14, the Gaming Control Act, 1992, SO 1992, ¢ 24, and the Act Respecting Lotteries, Publicity Contests and Amusement Machines, 1990, ¢ 46, s 18, L-6 and regulations including the Advertising and Marketing Standards for Gambling in British Columbia and the OLG Marketing and Advertising Standard. 33. Gaming operations must be licensed at the provincial level to offer their services to the public. There is no exception for online gaming operations inside or outside Canada. 34. The Defendants are not licensed in Canada to operate gambling, gaming or lottery businesses. The Defendants’ Loot Boxes 35. Loot Boxes in the Defendants’ Digital Games all function in a substantially similar fashion, with players either purchasing the Loot Box directly using real money, or spending real money on a virtual currency which they can then exchange for a Loot Box. ret36. Since 2008, the Defendants have employed Loot Boxes in sports Digital Games franchise series including their FIFA, NHL, NBA and Madden NFL franchises. In those games’ “Ultimate Team Mode”, players are able to purchase Loot Boxes known as “card packs” or “Ultimate Team packs” using a virtual currency earned in the game or purchased with real money. These Loot Boxes contain valuable professional players and other items for the player’s virtual team, conferring an i ame advantage. Items and players that provide a larger game advantage to players are rarer, while items and players that provide a more modest game advantage to players are more common. The relative rarity of items and players is set by the game designer and the publisher, Available for purchase using real money, these Loot Boxes are randomized games of chance in which the player has the prospect of loss or gain of money’s worth, Wanye) CO Cae Ree ee et COO ame ee eee ee) Pee. a Pere 1750 FIFA 19 Points Pack -$9.99 22 “uy Now $9.99 S FIFA 19 points pack, used to buy Ultimate Team packs, available on EA's “Origins” online store 12Nee) Start Your Uimate Team dynasty today with the Madde eee Peto See eae a coer Select a pack below: Madden NFL 19 Ultimate Team 2200 Points Pack - $25.99, es a ] Madden NFL 19 points pack, used to buy Ultimate Team packs, available on EA's “Origins” online store 37. The Defendants have employed Loot Boxes in the Digital Games franchise Battlefield, including Battlefield 4 (2013), Battlefield Hardline (2015), and Battlefield 1 (2016). In those games, players are able to purchase Loot Boxes known as “battlepacks” using a virtual currency eamed in the game or purchased with real money. These Loot Boxes contain cosmetic “skins” that do not affect gameplay, as well as “XP Boosts” to a player’s progression in the game and items that affect gameplay. “XP Boosts” speed a player’s progression through in-game “ranks”, unlocking combat roles, weapons, and equipment that give a player an in-game advantage. Available for purchase using real money, these Loot Boxes are randomized games of chance in which the player has the prospect of loss or gain of money’s worth, 13rg i rg aT] Battlefiels™ Battlefield™ | Bettlefela™ il | Hardline Bro | Hardline Sitver Hardline Gold } Battlepack {| Battlepack Battlepack 1 | | | $0.99 $1.99 $2.99 Battlefield Hardline Battlepacks for purchase on EA's “Origin” online store ute Mee Bacleelo™ 1 | | aowefew=1 |. parle 1 \ Boutesscsx10 | | Batlepecsx20 | | Betepedsx40 | | | Included | | included Included i ‘ith @ Play | wth@ Play with @ Play i ania eee ors7ias | Battlefield 1 (2016) Battlepacks for purchase on EA's “Origin” online store 38, The Defendants have employed Loot Boxes in various Digital Games which include Apex Legends, Dragon Age: Inquisition, Mass Effect: Andromeda, Mass Effect 3, Need For Speed: Payback, Plants vs Zombies: Garden Warfare, Plants vs Zombies: Garden Warfare 2, and Star Wars: The Old Republic. Available for purchase using virtual currency purchased with real 14money, these Loot Boxes are randomized games of chance in which the player has the prospect of loss or gain of money’s worth 39. In Apex Legends, players can purchase a virtual currency called “Apex Coins” which can be spent on Loot Boxes called “Apex Packs”, which themselves contain cosmetic items for use in the game. Cosmetic items are virtual clothing, “emotes”, and other virtual items that change the