Valve Corporation Gets Steamed By Own Subscriber Agreement And Is Dismissed On UPEPA Special Motion In Washington Case

Forbes

28-07-2025

Anti-SLAPP Laws Protect Free Speech.
Steam is an online platform that allows the developers of video games to sell their games to users. Stream is owned by Valve Corporation. To participate in the Stream platform, the users must first agree to something called the "Stream Subscriber Agreement" also known as the "SSA". Among other things, the SSA provides that if a dispute arises between Valve and a user, the user may not file a lawsuit or participate in a class action, but instead must go to individual binding arbitration.
Enter Bucher Law PLLC and AFN Law PLLC, which are law firms that apparently rounded up a bunch of the users to make individual claims against Valve for Valve's alleged anticompetitive practices. Following the terms of the SSA, these law firms would send a letter on behalf of each of their user clients to Valve make a claim for damages from the alleged anticompetitive practices and also proposing settlement terms.
At first, Valve complained that the user complaints filed by the law firm were not particularized to each user, lacked necessary information for each user, and were not sent in good faith. The law firms then responded to Valve with individualized emails for each of their clients. When Valve did not settle within 30 days after receiving these complaints, then invoking the SSA the law firms initiated arbitration proceedings for each of their user clients.
Not happy with all these claims and arbitration proceedings, Valve decided to sue the law firms (henceforth referred to as the "Bucher Defendants") in the Washington state court for wrongfully interfering with Valve's relationships with their users and for abuse of process.
Faced with Valve's SLAPP lawsuit, the Bucher Defendants then filed a special motion to dismiss Valve's claims under the Washington Uniform Public Expression Protection Act ("UPEPA"). Hearing the special motion, the trial court held that Valve had alleged sufficient facts to establish its claims and that a statutory exception applied to allow Valve to proceed with litigation against the Bucher Defendants. The Bucher Defendants then appealed the trial court's decision and this lead to the opinion in Valve Corp. v. Bucher Law PLLC, 2025 WL 1792620 (Wash.App., June 30, 2025), which is the subject of today's article.
The first issue that came up was whether the Bucher Defendants could immediately appeal the trial court's denial of their UPEPA special motion. Valve of course claimed that they could not, citing the normal Washington appellate rule preventing appeals of motions to dismiss. The problem for Valve is that the UPEPA specifically provides for an immediate appeal of right if the party who brought the special motion loses that motion before the trial court, as happened to the Bucher Defendants. So, Valve lost on that issue.
Moving on to the merits of the Bucker Defendants' appeal, the appellate court noted that the first prong of a UPEPA analysis was whether the challenged cause of action fell within the scope of the UPEPA's protections. On this issue, the appellate court that there were two categories of protected speech into which the Bucher Defendants' actions could fall.
First, the UPEPA protects communications that are made about an issue that is involved in a judicial proceeding, which would include an arbitration proceeding. Since the users represented by the Bucher Defendants were involved in arbitration proceedings against Valve, the communications of the Bucher Defendants to their user clients were clearly within the scope of the UPEPA's protections.
Second, the UPEPA also protects a person's exercise of their rights to free speech, association and to petition under either the U.S or Washington state constitutions. Since both the U.S. and Washington constitutions have been interpreted to include a lawyer's representation as a guaranteed freedom of speech, association and to petition, Valve cause of action based on the Bucher Defendants' representation of the Valve users easily fit into this category of protection as well.
The scope provision of the UPEPA contains one other requirement: The protected expression must also relate to a "matter of public concern". This means that a purely private statement with a small group, such as somebody insulting somebody during a poker game or somebody sending a nasty email to another, is not within the UPEPA's protections. This was a non-issue in this case, however, since the underlying dispute involved Valve's alleged anticompetitive practices and that would be a matter of public concern.
There are exclusions to the scope provisions of the UPEPA, meaning that some forms of expression may fall within the definition of protected expression but still not be protected by the UPEPA. One of these exclusions of for so-called commercial speech, being statements made in the course of some commercial transaction, including the sale of services. Here it was Valve that argued ― and the trial court agreed ― that the statements of the Bucher Defendants to their clients, the Steam users, amounted to the law firms selling their legal services to those users.
