Pokémon Go Class Action Says App is Nuisance for Property Owners

A man from New Jersey says the Pokémon presence in his backyard is a nuisance that Nintendo and its related companies are liable for.

Plaintiff Jeffrey Marder is bringing a Pokémon class action lawsuit against defendants Nintendo, Niantic Inc. and The Pokémon Company.

Marder claims the game Pokémon Go, a mobile device app created by those companies, has directed an influx of strangers to bother him at his home and ask to play the game on his private property.

According to the Pokémon Go class action lawsuit, playing Pokémon Go requires a player to wander around the real world seeking physical locations where the app tells them fantasy creatures called Pokémon are lurking.

Once the player comes close to one of these physical locations, they can “catch” the Pokémon by swiping its image across their phone’s screen.

Immediately after its release, Pokémon Go was a huge success, Marder says. From its July 6 release date through July 23, he claims it has been downloaded more than 30 million times and has generated over $35 million in revenue.

Marder argues the defendants owe some of that revenue to individuals like himself who are living with the alleged nuisance of strangers hunting Pokémon on their private property.

The plaintiff says that within days of Pokémon Go’s release, he noticed strangers gathering outside his home in West Orange, N.J., looking at the scene around them through their smartphones. During that first week, he says, at least five persons knocked on his door and asked for permission to catch Pokémon in his backyard.

Marder also quotes a series of tweets by a Massachusetts man who lives inside an old church that had been designated a Pokémon Go gym. By mid-afternoon that day, the man tweeted that he had counted 15 people stopping by and lingering outside his residence, plus three car visits.

He argues the app’s developers are designating Pokéstops and Pokémon gyms on or adjacent to what is clearly private property, in a way that deprives the owners of their rightful use and enjoyment of the property.

The plaintiff further notes that three Pokéstops were found inside the United States Holocaust Memorial Museum in Washington, D.C.

Niantic is already facing another Pokémon Go lawsuit over the issue of user privacy. The plaintiff in that lawsuit says that the Pokémon Go terms of service claim extremely broad rights to collect users’ data, without giving those users adequate notice of what rights they’re giving up.

In Marder’s Pokémon class action lawsuit, he seeks to represent a plaintiff Class consisting of all persons who own property in the U.S. that was either designated as a Pokéstop or Pokémon gym in the Pokémon Go app or that abuts other property so designated.

He seeks a court order forbidding the defendants from continuing to involve his and the Class Members’ private property in the Pokémon Go app. He also seeks an award of damages and disgorgement of profits, plus pre-judgment and post-judgment interest, attorneys’ fees, and costs of litigation.

The plaintiff is represented by attorneys Jennifer Pafitti, Jeremy A. Lieberman, J. Alexander Hood II, and Patrick V. Dahlstrom of Pomerantz LLP.

The Pokémon Go Nuisance Class Action Lawsuit is Jeffrey Marder v. Niantic Inc., The Pokémon Company, and Nintento Co. Ltd., Case No. 4:16-cv-04300, in the U.S. District Court for the Northern District of California.

UPDATE: On Jan. 27, 2017, in separate motions for dismissal, defendants in a consolidated Pokémon Go class action lawsuit argued they can’t be held responsible for the behavior of Pokémon Go players who are not under their control.

UPDATE 2: On Feb. 14, 2019, the owners of Pokemon promise to discourage Pokemon Go users from trespassing, as part of a class action settlement.