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Carlsen v. GameStop, Inc.

United States Court of Appeals for the Eighth Circuit

March 15, 2016, Submitted; August 16, 2016, Filed

No. 15-2453


 [*906]  GRUENDER, Circuit Judge.

Matthew Carlsen, individually and purportedly on behalf of others similarly situated, brought claims against GameStop, Inc. and Sunrise Publications, Inc. (collectively, "GameStop") for breach of contract, unjust enrichment, money had and received, and violation of Minnesota's Consumer Fraud Act (CFA), Minn. Stat. §§ 325F.68, et seq.,  [*907]  for GameStop's [**2]  alleged disclosure of personal information to a third party in violation of an express agreement not to do so. GameStop filed a motion to dismiss Carlsen's complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6). The district court1 granted the motion to dismiss for lack of subject-matter jurisdiction, finding that Carlsen lacked standing. We affirm the district court on the basis that Carlsen's complaint failed to state a claim upon which relief can be granted.

Matthew Carlsen is a user of print and online materials published by GameStop, including Game Informer Magazine. Game Informer Magazine offers news, reviews, and commentary about the video-game industry. Registered subscribers can access digital versions of the magazine through a website,, where they also can manage their subscriptions and access enhanced content and message boards. Carlsen paid a one-year subscription fee of $14.99 for access to the magazine and enhanced content. The terms of service for the online subscription include Game Informer's privacy policy. The policy, [**3]  in turn, includes a provision stating that, with certain exceptions, "Game Informer does not share personal information with anyone." According to Carlsen, a user must agree to the terms of service and, thus, the privacy policy, in order to purchase subscription access.

In his complaint, Carlsen alleged that GameStop shared his personally identifiable information ("PII") with Facebook in violation of the privacy policy. He alleged that GameStop shared this information through the Game Informer website, which includes features that allow Game Informer users to log in to the website using their Facebook accounts and to use Facebook's "Like," "Share," and "Comment" functions through the Game Informer site. Game Informer provides these features by adding a Facebook Software Development Kit ("SDK") to the source code on the Game Informer website. Carlsen alleged that this SDK transmitted a user's unique Facebook ID and Game Informer browsing history to Facebook if the user previously had opted to stay logged in to Facebook.

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833 F.3d 903 *; 2016 U.S. App. LEXIS 14999 **

Matthew Carlsen, individually and on behalf of all others similarly situated, Plaintiff - Appellant v. GameStop, Inc., a Minnesota corporation; Sunrise Publications, Inc., doing business as Game Informer, a Minnesota corporation, Defendants - Appellees

Prior History:  [**1] Appeal from United States District Court for the District of Minnesota - Minneapolis.

Carlsen v. GameStop, Inc., 112 F. Supp. 3d 855, 2015 U.S. Dist. LEXIS 72297 (D. Minn., 2015)


district court, privacy, subscription, user, injury in fact, pleadings, subject matter jurisdiction, allegations, disclosure, damages, website, breach of contract, term of service, facial attack, subject-matter, motion to dismiss, unjust enrichment, subscribers, browsing, disclose, promise

Civil Procedure, Appeals, Standards of Review, De Novo Review, Jurisdiction, Subject Matter Jurisdiction, Jurisdiction Over Actions, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Standards of Review, Motions to Dismiss, Failure to State Claim, Constitutional Law, The Judiciary, Case or Controversy, Standing, Governments, Courts, Authority to Adjudicate, Justiciability, Standing, Injury in Fact, Elements, Business & Corporate Compliance, Breach, Breach of Contract Actions, Elements of Contract Claims, Preliminary Considerations, Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Torts, Business Torts, Unfair Business Practices, Dismissal, Involuntary Dismissals, Failure to State Claims, Pleading & Practice, Pleadings, Complaints, Questions of Fact & Law, Contracts Law, Contract Interpretation, Contract Interpretation, Ambiguities & Contra Proferentem, Contracts Law, Nonperformance, Breach of Contract Actions, Remedies, Equitable Relief, Quantum Meruit, Types of Contracts, Quasi Contracts, Money Had & Received