SAN FRANCISCO (CN) – A federal judge refused to certify a class of video gamers who claim that the promos for Sega’s “Aliens: Colonial Marines” misrepresented the game’s quality.
Lead plaintiffs Damion Perrine and John Locke sued Sega of America and Gearbox Software in Federal Court, claiming that the game’s misleading promo version induced them to buy it – which they would not have done had they known what the playing experience was truly like.
The game is based on James Cameron’s 1986 film “Aliens,” according to the complaint.
The complaint alleges a “classic bait-and-switch,” in which the defendants created a “non-retail but technically superior version” of the game that featured, among other things, “advanced artificial intelligence programming, certain gameplay sequences drawn from the Aliens movie” and “a highly advanced graphics engine” and presented this version to the public as “actual gameplay.”
But the retail version of the game, Perrine and Locke said, did not meet these expectations.
Judge James Donato refused to certify the complaint’s proposed class of “all persons in the United States who paid for a copy of the ‘Aliens: Colonial Marines’ video game either on or before Feb. 12, 2013,” because “at a minimum, common questions of fact would not predominate in the class as defined by the complaint: rather, individualized questions of reliance would,” Donato said.
“Plaintiffs’ original definition makes no attempt to limit the class to those who were ‘exposed’ to the allegedly misleading advertising here, and consequently it is overbroad and not certifiable,” the judge continued.
At the motion hearing, Locke “rapidly retreated” and proposed limiting the class to “people who viewed an advertisement,” which underscored that the plaintiffs’ class definition was untenable, Donato said.
He also called the proposed class’s ascertainability “a pipe dream,” because Locke could not recall or identify which promotional videos or trailers he saw that misled him about the game.
“The reality of this memory problem is beyond meaningful dispute,” Donato said.
However, Donato refused to grant Gearbox’s motion to dismiss the suit because the action does not fall under the scope of the binding arbitration and class action waiver provisions of the Gearbox “end-use license agreement.”
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