The lawsuit claiming Gearbox and Sega falsely advertised Aliens: Colonial Marines with misrepresentative trade show demos has been recommended alternate means of settlement by a California District Court judge, but the plaintiffs are still seeking class action status for the suit.
According to two court documents obtained by Polygon, the case has been assigned to Maria-Elena James, federal magistrate judge for the United States District Court for the Northern District of California. The judge has ordered the two parties to consult with representatives for "Alternate Dispute Resolution" (ADR), a non-binding process overseen by either Judge James or an elected third party.
This order is given to nearly all cases in the Northern District of California Court; both parties must discuss early settlement options with a state-ordered ADR official, which they must accept or refuse within 90 days of the initial lawsuit filing. Both parties would need to agree to an ADR option to enter into arbitration; but considering the plaintiff, Damion Perrine (represented by Edelson LLC), is seeking a jury trial, it seems highly unlikely they'll agree to it.
If the case does enter into ADR, either party dissatisfied by the result may file for a trial de novo within 30 days of the decision. If approved, the case would go to trial in the Northern District of California Court.
The plaintiff, Damion Perrine (represented by Edelson LLC), is still seeking class action status for the lawsuit. In its argument for class action eligibility, the plaintiff claims the game's early purchasers were equally influenced by the trade show demos in question. Moreover, the suit argues the number of potentially eligible plaintiffs would be too great for a more limited form of arbitration to be effective, and legal fees for those individuals would likely be too high for them to take on the case by themselves, regardless.
We are still awaiting response from Sega and Gearbox on the lawsuit.
Correction: This post has been edited to reflect the voluntary nature of the ADR process, which our original post didn't accurately explain. We apologize for the error.
Update: A Sega spokesperson provided a comment on the issue:
Sega cannot comment on specifics of ongoing litigation, but we are confident that the lawsuit is without merit and we will defend it vigorously.
Update 2: Gearbox has issued the following statement:
Attempting to wring a class action lawsuit out of a demonstration is beyond meritless. We continue to support the game, and will defend the rights of entertainers to share their works-in-progress without fear of frivolous litigation.
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