appearance of a player’s in-game avatar without directly affecting gameplay. Cosmetic items are associated with player prestige, and in particular rare cosmetic items will provide a player with more prestige than common ones. Players who use the default avatars are looked down on by other players. There is therefore an incentive for players to purchase multiple Loot Boxes in order to obtain more valuable and more prestigious rare cosmeti ms. The relative rarity of cosmetic items is set by the game designer and the publisher. ena oro oa Selecta packbelowe rs Apex Legends “Apex Coins” for purchase on EA's “Origins” online store 40. In Dragon Age: Inquisition, players can purchase a virtual currency called “Platinum” which can be spent on Loot Boxes called “chests”, which contain weapons, armor, and potions that confer an advantage in the multiplayer game mode. 15Dragon Age™ Dragon age™ Dragon Age™ Multiplayer 1025 | Multiplayer 11500 Mukiplayer 2150, | Platinum Plaxinum Platinum | | i I | | J} | | ' $9.99 $99.99 $19.99 Dragon Age: Inquisition “Platinum” for purchase on EA's “Origin” online store 41. In Mass Effect 3, players can purchase a virtual currency called “BioWare Points” which can be spent on Loot Boxes called “Packs”, which contain items that confer an advantage in the multiplayer game mode. ‘Mass Effect 3 “Bioware Points” for purchase on EA's “Origin” online store 42. In Mass Effect: Andromeda, players can purchase a virtual currency called “Andromeda Points” which can be spent on Loot Boxes called “Multiplayer Packs”, which contain items that confer an advantage in the multiplayer game mode. 16eres eec en ea ceed apack below: Mass Effect: Andromeda “Andromeda Points” for purchase on EA’s “Origin” online store 43. In Need For Speed: Payback, players can purchase a virtual currency called “Speed Points” which can be spent on Loot Boxes called “Shipments”, which contain cosmetic items as well as items that confer an advantage in the multiplayer game mode. Need For Speed: Payback "Speed Points” for purchase on EA's “Origin” online store 744, In Plants vs Zombies: Garden Warfare, and in Plants vs Zombies: Garden Warfare 2, players can purchase a virtual currency called “Coins” which can be spent on Loot Boxes called “Sticker Packs ., which contain items that confer an advantage in the game. Deon ee Me larcles Poot Selecta pack elon Plants vs. Zombies Garden Warfare 200,000 Coin Pack +S. ¥ Plants vs Zombies: Garden Warfare 1 & 2 "Sticker Packs” for purchase on EA’s “Origin” online store 45, In Star Wars: The Old Republic, players can purchase a virtual currency called “Cartel Coins” which can be spent on Loot Boxes called “Cartel Packs”, which contain items that confer an advantage in the game. ‘Star Wars: The Old Republic “Cartel Coins” ‘for purchase on Valve Corporation's "Steam" online store 46. The Defendants have employed Loot Boxes in various Digital Games released on mobile platforms like Apple’s iOS and Google’s AndroidOS mobile operating systems. These games include Command & Conguer: Rivals, Heroes of Dragon Age, Star Wars: Galaxy of Heroes, and 18WarFriends. Available for purchase using virtual currency purchased with real money, these Loot Boxes are randomized games of chance in which the player has the prospect of loss or gain of money’s worth, 47. In Command & Conquer: Rivals, players can purchase a virtual currency called “Diamonds” which can be spent on Loot Boxes called “Crates”, which contain items that confer an advantage in the game. Ceres Command & Conquer: Rivals “Crates” can be purchased with “Diamonds” 48. In Heroes of Dragon Age, players can purchase a virtual currency called “Gems” which can be spent on Loot Boxes called “Hero Packs”, which themselves contain more powerful heroes, gear, and runes all of which confer an advantage in the game. Players can also purchase Loot Boxes called “Item Packs” which contain gear and runes that confer an advantage in the game. 19Heroes of Dragon Age “Champion Packs” can be purchased with “Gems” 49. In Star Wars: Galaxy of Heroes, players can purchase a virtual currency called “Crystals” which can be spent on Loot Boxes called “Data Cards”, which contain items that confer an advantage in the game. cer anal) he , POST TTS MT ‘Star Wars: Galaxy of Heroes "Gems" for purchase