Class Action Filed Against Zynga for Data Breach

SUMMARY

Despite some plaintiffs seeing potential benefits in bringing filing mass arbitrations, plaintiffs are still trying to attack terms of service to maintain class actions.

THE SETUP

On March 3, 2020, a putative class action was filed in the Northern District of California (I.C., et. al. v. Zynga, Inc., Case No. 3:20-cv-01539) against Zynga for claims related to a data breach Zynga reported in September 2019. In December 2019, Have I Been Pwned , a data breach monitoring site, stated that over 172 million accounts had been compromised. The main allegations against Zynga are that the breach resulted from Zynga’s negligence and that Zynga failed to properly notify its users of the breach.

THE PUTATIVE CLASS AND MINORS

The complaint seeks certification of a national class of individuals who were affected by the breach with two subclasses split between adults and minors. With regards to the minors, plaintiffs allege that Zynga is well-aware that “a substantial portion of its user base has historically been, and continues to be comprised of minors, and Zynga has profited handsomely from that user base over the years.” While not mentioning the Children’s Online Privacy Protection Act (COPPA) directly, Plaintiffs assert a claim of intrusion upon seclusion for the minor subclass, much like several previous COPPA-related class actions filed against entertainment companies like Viacom, Disney, and Kiloo. Because COPPA does not provide a private cause of action, the plaintiffs in the previous cases tied the alleged COPPA violations to other privacy rights. Plaintiffs also argue that minors are disproportionately damaged by data breaches and that minors are not bound to the Zynga Terms of Service and Privacy Policies.

ARBITRATION

In arguing for a subclass for minors, Plaintiffs are presumably trying to avoid the arbitration clauses and class action waivers found in Zynga’s Terms of Service. It’s worth noting that some plaintiffs’ attorneys have taken to mass arbitration filings in response to class action waivers. Zynga’s arbitration clauses state that it will advance all filing, administrative, and arbitration costs and expenses if the relief sought is less than $10,000. If even a small fraction of the reportedly 172 million account holders were to file for arbitration over the claims, Zynga could be forced to advance millions of dollars in filing fees and those fees are only recoupable by Zynga if the arbitrator were to find the claim frivolous.