Grand Theft Auto V Makers Try Again to Dismiss Class Action Lawsuit

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The makers of Grand Theft Auto V are taking another stab at evading a three-year-old false advertising class action lawsuit over access to GTA Online.

After the case against them was revived last February, defendants Take-Two Interactive Software Inc. filed another motion to dismiss claims over the company’s September 2013 release of Grand Theft Auto V.

Plaintiffs Bruce McMahon and Christopher Bengston allege that at the time of release, Take-Two Interactive failed to provide access to the internet-based multiplayer functionality known as GTA Online. The plaintiffs argue the promises of online functionality made on the game’s packaging were unlawful misrepresentations.

In the current motion for dismissal, Take-Two Interactive argues the plaintiffs still fail to allege a plausible theory that they relied on the alleged misrepresentations in deciding to buy Grand Theft Auto V.

Claims for breach of warranty also fail because the online functionality is now up and running. Therefore there is no current defect in Grand Theft Auto V, the company argues. Take-Two Interactive also says the plaintiffs’ claims for negligence are barred by the economic loss doctrine, which prevents tort recovery for claims of mere economic losses.

The company also challenges McMahon and Bengston’s attempt to represent a Class of similarly harmed plaintiffs. Take-Two Interactive says the harms alleged would vary on an individual basis. Therefore the proposed Class Members do not have the unity of interest required to bring these claims as a false advertising class action lawsuit, the company says.

McMahon and Bengston’s Grand Theft Auto V class action lawsuit has been going on since October 2013. According to the plaintiffs, GTA V was advertised prior to its release as a “state-of-the-art game” that would allow up to 16 players to compete in a single online game.

That feature was not available when Grand Theft Auto V was released, the plaintiffs say. Defendants claimed at the time that it would still take several weeks for GTA Online to get up and running. Plaintiffs argued that lack of access was contrary to what was promised in the promotional materials for the $60 game.

U.S. District Judge Virginia A. Phillips has already dismissed McMahon’s Grand Theft Auto V class action lawsuit once before, but that dismissal was reversed on appeal.

The judge found that Take-Two Interactive never promised immediate access to the online features of Grand Theft Auto V. To the contrary, she found that the broad language of the company’s disclaimer indicated that GTA Online may not be immediately available.

On appeal, the Ninth Circuit disagreed with Judge Phillips. The appeals court found she had neglected to view McMahon’s factual allegations in a light most favorable to him.

Representations on the game’s packaging said online access might not be available for some users, the appeals court said. That’s different from what the plaintiffs allege – namely, that “GTA Online was not available immediately to any purchasers,” the court said.

The court also said the dismissal should have been made without prejudice, allowing McMahon a chance to amend his complaint.

The plaintiffs are represented by Jeffrey Lawrence of The Law Offices of Jeffrey R. Lawrence, Rex Sofonio of Sofonio & Associates and James R. Hawkins of James Hawkins PC.

The Grand Theft Auto V Class Action Lawsuit is Bruce McMahon, et al. v. Take-Two Interactive Software Inc., et al., Case No. 5:13-cv-02032, in the U.S. District Court for the Central District of California.

UPDATE: On Jan. 23, 2017, the plaintiffs in a class action lawsuit alleging that an online feature was not immediately available after they purchased Grand Theft Auto V asked a federal judge to keep their case alive, arguing that they relied on the representations about the feature when making their purchase.