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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