in-game 20Oe Tag ‘Star Wars: Galaxy of Heroes “Data Cards” can be purchased with “Gems” 50. In The Sims Mobile, players can purchase a virtual currency called “SimCash”, or earn “$imCash” by watching advertisements in the game which monetarily benefits Electronic Arts. “SimCash” can be spent on Loot Boxes called “Chests” which themselves contain items that aid in progressing through the game. Heitloom chest J SPCC Heirloom Luxe Heirloom The Sims Mobile “Heirloom Chests" can be purchased with "SimCash” 51, In WarFriends, players can purchase a virtual currency called “Gold” which can be spent on Loot Boxes called “Card Packs”, which contain “WarCards” that confer an advantage in the game. Players can also eam random WarCards by watching a video advertisement in the game, thereby exchanging an ad view that monetarily benefits Electronic Arts for a random chance at a desired WarCard. 52. The Defendants’ Loot Boxes are “games”, the purchase and opening of a Loot Box is a “bet”, the computer infrastructure and the Affected Titles (as defined below) alone or in 2combination are “gaming equipment”, and the Defendants are “keepers” who operate “common betting houses” or “gaming houses” at their physical and online offices and facilities (“places”) wherein Loot Box transactions are recorded and processed and proceeds are paid, all as defined in section 197 of the Criminal Code. 53. The technology that underpins the operation of Loot Boxes is hosted on servers located in facilities operated by the Defendants, including at locations in Canada. Unlawful Gaming 54, By making available Loot Boxes that players pay to access, the Defendants have engaged in unlawfal gaming in breach of the Criminal Code, Part VII. In particular, the Defendants have made available Loot Boxes in the following Digital Games (the “Affected Titles”): a. FIFA 09; b. FIFA 10; e. FIFA11; a. FIFA 12; e. FIFA 13; f FIFA14; g FIFA 15; h. FIFA 16; i FIFA17; i. FIFA18; Kk FIFA19; 1. FIFA 20; 22aa, bb. dd. ce. FIFA 21; ‘Madden NFL 10; Madden NFL 11; Madden NFL 12; Madden NFL 13; Madden NFL 25°; Madden NFL 15; Madden NFL 16; Madden NFL 17; Madden NFL 18; Madden NFL 19; Madden NFL 20; Madden NFL 21; NHL 11; ‘NHL 12; NHL 13; NHL 14; NHL 15; NHL 16; Released for the 2014 gaming year to commemorate the 25th anniversary of the Madden NFL game franchise. 23Bg. hh, ii, IL 00. PP. aa. uu. ww. xX, NHL 17; ‘NHL 18; NHL 19; NHL 20; NHL 21; NBA Live 14; NBA Life 15; NBA Live 16; NBA Live 18; NBA Live 19; UFC2; UFC3; Apex Legends; Battlefield 4; Battlefield Hardline; Battlefield 1 (2016); Dragon Age: Inquisition; Mass Effect 3; Mass Effect: Andromeda; ‘Need for Speed: Payback; 24zz. Plants vs Zombies: Garden Warfare; aaa, Plants vs Zombies: Garden Warfare 2; bbb. Star Wars: The Old Republic; coc, Command & Conquer: Rivals; ddd, Heroes of Dragon Age; eee, Plants vs Zombies 2: It’s About Time; fff, Star Wars: Galaxy of Heroes; ggg. The Sims Mobile; hhh, WarFriends; and iii, Such other games developed and published by the Defendants that may become known to the Plaintiff. 55. — The senior officers and directors of the Defendants were at all times fully aware of the unlawful nature of their enterprise and took active steps to carry it out. In the alternative, the senior officers and directors of the Defendants were reckless or willfully blind to the unlawful nature of their enterprise and took active steps to implement it. 56. As aresult of the Defendants’ unlawful enterprise, the Plaintiffs and Class Members have paid money to the defendants for the purpose of obtaining Loot Boxes. The Plaintiffs and Class Members have been deprived through those payments (“Takings”), and the Defendants have collectively obtained a corresponding benefit in the form of the Takings. 57. The Plaintiffs and Class Members have an interest in the funds received from them by the Defendants as a result of the Takings. 58. The Defendants have wilfully concealed the unlawful nature of their enterprise from the Plaintiffs and Class Members. 