Two video game enthusiasts brought a consumer class action suit against Sega of America, Inc. (“Sega”) and Gearbox Software, LLC (“Gearbox”) for their alleged disappointment in the quality of the video game “Aliens: Colonial Marines”(“ACM”). ACM was marketed as “the canon sequel” to the film Aliens, the 1986 classic blockbuster in which Bill Paxton’s character famously exclaimed “Game over, man, now what are we supposed to do?” after the dropship meant to rescue the expedition team was destroyed.
In this case, the plaintiffs, self-described avid fans of the Aliens franchise, pre-ordered the ACM game based on a non-retail version that they saw at various videogame conventions. The complaint alleged that videogame industry critics and even the president of Gearbox acknowledged the discrepancies between the demo version of ACM and the final retail version, in which critics and Gearbox expressed disappointment and surprise following the public release of the game. The gist of the complaint was that purchasers of the game prior to release date were victims of a “bait and switch” because the consumers believed that the retail version of ACM would be the same as the demo non-retail version. Plaintiffs sought relief on behalf of themselves and a class of persons who purchased the ACM game prior to its February 12, 2013 release date. Plaintiffs later sought to narrow this definition to “persons who viewed an advertisement for ACM incorporating the Demoed Version.”
The central issue for the court was the ascertainability of the class. The court noted that Rule 23 has an implied requirement that a class must be sufficiently definite and that the party seeking certification of a class must demonstrate that an identifiable and ascertainable class exists. The court explained that any class definition must be clear in its applicability so that it will be clear later on whose rights are merged into the judgment.
The court explained that the record in the case showed why “ascertainability is a pipe dream.” There were no common questions of fact because the purported class members were exposed to disparate information concerning the ACM game. The claims were not based on a single misrepresentation, but rather the non-retail version of the ACM game that was allegedly presented to the public through a series of gameplay demonstrations. The gameplay demonstrations were different than the trailers and commercials for the game, which showed only the final retail version of the ACM game. The parties agreed that there was no reliable method to differentiate which consumers saw the gameplay demonstrations of the non-retail version of the ACM game from those who viewed commercials that showed only the retail version of the game.
Plaintiffs proposed that that the class could be ascertainable by having class members submit an affidavit and claim form in which they identified the specific video or trailer for ACM that they viewed prior to placing a pre-order for the game at issue. The court rejected such self-identification through affidavits because they would be highly unreliable and embody a selective memory problem. As for selective memory, the plaintiffs themselves were unable to identify with certainty the commercials and trailers they saw for the ACM game. Furthermore, the “memory problem” would be compounded by incentives individuals would have to associate with a successful class or dissociate from an unsuccessful one.
On the basis of lack of ascertainability, the court denied plaintiffs’ motion for class certification.