BARBARA MILANO KEENAN, Circuit Judge:
Mia Mason, a Maryland resident, filed a class action complaint against Machine Zone, Inc. (Machine Zone), the developer of a mobile video game entitled "Game of War: Fire Age" (Game of War), pursuant to Federal Rule of Civil Procedure 23(b)(3). In her complaint, Mason asserted a claim under Maryland's gambling loss recovery statute (the Loss Recovery Statute), Md. Code Ann., Crim. Law § 12-110.
The district court dismissed Mason's complaint under Federal Rule of Civil Procedure 12(b)(6). The court concluded that Mason did not "lose money" when she "spun" the virtual wheel and that, therefore, she had failed to state a claim under the Loss Recovery Statute. The court similarly dismissed Mason's claims under the California Penal Code and the UCL, as well as her claim of unjust enrichment. Mason appeals only from the court's dismissal of her claim under the Loss Recovery Statute. Upon our review, we affirm the district court's judgment.
Machine Zone developed and operates Game of War, a popular video game that can be "downloaded" without charge on various mobile devices.
Players also can use their virtual gold to obtain virtual "chips" for use during one facet of the game called the Game of War casino (virtual casino, or Game of War casino). The virtual casino is a game of chance in which players can use their virtual chips for an opportunity to obtain virtual prizes for use within Game of War, by "spinning" a virtual wheel. When a player interacts with the virtual casino for the first time, she is entitled to one free spin of the virtual wheel. However, after the player uses her first free spin, she must use at least 5,000 virtual chips for each additional spin. If a player does not have enough virtual chips to spin the virtual wheel, the player must use virtual gold to obtain additional virtual chips.
When a player spins the virtual wheel, an "animated light" rotates around the wheel and, after a few seconds, the light stops on a picture of a virtual prize. The virtual prizes include virtual "resources" such as "wood" or "stone," which players can use to advance their position in the
Players who spin the virtual wheel have no control over the outcome of the spin and, thus, no skill on the part of the player influences what virtual prize the player will receive. Instead, the outcome of any given spin is determined by the factors that Machine Zone has programmed into the computer software governing the virtual casino. Machine Zone has "programmed the odds" of the virtual wheel to make it more likely that a player will receive "basic items," such as virtual resources, rather than virtual treasure chests, gold, and chips.
A player who accumulates a substantial number of the most coveted virtual prizes, such as virtual gold, can list her Game of War account for sale on a "secondary market." The number and desirability of virtual prizes a player has acquired influence the cash value of the player's account on the secondary market. Players sell their accounts on eBay, Facebook, and other websites for hundreds, and sometimes thousands, of dollars. However, under Machine Zone's terms of service governing the use of Game of War, "Virtual Currency and Virtual Goods may never be redeemed for `real world' money, goods or other items of monetary value from Machine Zone or any other person."
Mason began playing Game of War on her mobile device in early 2014. After using complimentary virtual chips for a chance to win a virtual prize at the Game of War casino, Mason began purchasing virtual gold in order to obtain more chips to continue interacting with the casino function. Between early 2014 and January 2015, Mason paid over $100 to participate in the virtual casino.
In seeking damages under the Loss Recovery Statute, Mason alleged that she lost money playing an unlawful "gaming device," namely, the Game of War casino, and sought "full disgorgement and restitution of any money [Machine Zone] has won" from Mason and from other Maryland residents who have lost money playing in the virtual casino. The district court concluded that Mason had failed to state a claim under the Loss Recovery Statute because "she did not lose money" in the virtual casino. The court similarly rejected Mason's assertion that her complaint stated claims under the California Penal Code, the UCL, and the theory of unjust enrichment. The court accordingly dismissed Mason's complaint in its entirety.
Mason argues that the district court erred in dismissing pursuant to Rule 12(b)(6) her claim under the Loss Recovery Statute. She contends that she lost money while playing in the virtual casino, which she asserts is an unlawful "gaming device" within the meaning of the Loss Recovery Statute. Mason maintains that she lost money in the virtual casino because, after paying money to "spin" the virtual wheel, she "`won' prizes that were worth less than the amount of money she spent to spin the wheel." Therefore, according to Mason, she is entitled to recover the difference between the amount of money she paid to spin the virtual wheel, and the monetary value of the virtual prizes she won. We disagree with Mason's arguments.
As directed by the Maryland legislature, our review of a claim under the Loss Recovery Statute requires us to interpret Maryland's gambling statutes in a manner that "give[s] validity not only to the word, but to the spirit of the law." F.A.C.E. Trading, Inc. v. Todd, 393 Md. 364, 903 A.2d 348, 355 (2006) (quoting Gaither v. Cate, 156 Md. 254, 144 A. 239, 240 (1929)) (citing Md. Code Ann., Crim. Law § 12-113). Thus, we must construe liberally the Maryland statutes addressing various gambling activities to prevent the unlawful conduct that the Maryland legislature intended to proscribe. Id. at 356 (citation omitted).
For purposes of this appeal, we assume, without deciding, that the virtual casino is a prohibited "gaming device." See Md. Code Ann., Crim. Law § 12-101(d). We agree with the district court's conclusion that Mason did not "lose money" when participating in the virtual casino and that, therefore, she failed to satisfy a required element for stating a claim under the Loss Recovery Statute. See id. § 12-110(a).
Initially, we observe that the requirement in the Loss Recovery Statute that a person "lose money" suggests that a claim cognizable under the Statute also involves a winner of the money that Mason seeks to recover. See Cates v. State, 21 Md.App. 363, 320 A.2d 75, 80 (1974) (noting that predecessor to Loss Recovery Statute encompassed a public policy "not to help one who loses at gambling, but to discourage illegal gambling by putting the winner on notice that the courts will ... force him to disgorge his winnings"). However, if Mason received in the virtual casino "resources" of lesser "value" than virtual gold, as she claims she did, Machine Zone did not win money as a result. Nor did Machine Zone lose money if Mason "spun" the virtual wheel and received any particular prize. Indeed, Machine Zone retained the money that Mason paid to obtain virtual gold regardless of the outcome of Mason's spin of the virtual wheel.
Instead of losing money in the virtual casino, Mason paid money to obtain virtual gold, which she later used to accrue virtual chips, all while playing Game of War on her mobile device. Later, when Mason participated in the virtual casino, she used only virtual chips, which are not redeemable for money. Thus, when Mason "spun" the virtual wheel, there was no money at stake. Rather, as a result of that action, she only could receive either virtual gold, which she concedes does not amount to money, or she could receive other virtual resources that likewise were not money or redeemable for money. Accordingly, based on the manner in which the Game of War casino operates, Mason could not have lost or won money as a result of her participation in that virtual activity.
While we must liberally construe Maryland's statutes relating to gambling, see Md. Code Ann., Crim. Law § 12-113; F.A.C.E. Trading, 903 A.2d at 355, we nevertheless are required to interpret unambiguous
Our conclusion is not affected by Mason's contention that because Game of War participants can sell their accounts in a "secondary market," "money" is at stake when a player "spins" the virtual wheel in the virtual casino. Virtual gold and virtual chips are not sold on the secondary market and, therefore, are not equivalent to money.
Accordingly, we hold that the district court correctly concluded that Mason did not "lose money" within the meaning of the Loss Recovery Statute as a result of her participation in the Game of War casino. See Md. Code Ann., Crim. Law § 12-110. Therefore, as the district court ultimately held, Mason failed to state a claim under Maryland's Loss Recovery Statute.
For these reasons, we affirm the district court's judgment.