25Regulatory Enforcement 59. The use and abuse of Loot Boxes by online game publishers has been met with condemnation by regulators around the world: a. As early as 2012, the Japanese Consumer Affftirs Agency began actively enforcing its prize regulations (Law for Preventing Unjustifiable Extras or Unexpected Benefit and Misleading Representation) against online game publishers employing Loot Boxes; ‘b. In 2018, the Korea Fair Trade Commission levied US$950,000 in fines against online game publishers for deceptive Loot Boxes practic c. In 2018, the Netherlands Kansspelautoritei (Gaming Authority) and the Belgian Kansspel Commissie (Gaming Commission) began actively enforcing their gaming laws against online game publishers employing Loot Boxes; and 4. "The Parliament of the United Kingdom, the United States Congress and U.S. Federal Trade Commission have initiated inquiries into Loot Boxes. 60. At the time this action is filed, the Defendants’ misconduct continues in Canada. Part 2: RELIEF SOUGHT 61. Anorder certifying this action as a class proceeding; 62. An accounting and restitution of the benefits received by the Defendants in the full amount of the Takings; 63. In the alternative, disgorgement of the benefits received by the Defendants on account of the wrongdoing; 64, Damages under the Competition Act, s 36; 65. A declaration that the Defendants have contravened the Business Practices and Consumer Protection Act, SBC 2004, ¢ 2 (“BPCPA”), ss 4, 5, 8 and 9, the Consumer Protection 26Act, 2002, SO 2002, ¢ 30, Sch A (“Ontario CPA"), ss 14-17, and related provincial consumer protection statutes; 66. A statutory injunction under the BPCPA, s 172(1)(b) and related provincial consumer protection statutes to restrain the breaches of the BPCPA; 67. _A restoration order under the BPCPA, s 172(3), damages under the Ontario CPA, s 18, and damages or restitution under related provincial consumer protection statutes for return of the Takings; 68. A declaration that any agreement by an Underage Player for the purchase of a Loot Box is unenforceable under the Infants Act, s 19 and related enactments; 69. Statutory compensation under the Infants Act, s 20 and related enactments; 70. Interest under the Court Order Interest Act, RSBC 1996, ¢ 79; 71. Such further and other relief as this Honourable Court may deem just. Part 3: LEGAL BASIS Unjust Enrichment 72. As set out above, the Defendants have been enriched by the collection of the Takings from the Plaintiffs and Class Members. 73. The Plaintiffs and Class Members have been deprived through the payment of the Takings to the Defendants. 74, There is no juristic reason why the Defendants should have received or should retain this benefit. The Defendants’ violations of the Criminal Code, Part VII, the Gaming Control Act, SBC 2002, C-14 and related enactments, the Competition Act ss 52, 52.01 and 53 (as set out below), and the doctrine of illegality, negate any juristic reason why the Defendants should have 27received or should retain this benefit, including any contract. Any alleged contracts by which the Defendants obtained these benefits are void and unenforceable. 75, In particular, the Defendants’ conduct in selling Loot Boxes in the Affected Titles constitutes the keeping of gaming or betting houses by the Defendants contrary to s 201(1) of the Criminal Code, especially as concems the Defendants’ establishing and operation of offices, computer facilities and other physical or online infrastructure for the receipt and processing of payments for Loot Boxes in the Affected Titles. 76. Further and in the alternative, the Defendants’ conduct described herein contravenes the prohibition on betting, pool-selling, book-making and similar conduct enumerated in s 202(1) of the Criminal Code. In particular, the Defendants: a, _use or knowingly allow places under their control (including offices, computer facilities and other physical infrastructure for the receipt and processing of payments for Loot Boxes in the Affected Titles) to be used for the purpose of recording bets b. employ devices and apparatus for the purpose of recording or registering bets, and devices for gambling and betting (including the computer servers used to operate the Affected Titles and for the receipt and processing of payments for Loot Boxes in the Affected Titles); ¢. have under their control money and other property relating to transactions in breach of s 202 (including the proceeds from the sale of Loot Boxes in real or virtual curreney); d. record and register bets in respect of the Loot Boxes in the Affected Titles; e. _ arein the business of betting; and £. wilfully send, transmit, deliver and receive messages conveying information relating to betting (including their advertisements of Loot Boxes both in game, online and offline). 