Federal judge denies GameStop motion to dismiss lawsuit over used game sales

A federal judge in New Jersey this week denied GameStop's motion to dismiss a class action lawsuit filed against the company alleging that GameStop violated the New Jersey Consumer Fraud Act by selling used games that did not include single-use downloadable content, according to documents obtained by Polygon.

United States District Judge Robert B. Kugler's opinion summarizes the lawsuit, which was filed by three GameStop customers who "believed that their pre-owned video games would include all of the content of a new video game" and characterized the DLC is an "integral feature" of the games. The plaintiffs further allege that GameStop "induced" them to purchase used games with statements like “our used game trade program creates value for customers” and providing receipts that showed the savings they received by purchasing used games.

Two of the plaintiffs further allege that, by buying the $15 DLC, they spent more — a total of $60, rather than the $59.95 price of a new retail copy with the online passes included — than they would have spent purchasing a new retail copy of the games.

Among the several allegations leveled against GameStop, the plaintiffs allege that GameStop was "aware of material information, that DLC was not included with the purchase of pre-owned games, but did not reveal this fact to Plaintiffs" and, combined with GameStop's claims about creating value and the savings printed on receipts, the plaintiffs have "plausibly sated a knowing omission" on GameStop's behalf.

Electronic Arts included one-time use codes to access features like multiplayer, beginning in 2009. Publishers like THQ, Ubisoft and Warner Bros. followed suit. Because those codes came only with new copies of the games and expired after use, those who purchased used copies of the games would also have to purchase their own online passes.

In May 2013, EA announced that it would no longer require online passes in its games.

We've reached out to GameStop for comment on the lawsuit and will update this article with more information as we receive it.

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