Judge Unlikely to Grant Cert. in Sega ‘Aliens’ Class Action Lawsuit

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On Wednesday, a California federal judge said he thought certification of a nationwide Class of Sega’s “Aliens: Colonial Marines” video game was doubtful due to gaps in the plaintiffs’ evidence.

Lead plaintiffs John Locke and Damion Perrine alleged in their class action lawsuit filed in April of last year that Sega and Gearbox schemed to trick consumers into buying “Aliens: Colonial Marines” by giving bogus gameplay demonstrations at video game expositions and trade shows leading up to its February 2013 release, but that “their ‘actual gameplay’ demonstration advertising campaign bore little resemblance to the retail product that would eventually be sold to a large community of unwitting purchasers.”

Sega and the plaintiffs entered into a preliminary class action settlement in August of this year. If approved, the Sega video game settlement would provide $1.25 million to eligible Class Members. In September, Locke and Perrine filed a motion seeking certification of a Class of consumers who purchased “Aliens: Colonial Marines” prior to its release date. Approximately 135,000 people would be eligible for benefits from the Sega class action settlement.

U.S. District Judge James Donato expressed doubt that the plaintiffs’ proposed Class would be certified against Gearbox Software LLC, the designer of the game, because the plaintiffs had not shown how they would establish that those who purchased the game saw the game demonstrations and relied on those demonstrations when deciding to purchase Aliens.

The judge asked the plaintiffs, “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?” during a hearing on the matter. “There are gaps in the proof record that are going to make it difficult for me to rule on class certification,” continued the judge.

Judge Donato also addressed the plaintiffs’ argument that the case should be tried under California law. The plaintiffs argued that a choice-of-law provision in the game’s license agreement dictated California law governed, while Gearbox argued that because the plaintiffs live in different states, the case should be tried under those states’ laws. However, the judge pointed out that the plaintiffs had already argued an arbitration clause in the license agreement did not apply and Gearbox had waived the right to arbitrate the class action lawsuit.

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

The Sega ‘Aliens’ Video Game Class Action Lawsuit is Damion Perrine, et al. 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, San Francisco Division.