2877. Further and in the alternative, the Defendants’ conduct described herein constitutes engaging in the business or practice of placing or agreeing to place bets on behalf of other persons contrary to s 203 of the Criminal Code. 78, Further and in the alternative, the Defendants’ conduct described herein constitutes a scheme for the sale, barter, exchange or otherwise disposition of a lot, card, ticket or other means or device for advancing, lending, giving, selling or otherwise disposing of any property by lots, cards, tickets or any mode of chance, contrary to s-ss 206(1)(a) to (d) of the Criminal Code. 79. Further and in the alternative, the Defendants’ conduct described herein constitutes the conduct, management or participation in a scheme, contrivance, or operation by which a person, on payment of a sum or money or the giving of valuable security, shall become entitled to receive a larger sum of money or valuable security under the scheme, contrivance or operation than the sum or amount paid or given, by reason of the fact that other persons have paid or given, or obligated themselves to pay or give any sum or money or valuable security under the scheme, contrivance or operation, contrary to s-s 206(e) of the Criminal Code. 80, Further and in the alternative, the Defendants’ conduct described herein constitutes the disposition of goods, wares or merchandise by a game of chance in which the contestant or competitor pays money or other valuable consideration, contrary to s-s 206(4) of the Criminal Code. 81, Further and in the altemative, the Defendants’ conduet described herein constitutes an inducement to persons to stake or hazard money or other valuable property or thing on the result of a dice game, three-card monte or on the operation of a wheel of fortune, contrary to s-s 206(g) of the Criminal Code. 82, Further and in the alternative, the Defendants’ conduct described herein constitutes the carrying on in a public place, or a place to which the public has access, of the game of three-card monte, contrary to s-s 206(h) of the Criminal Code. 83, Further and in the alternative, the Defendants’ conduct described herein constitutes the receipt of bets on the outcome of a game of three-card monte, contrary to s-s 206(i) of the Criminal Code. 2984, Further and in the alternative, the Defendants’ conduct described herein constitutes the permission of persons to play the game of three-card monte in a place owned by the Defendants. 85. Further and in the alternative, the Defendants’ conduct described herein constitutes the operation of a “lottery scheme” contrary to s 207 of the Criminal Code. 86. Further and in the alternative, the Defendants have breached the Gaming Control Act, ‘SBC 2002, C-14 and related provincial enactments. In particular, the operation and offer for sale of Loot Boxes to the public constitutes “gaming services” and the Defendants are each “gaming services providers”. By the Defendants’ conduct described herein, and especially their failure to obtain required licensed, the Defendants have violated the Gaming Control Act, ss 94-95 and 97. 87. As a result of its actions, the Defendants have been unjustly enriched by the benefits received from the Plaintiffs and Class Members. 88. The Plaintiffs and Class Members are entitled to restitution of the benefits received by the Defendants from them in the form of the Takings. 89. In the alternative, justice and good conscience require that the Defendants disgorge to the Plaintiffs and Class Members an amount attributable to the benefits received from their unlawful Loot Box scheme. Breach of the Bu: Protection Act, 2002 jess Practices and Consumer Protection Act and the Consumer 90. The Defendants have breached the BPCPA. 91. ‘The Plaintiff Sutherland and Class Members purchased and played the Affected Titles for purposes that are primarily personal, family or household and are “consumers” within the meaning of s. 1 of the BPCPA. 