The fly in the ointment of the commercial speech exclusion was that the notices and statements that the Bucher Defendants made, and which Valve based is case on, were made to Valve as the users' and the Bucher Defendants' adversary regarding an ongoing dispute and not for the purpose of the Bucher Defendants selling their services. Thus, the appellate court observed that, "Instead of centering on the commercial relationship between a law firm and its clients . . . the Bucher Defendants' communications were acts of legal representation." Thus, the commercial speech exclusion was inapplicable, the trial court had erred on that point, and the expressions of the Bucher Defendants were within the scope of the UPEPA's protections.
That Valve's cause of action fell with the scope of the UPEPA's protections did not end the matter, however. The appellate court now examined the next prong of a UPEPA analysis, being whether Valve's complaint had stated viable causes of action even in light of the constitutional protections.
For Valve, the problem here was something known as the litigation privilege, which gives special protections to litigants and their attorneys alike for communications and actions taken during the course of judicial proceedings and which reasonably relate to those judicial proceedings. The idea here is that if a party or their counsel have done something egregious wrong in litigation, the proper remedy is for the court to issue sanctions and fines ― not that the aggrieved party initiate even more litigation about those wrongs. The litigation privilege is thus an absolute privilege.
What was Valve complaining about? It was exactly that the Bucher Defendants were engaging in the litigation activity of sending legal notices and then initiating arbitration proceedings exactly as required by Valve's SSA. Whose fault was that? As the appellate court noted:
"The conduct Valve complains of—the filing of thousands of individual arbitration requests—is a direct result of its own agreement barring class actions and prohibiting collective or representative arbitration. Such conduct is part of a legal practice and is directly related to representing clients, which is precisely the kind of conduct the litigation privilege is designed to protect."
In a footnote, the appellate court further wrote that "[o]n this particular issue, Valve is hoist by its own contractual petard." That footnote further elaborated that Valve had since done away with the individual arbitration requirement of the SSA.
This litigation privilege created an absolute bar to Valve's claim, meaning that the trial court committed error in denying the Bucher Defendants' special motion. The appellate court thus reversed that decision and remanded the case back to the trial court to enter an order dismissing Valve's claims.
ANALYSIS
The UPEPA is a uniform Anti-SLAPP statute adopted by Washington state. The acronym SLAPP stands for strategic lawsuit against public participation. Valve's lawsuit is a classic example of a SLAPP case: It was brought for the strategic purpose of stopping the law firms from participating in litigation on a matter of public interest. The purpose of the UPEPA is to cause an early dismissal of such lawsuits, but that failed here because of a bad ruling of the trial court and the law firms had to appeal that decision. Fortunately, the UPEPA also provides for an immediate appeal of right of the denial of a UPEPA special motion and that resulted in the correct decision by the appellate court.
The litigation privilege is very powerful and when combined with the UPEPA it should normally have the effect of quickly knocking out claims meant to harass or deter law firms from taking or maintaining valid actions in judicial proceedings. Indeed, too many SLAPP lawsuits are precisely of the type brought by Valve here which did not seek a resolution on the merits (the allegations of anticompetitive conduct) but instead was simply meant to harass the law firms from not taking any more of these types of cases against Valve.
As the appellate court noted, the real problem was that Valve's corporate counsel had totally screwed everything up in the SSA by prohibiting users from participating in class actions. When a lot of the same folks are making the same claims, then it is in a company's best interests ― if the claims are truly all defendable ― to consolidate those claims into a class action and get a single favorable ruling that is binding upon all. Valve's corporate counsel only belated figured that out and corrected their mistake by removing the requirement of individual arbitration from the Valve SSA. None of that was the fault of the law firms but rather it was all Valve's own fault.
This sort of proves to some extent the point of some of my previous articles on arbitration, which is that arbitration is not a panacea and arbitration agreements should instead be approached with great caution. Too many attorneys will throw blanket arbitration clauses into agreements without thinking through the ramifications and thus ultimately leading to undesired outcomes.
As here.