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Santana v. Take-Two Interactive Software, Inc.

United States Court of Appeals for the Second Circuit

November 21, 2017, Decided

No. 17-303

Opinion

 [*13]  SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED with the instruction that the court shall amend its judgment and enter dismissal without prejudice.

Plaintiffs-Appellants Ricardo Vigil and Vanessa Vigil appeal from a final judgment dismissing their second amended complaint ("SAC") with prejudice, entered on January 30, 2017, by the United States District Court for the Southern District of New York (Koeltl, J.). We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.

Defendant-Appellee Take-Two Interactive Software, [**2]  Inc. is a publisher, developer, and distributor of video games, including "NBA 2K15" and "NBA 2K16." The NBA 2K15 and NBA 2K16 games contain a feature called "MyPlayer," which allows gamers to create a personalized basketball player that has a realistic 3-D rendition of the gamer's face, also known as an "avatar." If a gamer chooses to play with the avatar in the games' online, "multiplayer" mode, then other players who participate in the same multiplayer match will see the rendition of the gamer's "face" during gameplay.

To create a MyPlayer avatar, a gamer must first agree to the following terms and  [*14]  conditions, which are presented on the viewer's television screen or monitor:

Your face scan will be visible to you and others you play with and may be recorded or screen captured during gameplay. By proceeding you agree and consent to such uses and other uses pursuant to the End User License Agreement. www.take2games.com/eula.

App. 23. Only after viewing this screen and pressing "continue" can a gamer access the MyPlayer feature. Id.

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717 Fed. Appx. 12 *; 2017 U.S. App. LEXIS 23446 **; 2017 WL 5592589

HADIT SANTANA, Plaintiff, VANESSA VIGIL, RICARDO VIGIL, Plaintiffs-Appellants, v. TAKE-TWO INTERACTIVE SOFTWARE, INC., Defendant-Appellee.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] Appeal from a final judgment of the United States District Court for the Southern District of New York (Koeltl, J.).

Vigil v. Take-Two Interactive Software, Inc., 235 F. Supp. 3d 499, 2017 U.S. Dist. LEXIS 12295 (S.D.N.Y., Jan. 27, 2017)

CORE TERMS

biometric, scan, district court, procedural violation, gamer's, identifiers, plaintiffs', collected, geometry, violations, parties, confer, cause of action

Civil Procedure, Appeals, Standards of Review, De Novo Review, Constitutional Law, Case or Controversy, Standing, Elements, Questions of Fact & Law, Business & Corporate Compliance, Computer & Internet Law, Privacy & Security, State Regulation, Justiciability, Injury in Fact, Dismissal, Involuntary Dismissals, The Judiciary, Standing, Jurisdiction, Subject Matter Jurisdiction, Jurisdiction Over Actions, Governments, Legislation, Interpretation, Preliminary Considerations