92. The Affected Titles and the Loot Boxes within them are “goods” and “services” within the meaning of s. 1 of the BPCPA, 3093, ‘The Defendants are “suppliers”, within the meaning of s. 1 of the BPCPA. The BPCPA does not require privity of contract between suppliers and consumers. 94, The payment for access to or purchase of a Loot Box in each of the Affected Titles is a “consumer transaction”, within the meaning of s. 1 of the BPCPA. 95. . By the conduct set out above, the Defendants have breached ss, 4-5 and 8-9 of the BPCPA, and their actions constitute unfair and unconscionable business practices. In particular: a. Offering and operating the Loot Boxes in the Affected Titles in breach of the Criminal Code, Part VII; b. Concealing the odds for their Loot Boxes in the Affected Titles; c. Failing to have in place safeguards to prevent minors from playing Loot Boxes in the Affected Titles, 4. Making high-value items that affect gameplay available exclusively from Loot Boxes in the Affected Titles, thereby foreing players to obtain Loot Boxes are unfair and unconscionable business practices ‘The Defendants knew or ought to have known that offering and operating Loot Boxes within the A fected Titles was unconscionable. 96. In particular, the Defendants’ actions have breached inter alia the BPCPA, s 8, whether or not the factors in ss 8(3) are present in any individual case, and under s-ss 8(3)(b) and (c). 97. Specifically, the Defendants took advantage of the inability of consumers per BPCPA, s-s 8(3)(b), including the Plaintiff Sutherland and Class Members, to reasonably protect their own interests because of their ignorance or inability to understand the character or nature of the consumer transaction and the Defendants’ misconduct within it based on their total control over the service (including the Affected Titles and the operation of the Loot Boxes within them) and the lawfulness of the activity. 98. Further and in the alternative, per BPCPA, s-ss 8(3)(¢), the terms or conditions on or subject to which the Plaintiff Sutherland and Class Members entered by for the purchase of Loot 31Boxes from the Defendants were so harsh or adverse to these consumers as to be inequitable because of the inequality of bargaining power and the lack of candid disclosure by the Defendants about the lawfulness of the activity. 99. In addition, the Defendants’ actions have breached inter alia the BPCPA, s 4. Specifically, the Defendants representations in connection with the promotion of the Loot Boxes, and the omission of the odds of the Loot Boxes, breached s-ss 4(3)(b)(vi) and (e)(i). 100. As result of the breaches of the BPCPA, s 8, the consumer transactions — insofar as it implicates payments for Loot Boxes — are not binding on the Plaintiff Sutherland and Class Members per BPCPA, s. 10(1). 101. The Plaintiff Sutherland and Class Members have an interest in the funds received. from them by the Defendants on account of the Loot Boxes in the Affected Titles obtained in breach of ss 4-5, 8-9 and which are not binding per s 10(1), and they are entitled to the restoration of those amounts. The Plaintiff Sutherland and Class Members would have a right to make a claim for damages under the BPCPA, s. 171 and a claim for unjust enrichment for which the unlawful act is a breach of the Criminal Code, Part VIL. 102, As a.result of Defendants’ breaches of the BPCPA, the Plaintiff Sutherland and Class Members are entitled to a declaration under BPCPA, s 172(1)(a), an injunction under s 172(2) to restrain the conduct, and a restoration order against the Defendants, under the BPCPA, s 172)(a). 103. For the same reasons, the Defendants have breached the Ontario CPA. The Plaintiff ‘Moore and Class Members in Ontario are “consumers” within the meaning of the Ontario CPA, s 1. The Affected Titles and the Loot Boxes within them are “goods” and “services” within the meaning of the Ontario CPA. The Defendants are each a “supplier” within the meaning of the Ontario CPA. The payment for access to or purchase of a Loot Box in each of the Affected Titles is a “consumer transaction”, and involves a “consumer agreement” within the meaning of the Ontario CPA, $1 104. As set out above, by reason of the Defendants’ conduct, the Defendants have breached the Ontario CPA, ss 14-15 and 17. The Defendants’ actions constitute unfair and unconscionable 32business practices. As a result of the Defendants’ breaches of the Ontario CPA the Plaintiff ‘Moore and Class Members in Ontario are entitled to an award of damages under the Ontario CPA, s 18. The Plaintiff Moore and Class Members in Ontario further plead and rely on ss 3, 4, 6, 7, 8 of the Ontario CPA. 105, Class Members resident outside Br alia; Consumer Protection Act, RSA 2000, ¢ C-26.3; The Consumer Protection and Business Practices Act, SS 2013, ¢ C-30.2; Consumer Protection Act, CCSM ¢ C200; Consumer Protection Act, 2002, SO, c 30, Sch A; Consumer Protection Act, CQLR c P-40.1; Consumer Protection Act, RSNS 1989, ¢ 92; Consumer Protection Act, RSPEI 1988, c C-19; Consumer Protection and Business Practices Act, SNL 2009, ¢ C-31.1; Consumers Protection Act, RSY 2002, © 40; Consumer Protection Act, RSNWT 1988, ¢ C-17; and Consumer Protection Act, RSNWT 1988 (Nu), ¢ C-17; each as amended from time to time and with regulations in force at ish Columbia and Ontario plead and rely on inter material times. Breach of the Competition Act 106. The Competition Act, RSC 1985, ¢ C-34, applies to business transacted in Canada, including over the internet. 107. Digital Games, including the Affected Titles, and Loot Boxes are “products” and “services” within the meaning of the Competition Act, s. 2. 108. By the conduct set out above, the Defendants have breached ss. 52 and 52.01 of the Competition Act, and have made false or misleading representations and omissions, including the Representations, by: Offering the Loot Boxes to the public and Class Members as though they were legal when they are in fact unlawful; b. Advertising an illegal intemet gaming site, contrary to inter alia the Consumer Protection Act, 2002, 8 13.1; 33c. Failing to disclose odds of winning, as required by inter alia the Advertising and Marketing Standards for Gambling in British Columbia and the OLG Marketing and Advertising Standard (together, the “Advertising Regulations”); 4. Failing to take appropriate steps to protect minors, as required by the Advertising Regulations; e. Failing to promote responsible gaming, as required by the Advertising Regulations 109, The Defendants made these representations to the public for the purpose of promoting directly or indirectly the supply or use of Loot Boxes in the Affected Titles, and for the purpose of promoting directly or indirectly the business interests of the Defendants in the monetization of the Affected Titles, knowingly and recklessly to their material falsity. 110. In addition, the misleading representations by the Defendants regarding Loot Boxes were made by electronic message both in game and in advertising and marketing for the Affected Titles, in breach of s 53.01 of the Competition Act. 111. As a result of the Defendants’ breaches of the Competition Act, the Plaintiffs and Class ‘Members have suffered loss and damage in the form of the Takings. 112, The Plaintiffs and Class Members are entitled to recover from the defendants an amount equal to the loss or damage suffered by them in the full amount of the Takings, under the Competition Act, s 36, as well as the costs of investigation. Breaches of the Infants Act 113. Persons under the age of majority are afforded special protection in British Columbia and elsewhere in Canada, Contracts made with minors are unenforceable by operation of the Age of Majority Act, RSBC 1996, c. 7 and the Infants Act, RSBC, ¢ 223, s, 19(1) and related enactments. 114, Infants are entitled to compensation under the Infants Act, s 20 where a contract is unenforceable. 34115, The agreements by which the Defendants collected money from Underage Players on account of Loot Boxes in the Affected Titles are unenforceable under the Infants Act, s 18. 116. Class Members who are or were Underage Players during the Class Period are entitled to statutory compensation from the Defendants in the amount of the Takings. 117. Class Members rely upon parallel provisions and the common law in the other provinces and territories of Canada. Limitation Period 118. The Defendants willfully concealed the unlawfulness of their Loot Box scheme from the Plaintiffs and Class Members. The Plaintiffs and Class Members rely on the doctrine of fraudulent concealment and Pioneer Corp. v. Godfrey. 