May 16 2015
Federal Court Declines To Certify Class In Aliens: Colonial Marines Lawsuit Alleging “Actual Gameplay” False Advertising
In federal litigation by purchasers of the video game Aliens: Colonial Marines who allege that the game’s developer and publisher falsely advertised the game’s quality, the Court has denied Plaintiff’s request to certify a plaintiff class, finding that there is no possible way to identify who bought the game only after viewing the allegedly misleading advertisements. An implicit legal requirement for class certification–that an “identifiable and ascertainable class” exists–is therefore not satisfied.
The Aliens: Colonial Marines Lawsuit
Aliens: Colonial Marines, developed by Gearbox Software, LLC and produced by Sega of America, Inc., was reportedly advertised as the canon sequel to James Cameron’s 1986 sci-fi thriller Aliens. (The game is a first-person shooter taking place after the events depicted in the movie Alien 3. The player assumes the role of a U.S. Colonial Marine corporal who battles through alien-infested scenarios, wielding pulse rifles, flame units, and other iconic weapons from the film franchise.) The named plaintiffs in the lawsuit represent themselves as avid fans of the “Aliens” movie franchise. According to plaintiffs, the defendants secretly created two entirely separate versions of the game: A technologically superior version, which defendants advertised to the public to generate media and consumer hype (but which they never intended to release for public purchase), and an inferior “consumer” version of the game that would actually be delivered to purchasers, including upon preorders. The technologically superior version of the game was allegedly showcased at the 2011 “E3″ video game conference and otherwise advertised as “actual game play”–advertisements which, Plaintiffs allege, “duped” them into buying the game prior to or on the day of its public release in early 2013.
Plaintiff commenced a putative class action lawsuit against Gearbox and Sega on April 29, 2013, generally alleging a “bait-and-switch” by Gearbox and Sega in violation of consumer laws. The proposed class as defined by Plaintiff was “all persons in the United States who paid for a copy of the Aliens: Colonial Marines video game either on or before February 12, 2013.”
The Federal District Court’s Ruling
Federal Rule of Civil Procedure 23 generally governs motions for class certification. Under that rule, a party bears the burden of showing that each of the four requirements of Rule 23(a), and at least one of the requirements of Rule 23(b), are met. The four requirements under Rule 23(a) are: (1) the class is so numerous that joinder of class members is impracticable (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the class representatives are typical of those of the class (“typicality”); and (4) the class representatives will fairly and adequately protect the interests of the class (“adequacy”). The requirements under Rule 23(b), one of which must also be satisfied, are: (1) that prosecution of separate actions risks either inconsistent adjudications which would establish incompatible standards of conduct for the defendant or would as a practical matter be dispositive of the interests of others; (2) that defendants have acted or refused to act on grounds generally applicable to the class; or (3) that there are common questions of law or fact that predominate over any individual class member’s questions and that a class action is superior to other methods of adjudication. Finally (and pertinent to the Court’s decision here), an “implied prerequisite” to class certification is that the party seeking class certification must demonstrate that an “identifiable and ascertainable class” exists.
As an initial matter, the Court found that “common questions of fact would not predominate in the class as defined by the complaint.” (Rule 23(b)(3).) In the Court’s view, in fact individualized questions of reliance would predominate–particularly because it was unclear who among the proposed class was actually “exposed” to the allegedly misleading advertising. (The allegedly misleading “actual game play” demos like those featured at the E3 2011 conference were included in only certain advertisements for the game. Other advertisements featured only footage from the final retail version.) Plaintiff proposed to remedy this problem by limiting the class to “people who viewed [a misleading] advertisement,” but the Court concluded that such individuals could not be identified through any reliable means: Even the named plaintiff seeking class certification admitted in deposition that he could not “answer…with any degree of certainty” a question regarding which videos he saw before he preordered his copy of the game. The implied requirement of an “identifiable and ascertainable class” was therefore lacking (in the Court’s words, a “pipe dream”), and the Court denied class certification on this additional basis.
The case is Perrine v. Sega of America, et al, Case No. 13-cv-01962 (N.D. Cal. April 29, 2013). Further discussion of the trial court proceedings can be found at “Aliens: Colonial Marines”–The Current Questions In The “Actual Game Play”/”Bait And Switch” False Advertising Lawsuit.