Sega ‘Aliens’ Video Game Class Action Lawsuit Denied Certification

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Gamers and avid fans of the 1986 James Cameron film “Aliens” suffered a setback this week in a class action lawsuit alleging they were tricked into purchasing the highly anticipated Sega video game “Aliens: Colonial Marines”  based on bogus gameplay demonstrations at video game expositions and trade shows leading up to its February 2013 release.

Plaintiff Damion Perrine filed the “Aliens” video game class action lawsuit in April 2013 against Sega of America Inc., which produced the game, and game developer Gearbox Software, LLC, alleging they performed a “classic bait-and-switch” scheme in which they presented a “technically superior version” of the game  that “bore little resemblance to the retail product that would eventually be sold to a large community of unwitting purchasers.”

Tuesday’s ruling denied a September 2014 motion by the other named plaintiff  in the case, John Locke, to certify a nationwide 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.”

U.S. District Judge James Donato denied Locke’s motion, writing in his May 12 ruling that it was a “pipe dream” to believe that everyone who purchased the game could remember, or prove, that they purchased “Aliens: Colonial Marines” based on a specific demonstration or advertisement.

Donato’s ruling was in line with his previous declaration that he was “doubtful” he would certify the proposed class, telling plaintiffs at a November 2014 hearing: “How are you guys going to show that the class isn’t stuffed to the gills with people who never saw the demo and preordered because they love the game? There are gaps in the proof record that are going to make it difficult for me to rule on class certification.”

Donato wrote in his ruling Tuesday:

“Plaintiff’s original definition [of the proposed class] 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 obviousness of these principles is underscored by the fact that plaintiff rapidly retreated at the hearing to ‘limit the class to people who viewed an advertisement.’ … The problem with plaintiff’s suggestion is that the revised class lacks ascertainability.”

Locke joined the Aliens class action lawsuit in an amended complaint filed in July 2013.

“The identity of the named plaintiffs has been a moving target in this action,” Donato acknowledged in his ruling, explaining that he struck down a second amended complaint filed in June 2014 after class counsel admitted they had filed it and dropped Perrine from the case without his consent. “As a result, the first amended class action complaint remains the operative complaint and both Messrs. Perrine and Locke are named plaintiffs, but only Mr. Locke moves for class certification and seeks appointment as a class representative.”

In addition to denying Locke’s motion for class certification, Judge Donato also denied a motion filed by Gearbox Studios to dismiss the class action lawsuit based on its argument that the game’s end user license agreement contains a class action waiver, ruling that it does not apply to Locke’s claim.

It’s unclear how Tuesday’s ruling will affect a $1.25 million settlement agreement reached last August.

The plaintiffs are represented by Benjamin Scott Thomassen, Christopher Lillard Dore and Rafey S. Balabanian of Edelson PC and Samuel Lasser of the Law Office of Samuel Lasser.

The Sega ‘Aliens’ Video Game Class Action Lawsuit case is Perrine v. Sega of America Inc., et al., Case No. 3:13-cv-01962-JD, in the U.S. District Court for the Northern District of California.