119. In addition, the Plaintiffs or Class Members could not reasonably have known that loss or damage had occurred, that it was caused or contributed to by acts of the Defendants, or that a court proceeding would be an appropriate means to seek to remedy the injury until this action was filed. 120, The Plaintiffs and Class Members rely on the doctrines of postponement and discoverability to postpone the running of the limitation period until 2020. 121, The Plaintiffs and Class Members plead and rely on and the Limitation Act, SBC 2012, ¢ 13, and in particular ss 8, 21(3). In the altemative, or in addition, the Plaintiffs and Class ‘Members rely on the Limitation Act, SBC 2012, c 13, s 30 and the Limitation Act, RSBC 1996, ¢ 266. In addition, the Plaintiffs and Class Members plead and rely on the Emergency Program ‘Act, Ministerial Order No. M089 and related enactments to suspend the running of the limitation period from March 26, 2020. Service 122. The Plaintiff and Class Members have the right to serve this Notice of Civil Claim on the Defendants pursuant to the Court Jurisdiction and Proceedings Transfer Act, SBC 2003, ¢ 35,28, s 10 (CJPTA), because there is a real and substantial connection between British Columbia and the facts on which this proceeding is based. 123. The Plaintiffs and Class Members rely on the following grounds, in that this action concems: a, restitutionary obligations that, to a substantial extent, arose in British Columbia (CIPTA, s 10(f)); >. a tort committed in British Columbia (CJPTA, s 10(g)); and ©. abusiness carried on in British Columbia (CJPTA, s 10(h)). Plaintiffs’ address for service: Slater Vecchio LLP 1800 - 777 Dunsmuir Street Vancouver, BC V7Y 1K4 Place of trial: Vancouver, BC ‘The address of the registry is: 800 Smithe Street Vancouver, BC V6Z2E1 Date: September 30, 2020 * Slater Vecchio LLP” Signature of lawyer for plaintiffs Mathew P. Good Anthony Vecchio QC Co-Counsel for the Co-Counsel for the Plaintiffs Plaintifis Good Barrister Slater Veechio LLP 36Rule 7-1 (1) of the Supreme Court Civil Rules states: (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, (@ prepare a list of documents in Form 22 that lists @ all documents that are or have been in the party's possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and ii) all other documents to which the party intends to refer at trial, and (b) serve the list on all parties of record. 37ENDORSEMENT ON ORIGINATING PLEADING OR PETITION FOR SERVICE OUTSIDE BRITISH COLUMBIA ‘The PlaintiffS claim the right to serve this pleading on the Defendant ELECTRONIC ARTS INC. outside British Columbia on the ground that the Court Jurisdiction and Proceedings Transfer Act, SBC 2003, ¢ 28, s 10 (CJPTA) applies because there is a real and substantial connection between British Columbia and the facts on which this proceeding is based. The Plaintiffs and Class Members rely on the following grounds, in that this action concerns: a, restitutionary obligations that, to a substantial extent, arose in British Columbia (CIPTA, s 10(8); b. a tort committed in British Columbia (CJPTA, s 10(g)); and ¢. abusiness carried on in British Columbia (CJPTA, s 10(h)). 38Appendix [The following information is provided for data collection purposes only and is of no legal effect Part 1: CONCISE SUMMARY OF NATURE OF CLAIM: This is a proposed class proceeding regarding loot boxes in video games. Part 2: THIS CLAIM ARISES FROM THE FOLLOWING: [Check one box below for the case type that best describes this case.] A personal injury arising out of: [ ]amotor vehicle accident [ ] medical malpractice [x] another cause A dispute conceming: [ ] contaminated sites [ ] construction defects [ ] real property (real estate) [ ] personal property [ ] the provision of goods or services or other general commercial matters [ ] investment losses [ ] the lending of money {J an employment relationship [J awill or other issues concerning the probate of an estate [ ]amatter not listed here 39Part 3: THIS CLAIM INVOLVES: [Check all boxes below that apply to this case] [x] aclass action [| maritime law [J aboriginal law [ ] constitutional law [ J conflict of laws [ ] none of the above [ ] donot know Part 4: Limitation Act, SBC 2012, ¢ 13 Court Order Interest Act, RSBC 1996, ¢ 79 Competition Act, RSC 1985, ¢ C-34 Business Practices and Consumer Protection Act, SBC 2004, ¢ 2 40