EA Wants Online Play Class Action Lawsuit Dismissed

Electronic Arts Inc. has filed a motion to dismiss a proposed class action lawsuit alleging the company falsely represented its online play features. EA contends that its Terms of Service agreement spells out that the dispute should be arbitrated, and that it clearly states on the back of the box that “EA can retire online features after 30-days notice.”

Plaintiff Justin T. Bassett filed the EA class action lawsuit in August 2013, claiming that he purchased games made by EA, including Madden NFL, The Sims and FIFA Soccer, after the company prominently advertised that these games would be available for online play. However, EA pulled online support for some of these games after they released newer versions.

Basset claims that EA knew that customers would pay a premium for the ability to compete online with other gamers and had intended to withdraw support for these programs despite promising online play.

He further alleges that Microsoft Inc.’s “Xbox Live” logo falsely represents that EA will continue to make optional online game features available “indefinitely,” or at least for a “reasonable” amount of time, after launch. The logo is prominently placed on the front of EA’s sports console game boxes. Microsoft is not a party to the EA class action lawsuit.

The EA online play class action lawsuit alleges that when Bassett and others in the putative class bought video games made by EA, the company advertised prominently that the games would be available for online play, allowing users to interact with one another over the Internet. However, Bassett said that EA retired the support for online play in some of its games after releasing newer versions. He alleged that EA cheated users who paid a premium for online access.

EA contends that Bassett is asserting this theory “notwithstanding the clear statement, printed prominently and in bold on back of the box, that EA can retire online features after 30-days notice.” According to EA, a player cannot activate and use online game features without first assenting to the Terms of Service (TOS).

The Terms of Service also contains an arbitration provision that precludes class action lawsuit or other representative claims. “You and EA agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding,” the TOS states.

In asserting that the dispute should be arbitrated, EA said that “an arbitrator must determine whether plaintiff’s claims have merit because plaintiff has contractually agreed to arbitrate this dispute. Prior to filing suit, plaintiff twice asserted to identical arbitration provisions that covered any and all disputes with EA.” Because of this, EA argued that the plaintiff’s claims in the EA class action lawsuit are within the scope of arbitration provision, and if taken under Section of the Federal Arbitration Act, would require the Court to compel arbitration.

EA’s motion to dismiss the class action lawsuit also requested that if the court declines arbitration, it must instead transfer the action because Bassett contractually agreed that the Northern District of California would be the exclusive jurisdiction for any lawsuit between him and EA. Besides, the motion argued that Bassett is a resident of Chicago, not New York.

Bassett said that EA does not state anywhere on or within the games’ packaging that any complaint must be heard in California.

Bassett is represented by Susan M. Coler, Melissa W. Wolchansky and Clayton Halunen of Halunen & Associates, and Michael Robert Reese and Kim Richman of Reese Richman LLP.

The EA Online Play Class Action Lawsuit is Justin T. Bassett v. Electronic Arts Inc., Case No. 1:13-cv-04208, in the U.S. District Court for the Eastern District of New York.