• by Wendy Davis  @wendyndavis, September 23, 2022

Online gamers who sued Apple, Google and Facebook over gambling apps are urging a federal appeals court to reject the companies' request to immediately review a trial judge's decision allowing the case to move forward.

In papers filed Friday with the 9th Circuit Court of Appeals, counsel for the gamers argues that the trial judge's ruling to allow the case to proceed “faithfully applies this court’s settled precedent.”

The lawyers add that the tech companies haven't raised “any novel issue deserving of early review.”

The gamers' arguments come in a dispute dating to October of 2020, when gamers in several states sued tech companies for allegedly promoting illegal gambling by distributing gaming apps, allowing users to make in-app purchases of virtual currency, and garnering a portion of revenue.

Google, Apple and Facebook urged U.S. District Court Judge Edward Davila in the Northern District of California to dismiss the matter before trial, arguing that Section 230 immunizes them from liability for distributing content created by other businesses.

Davila rejected that argument, ruling that Section 230 did not protect the tech companies from claims stemming from alleged revenue sharing.

But the judge also said at the time that “reasonable minds could differ,” and allowed Google, Apple and Facebook to ask the 9th Circuit to review the case immediately.

The move was unusual, given that appeals courts don't typically review lawsuits over monetary damages until after cases have concluded in the trial court.

The tech companies sought appellate review earlier this month, essentially arguing that Davila's ruling effectively requires them to review material created by outside developers before allowing them to use a payment processing tool. 

Counsel for the gamers counters that the 9th Circuit said in other cases -- including one brought by family members of a terrorist victim -- that Section 230 might not protect tech companies from claims related to revenue sharing.

The 9th Circuit hasn't yet indicated whether it will hear the case.