Canada judge Judge Justice Fleming said that a plaintiff’s claim that loot boxes in EA games constitutes ‘unlawful gaming’ was “bound to fail” but will allow the class-action lawsuit to move forward, according to GamesIndustry.biz.

Per the report, the lawsuit will proceed based on the accusation that loot boxes in EA games may have adopted “deceptive acts or practices”.

In the lawsuit, Mark Sutherland, the plaintiff, has accused Electronic Arts (EA) of “deceptive and unconscionable acts or practices” under British Columbia’s Business Practices and Consumer Protection Act and brought the claim on behalf of all residents in British Columbia who have paid for loot boxes in over 70 EA games since 2008.

Part of the suit alleges that by selling loot boxes, Electronic Arts (EA) has ‘engaged in unlawful gaming or gambling’ which is in breach of ‘multiple offences in Part Seven of the Criminal Code’, and while Fleming decided that Sutherland’s claim around ‘deceptive acts and practices’ may proceed, the part of the suit centered on gambling would not proceed.

Now, Sutherland has leave to amend his notice against Electronic Arts (EA), but can not “as it relates to allegations of unlawful gaming”.

“Consequently, there is no prospect of gaining, or losing, anything with a real-world value through the defendants’ in-house auctions,” Judge Fleming said. “Unlike a casino chip, virtual currency and virtual items in loot boxes can never be ‘cashed out’ to gain money.

“Given that wagering or a bet must involve the chance of winning or losing real money or money’s worth, in my view, only the allegation of purchasing and selling virtual items through third-party marketplaces could support this element” the judge continued.

“However, this allegation is unrelated to the pleading that identifies the game as the loot box and the bet or wagering as the purchase and opening of a loot box. In other words, the transaction that grounds the unlawful gaming allegation and the wagering element is the initial loot box purchase and opening.

“In any event, as the defendants emphasize, the allegation of purchasing and selling loot box items through third-party marketplaces is entirely disconnected from the class members. The same is true of the defendants. There is no pleading that class members purchased the defendants’ loot boxes for the purpose of purchasing and selling virtual items through third-party marketplaces, let alone participated in third-party marketplaces. Nor is it suggested that the defendants published, promoted, distributed or sold them for any purpose related to these marketplaces. Of course it is the defendants, not class members, who are alleged to have engaged in unlawful gaming.”

Judge Fleming concludes that the argument has “no reasonable prospect of success” but added that “A central focus of Mr Sutherland’s pleading from the outset and yet fundamentally defective both factually and legally, I would not grant leave to amend this aspect of the claim. Recognizing my gate-keeping function at this stage of the proceedings, I view striking this aspect of the claim as in the interests of effective and fair litigation.”

Electronic Arts (EA) has since responded in an official statement: “We’re pleased that the trial court rejected, as a matter of law, the allegations of unlawful gaming. The court’s decision reaffirms our position that nothing in our games constitutes gambling.”