“Game Over, Man” – Aliens: Colonial Marines class action over?

Gamers may be interested in the latest legal development in the case against the makers of Aliens: Colonial Marines. Plaintiffs are claiming that the marketing was deceptive, and have banded together to exact justice on two big players in the games industry. However, their efforts have hit a big snag that they may not recover from.

A little bit of background

Those demos had the disclaimer that they were “actual gameplay,” which some claim led them to preorder and purchase the game.In 2013, Sega and Gearbox released Aliens: Colonial Marines. Reviewers and players noted that the game did not look as good as demos that had been shown both to the press and the public. Those demos had the disclaimer that they were “actual gameplay,” which some claim led them to preorder and purchase the game.

Soon after, a class action lawsuit involving 130,000 purchasers was filed against Sega and Gearbox, alleging deficiencies in graphic quality, AI and other aspects of the final game when compared to the “actual gameplay” shown in advertising the game. According to the plaintiffs’ claims, the final game bore “little resemblance” to what it was advertised as.

Gearbox attempted to remove themselves from the lawsuit, claiming that Sega was in charge of the marketing. In August 2014, Sega proposed a settlement with the class plaintiffs for a total of $1.25 million (nearly half of which went to the attorneys and administrative costs, of course).

Class action lawsuits

In order for a class action lawsuit to go forward, the class needs to be “certified” by a judge.Before we go any further, I’ll give a little bit of info on class action lawsuits and how they work procedurally.

A class action lawsuit is one where a group of plaintiffs, led by a smaller group of “named plaintiffs,” sue another party collectively. This gives a large group of people the ability to bring small claims that wouldn’t be worth litigating on their own.

In order for a class action lawsuit to go forward, the class needs to be “certified” by a judge. In order for that to happen, four requirements need to be met by the class:

  1. Numerosity – there need to be enough members to make class action necessary
  2. Commonality – there need to be common questions of law and fact between the members
  3. Typicality – the named plaintiffs’ claims need to be typical of the class members
  4. Adequacy – the class’s legal counsel needs to be adequately experienced and fairly representing the class members

gearbox-class-certification-01

Recent developments

In November 2014, a federal judge in charge of the class action expressed skepticism about whether he would certify this class. At issue were evidence issues that would speak to whether or not the commonality requirement was met.

Basically, the judge doubted that the plaintiffs would be able to prove that all of the class members viewed the demo videos prior to purchasing the final product. Gearbox’s attorneys argued that it would be unfair to have all of the plaintiffs “self-identify” as having done so. This, they said, could leave the class open to fraud.

Basically, the judge doubted that the plaintiffs would be able to prove that all of the class members viewed the demo videos prior to purchasing the final product.Now, the same federal judge has ruled against the class, refusing to certify them for the above reason. The fact that there was not a single “misrepresentation” alleged, but rather a series of them over time prior to the game’s release, was another factor in the judge’s rejection.

Another issue the judge found with the proposed class was that the class itself was overbroad – plaintiffs’ lawyers attempted to add all purchasers of the game as class members.

Arbitration struck down

In addition to refusing to certify the class, the judge also struck down a motion by Gearbox to get the disputes moved to arbitration.

Gearbox claimed that, because the game’s EULA includes an arbitration clause, this would force those purchasers to submit to arbitration on this issue. The judge disagreed, presumably because this issue would have arisen prior to their purchase of the product.

Moving forward

Now it is unclear what will happen in this case. The evidentiary issues seem pretty damning to this going forward, but the plaintiffs may have leave to amend and try again. I’ll keep gamers updated on the situation if there are any further developments.

In the meantime, feel free to check out my free game development legal eBooks, or contact me to set up a free consultation about gamedev legal issues.

photo credit: Cogs and Gears gears cogs bits n pieces via photopin (license)

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