ascertainability defeats class but EULA doesn’t

Perrine v. Sega of America, Inc., No. 13-cv-01962, 2015 WL 2227846 (N.D. Cal. May 12, 2015)
Gearbox developed and Sega produced the game “Aliens: Colonial Marines,” “held out as the canon sequel to James Cameron’s 1986 film ‘Aliens.’”  The named plaintiffs purchased prerelease copies.  The complaint alleged a bait-and-switch in which defendants developed 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 (the ‘Demo Engine’),” and presented this version and described it to the public as “actual gameplay.” The retail version ultimately sold, however, allegedly “utilized different programming altogether and a different—and much less advanced—graphics engine (the ‘Retail Engine’).” Plaintiffs alleged the usual California claims.
The court adopted an ascertainability requirement for class certification and held that plaintiffs failed it. Defining the class as pre-release purchasers of the game would pose individualized questions of reliance.  A presumption of reliance “does not arise when class members ‘were exposed to quite disparate information from various representatives of the defendant.’” Limiting the class to people who saw an ad wouldn’t work because the court didn’t want to rely on affidavits from putative class members that they saw an ad.  (I wonder if there’s anything to be said about distrust of consumers versus moves towards voter ID.)  Here, the non-retail version was allegedly advertised in a series of demonstrations and an ongoing ad campaign. Many trailers and ads were released, and several pre-release videos contained footage from only the final retail version.
The named plaintiff moving for certification could not “answer … with any degree of certainty” a question regarding which videos he saw before he preordered his copy of the game. Given the problems of subjective memory at issue, self-identification through affidavits was impermissible. As Judge Alsup noted, “[s]wearing ‘I smoked 146,000 Marlboro cigarettes’ is categorically different from swearing ‘I have been to Paris, France,’ or ‘I am Jewish,’ or even ‘I was within ten miles of the toxic explosion on the day it happened,” and the “memory problem is compounded by incentives individuals would have to associate with a successful class or dissociate from an unsuccessful one.” (Interestingly enough, that importance-based claim is completely inconsistent with what memory researchers say about memory.)
Certification was denied.  Separately, in an attempt to get nationwide application of California law, plaintiffs invoked Gearbox’s EULA, which had a California choice of law provision incorporated by reference from Sega’s EULA. Gearbox’s EULA, though, also has a mandatory arbitration provision and class action waiver.  The court found that this case fell outside the scope of those provisions. As used in the EULA, “dispute” is defined to mean “any dispute, claim, demand, action, proceeding, or other controversy between you and Gearbox concerning the Licensed Works….” “Licensed Works” referred to “the online features of Gearbox games and products.” 
Gearbox’s argument that “Licensed Works” included “Gearbox games and products” failed because the EULA stated that “Gearbox may limit or prohibit access to the Licensed Works in its discretion.” As the court noted, “[t]his makes sense only if ‘Licensed Works’ means the online features, which Gearbox could presumably control access to via log-in credentials, IP addresses, and the like. It makes no sense at all if it refers to Gearbox games and products already purchased and in the living rooms of consumers. Gearbox definitely does not have the right to go into consumers’ homes and remove their copies.” So Gearbox couldn’t win dismissal or judgment on the pleadings.
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