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Perrine v. Sega of America, Inc.

United States District Court, N.D. California

May 12, 2015

SEGA OF AMERICA, INC., et al., Defendants.


JAMES DONATO, District Judge.

In this consumer class action, plaintiff John Locke has moved for class certification and defendant Gearbox has moved for dismissal or judgment on the pleadings. Dkt. Nos. 95, 130.[1] The Court denies both motions.


The product at issue in this case is the video game "Aliens: Colonial Marines" ("ACM"). Dkt. No. 26 ¶ 1. The game, developed by Gearbox Software, L.L.C. ("Gearbox") and produced by Sega of America, Inc. ("Sega"), was "held out as the canon sequel to James Cameron's 1986 film Aliens.'" Id. ¶ 19. Named plaintiff John Locke is an "avid fan of the series" who pre-purchased a copy prior to its release. Id. ¶¶ 75, 76. Damion Perrine, the other named plaintiff, is also a "fan of the Aliens franchise, " and purchased a copy of the game on its release date, February 13, 2013. Id. ¶¶ 85, 94.[2]

The complaint alleges a "classic bait-and-switch." Id. ¶ 1. Plaintiffs allege that 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." Id. ¶¶ 23-24. The retail version that was ultimately sold, however, allegedly "utilized different programming altogether and a different - and much less advanced - graphics engine (the Retail Engine')." Id. ¶ 26. The complaint alleges that because of these differences, videogame industry critics expressed "disappointment and surprise" following the public release of the game, and that even Randy Pitchford, President of Gearbox, "acknowledged the discrepancy between the Aliens: Colonial Marines hands-off demo and the final game." Id. ¶¶ 62, 68. On this basis, the complaint asserts six claims for relief: (1) violation of the Consumer Legal Remedies Act, Cal. Civil Code § 1750 ("CLRA"); (2) violation of the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 ("UCL"); (3) violation of the False Advertising Law, Cal. Bus. & Prof. Code § 17500 ("FAL"); (4) breach of express warranties; (5) fraud in the inducement; and (6) negligent misrepresentation.

In his pending motion, Mr. Locke seeks certification of the following class against defendant Gearbox only:[3] "All persons in the United States who paid for a copy of the Aliens: Colonial Marines video game either on or before February 12, 2013." Dkt. No. 95 at 13; see also Dkt. No. 26 ¶ 101. Plaintiff alternatively proposed the certification of a more narrowed class at the hearing, which the Court will address.

At the class certification hearing, plaintiffs' counsel also sought the application of California law to a nationwide class under Gearbox's End User License Agreement ("EULA"). This stimulated Gearbox to file a motion to dismiss or, in the alternative, for judgment on the pleadings based on the arbitration clause and class action waiver contained in the EULA. Dkt. No. 130.



Federal Rule of Civil Procedure 23 governs plaintiff's motion for class certification. Under that rule, a party seeking class certification bears the burden of showing that each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b) are met. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998). Although not yet expressly recognized by the Ninth Circuit in a published opinion, the Court also regards as well-established and uncontroversial that "[i]n addition to the explicit requirements of Rule 23, an implied prerequisite to class certification is that the class must be sufficiently definite; the party seeking certification must demonstrate that an identifiable and ascertainable class exists." Xavier v. Philip Morris USA Inc., 787 F.Supp.2d 1075, 1089 (N.D. Cal. 2011); see also Martin v. Pacific Parking Sys. Inc., 583 Fed.Appx. 803 (9th Cir. 2014) (memorandum disposition affirming district court's order denying class certification "in part, because the proposed class was not ascertainable").

As an initial matter, the proposed class as framed by the complaint - "all persons in the United States who paid for a copy of the Aliens: Colonial Marines video game either on or before February 12, 2013" - is not certifiable. Of the three avenues offered by Rule 23(b), plaintiff seeks to satisfy Rule 23(b)(3). Dkt. No. 95 at 18. But at a minimum, common questions of fact would not predominate in the class as defined by the complaint; rather, individualized questions of reliance would. Plaintiff acknowledges this problem in his motion. See id. at 19 (recognizing "possible individual issue here [of] reliance"). And while it is true that "class members do not need to demonstrate individualized reliance" for plaintiff's claims under the UCL and FAL, even for those claims, a presumption of reliance "does not arise when class members were exposed to quite disparate information from various representatives of the defendant.'" Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 596 (9th Cir. 2012). For the presumption to apply, everyone in the class must have been "exposed, " meaning that "it is necessary for everyone in the class to have viewed the allegedly misleading advertising." Id. Plaintiff's original definition 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." Dkt. No.129 at 15:24-16:2. Plaintiff proposed to do this "by affidavit and claim form." Id. at 16:4-5. The Court directed the parties to submit supplemental briefs on this issue, namely "whether the Court can and should certify a class allowing class membership to be established by assertion of the class members by way of, e.g., affidavits swearing that a consumer viewed a certain video or trailer prior to placing a pre-order for the game at issue." Dkt. No. 127.

The parties responded, Dkt. Nos. 133, 136, and the Court now concludes that the answer to its question is no. The problem with plaintiff's suggestion is that the revised class lacks ascertainability. Ascertainability is an important requirement because it "is needed for properly enforcing the preclusive effect of final judgment. The class definition must be clear in its applicability so that it will be clear later on whose rights are merged into the judgment, that is, who gets the benefit of any relief and who gets the burden of any loss." Xavier, 787 F.Supp.2d at 1089.

The factual record in the case shows why ascertainability is a pipe dream here. As the complaint acknowledges, this is not a case about a single misrepresentation. Rather, the non-retail version of the ACM game is alleged to have been presented to the public "through a series of actual gameplay' demonstrations." Dkt. No. 26 ¶ 27 (emphasis added). The first demonstration is alleged to have occurred "at the annual E3' conference in early June 2011." Id. ¶ 30. At the hearing, plaintiff explained that the ad campaign at issue ...

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