Michael Andolina and Markus Funk, partners at the legal firm White & Case, have detailed how gaming companies can fight against the wave of ‘addiction design’ lawsuits. 

These kinds of complaints are likely to increase in the wake of the social media verdict that awarded $6 million to a woman who claimed Google and Meta intentionally makes its users addicted to their platforms. 

Gaming companies, including Microsoft, Valve, Roblox, Epic Games, and others, have been hit with the same arguments. Three copycat lawsuits were filed in California earlier this month, alleging Epic Games and Roblox intentionally make users addicted to their games. 

The plaintiffs, all young men, claim they began playing video games when they were young children and became addicted to the point that they are now unable to control their playing time and the amount of money they spend on the platforms. 

Social Media Verdict Provided Framework Of Attack

“We see the social media verdicts as providing the plaintiffs’ bar with what it, for better or worse, vies as its first meaningful ‘proof of concept,’” Funk and Andolina told me this week. “Those verdicts are already appearing in claimant-recruitment materials; plaintiffs’ firms believe this is the time to move from ‘ones and twos’ lawsuits to class action and mass tort actions.”

With a judge in California awarding the social media ‘victim’ $6 million, legal firms are chasing paydays from gaming and gambling companies. 

“The objective reality is that plaintiffs’ counsel here, as in other litigation waves, seek to monetize the gap between public sympathy and existing legal doctrine,” Funk and Andolina added. “There is therefore undoubtedly a commercial incentive for plaintiffs’ firms to pursue these cases at scale, and the mass tort model is designed to generate volume.”

“Moreover, the growth of litigation funding, AI-driven claimant recruitment, and the ability to aggregate claims across jurisdictions are among the structural factors potentially accelerating this litigation,” said the lawyers. 

Arguments Against Gaming Companies

The main arguments that legal firms are likely to bring against companies include:

• Addictive design/defective product. Central features of games or gambling platforms will be shown to be “engineered drivers of harm.”  Plaintiffs argue these features are calibrated to override user autonomy and maximize spending.
• Negligence/failure to warn. Plaintiffs allege that platforms knew or should have known about the addictive potential of their designs and failed to implement adequate safeguards or warnings.
• Internal knowledge. A recurring strategy is to use discovery to surface internal documents that can be framed as showing the company was aware of and exploited user vulnerability.
• Analogies to social media. Plaintiffs draw direct parallels to the social media cases, arguing that algorithmically curated engagement and behavioral manipulation are functionally identical across platforms.
• Targeting of underage users. Plaintiffs will allege predatory marketing and direct recruitment of minors, suggesting platforms actively target teens using influencer-driven marketing on social media.

How Companies Can Refute The Arguments

According to Funk and Andolina, some of the main arguments companies can use to refute these arguments include:

• Regulatory compliance and preemption. Gambling operators function within comprehensive licensing and compliance frameworks. Courts have been reluctant to impose additional common-law duties where a statutory scheme already governs. This, from the gambling company perspective, is considered a strategic differentiator between them and social media defendants.
• No-duty doctrine.  Courts have held that the duties owed by licensed operators are defined by statute, not by expansive negligence theories. This reality could present opportunities for early dismissal.
• Causation challenges. Defendants argue that gambling behavior is multifactorial, involving personal psychology, life circumstances, and individual risk tolerance, and that plaintiffs cannot establish that platform design, rather than autonomous individual choice, caused the harm.
• Assumption of risk. Adult gamblers have always known that they are engaging in an activity with well-known risks. Therefore, each wager, especially with real-time loss information and access to self-exclusion tools, constitutes evidence of voluntary, informed participation.
• Alternative design challenge. Plaintiffs will have to identify a feasible alternative design that preserves the essential nature of gambling while eliminating losses. This is a significant doctrinal hurdle for the plaintiff to overcome.
• Offensive litigation. Affirmative countermeasures may include defamation claims, tortious interference claims, and unfair competition actions targeting fabricated medical assertions in claimant-recruitment advertising.

For gaming companies, they may face tougher challenges in fighting these lawsuits than gambling companies. For example, betting operators cater to adults and can claim that they are responsible for their own behavior. 

Many lawsuits against gaming companies allege that the developers are targeting minors, who have not developed the skills to control their own behavior. While gambling may be viewed as an activity that has inherent dangers and carries responsible gambling messages, games may be viewed as harmless fun. 

The Product Is Engaging, Not Defective

While the personal responsibility argument may be more difficult for a gaming company to make when its users are children, it can claim that its products are designed to engage users, rather than harm them. It is a fine line. 

“The legal system is being asked to draw a line between legitimate product optimization and exploitative design, and between individual autonomy and corporate responsibility,” said Andolina and Funk. 

In gambling lawsuits against operators such as DraftKings and FanDuel, as well as legal actions against gaming companies, where judges draw the line will have wide-reaching implications, “potentially affecting how courts treat any product or service designed to maximize user engagement,” said the lawyers.