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Gaming Client Victorious in Groundbreaking Lawsuit to Protect Employees from Targeted Online Threats



Miller Nash’s litigation team assisted Bungie, an American videogame studio, in obtaining a judgment for almost $500,000 against a West Virginia resident who had been viciously harassing its employees, along with a permanent injunction to prevent such harassment in the future. In doing so, Miller Nash and Bungie helped to confirm employers’ right under Washington law to recover damages for having taken action to protect their employees from harassment.

The case sprang from Bungie’s “My Destiny 2 Story” series that highlighted community members’ contributions to the Destiny 2 community. The defendant’s campaign of targeted harassment began immediately after one of Bungie’s community managers highlighted the work of UhMaayyze, a talented Black creator of Destiny 2 fan works. Believing himself to be anonymous and untraceable, the defendant decided to inundate the community manager and his wife (both Bungie employees) at their personal phone numbers with disturbing and racist voice and text messages, and escalated to having a pizza delivered cash on delivery to their home to prove to them that he knew where they lived. The employees were legitimately frightened by that escalation.

Bungie provided its employees with executive protection within an hour of that “pizza attack” and set to work unmasking the harasser. After analyzing the forensic data and obtaining a Canadian court order to obtain phone records, Bungie was able to ascertain the harasser’s identity. While that gave Bungie’s employees the right to obtain protection orders against the harasser—which they did with Bungie’s help—it was uncertain whether Bungie could ever recover for its own considerable expenses for tracking down the perpetrator and protecting its personnel.

Miller Nash partner Brian Esler, along with summer associate Michael Zangl, worked with Bungie’s in-house legal team and other outside counsel to craft a complaint that might bring Bungie relief. Bungie sued in the summer of 2022 and Miller Nash helped the company obtain an immediate interim injunction to prevent any further harassment during the course of litigation. Almost one year later, Bungie moved for judgment against the harasser, seeking to recover all of Bungie’s investigative and protective expenses. The Court agreed with Bungie’s arguments and found it could recover those damages (and its attorneys’ fees) under several established legal theories.

But the Court also recognized that some of those theories were an uneasy fit, and that there was little case law addressing whether an employer could recover for expenses incurred to protect its employees. Thus, the Court agreed that “even if none of the [pleaded] causes of action provided a basis for damage recovery where a malicious actor damages a company by intentionally targeting the company’s employees with harassment and threats, the Court would exercise its authority to recognize a new common law tort that does.” The Court acknowledged that “it is unlikely that any individual employees who are subject to such anonymous harassment would have the resources available to uncover the harasser, much less put a stop to it—which is exactly what such anonymous cyberstalkers rely on in continuing their campaigns.” By allowing Bungie to recover damages for stopping such harassment, the Court sought to “give teeth to Washington’s expressed public policy outlawing such harassment and to encourage other employers to take similar steps when their employees are anonymously harassed online or over the phone.” The Court then awarded Bungie $405,189.22 in recoverable damages, $83,806.30 in attorneys’ fees, and a permanent injunction against the harasser.

In pursuing this lawsuit, Bungie recovered much more than just damages. As described by Bungie’s General Counsel Don McGowan, when Bungie employees learned of the judgment, “people were stopping us all day … to thank us for doing this.” And we thank Bungie for giving us the opportunity to help the company pursue this groundbreaking case all the way to judgment.

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