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Gearbox fights back in Aliens suit, says it paid millions of its own cash to finish game

Attorneys for Gearbox Software this week filed requests to have four claims against the developer dropped in the class-action lawsuit which claimed it and Sega falsely advertised Aliens: Colonial Marines. Another motion requests that the entire suit lose its class-action status.

In the motion for partial summary judgement, filed with the Northern District of California court on Wednesday, attorneys for the developer argue that Gearbox shouldn't be included in the suit because it was a contractor and that Sega had final say on the game and its marketing.

The filing also noted that Gearbox sunk millions of its own money into Aliens to finish the game.

"Gearbox never belonged in this lawsuit," according to the motion. "Gearbox is a video game software developer.  It was neither the publisher nor seller of the video game at issue. For more than a year, Gearbox has quietly abided the plaintiffs' claims so that Sega, the game's publisher and the party responsible for the game's marketing and sale, could assume the defense of this lawsuit. Gearbox has honored its publisher's request in spite of plaintiffs' highly-publicized-and highly-misplaced-claims against Gearbox. At this point, however, Gearbox is obligated to pursue its rightful departure from this case."

The suit, filed in April 2013 by Roger Damion Perrine and John Locke on behalf of a class, claimed that Gearbox and Sega falsely advertised Aliens: Colonial Marines by showing demos at trade shows like PAX and E3 that didn't end up being accurate representations of the final product.

These demos, which Gearbox co-founder Randy Pitchford called "actual gameplay," according to the filing, were criticized after the game's launch for featuring graphical fidelity, AI behavior and even entire levels not featured in the game. Our review of Aliens: Colonial Marines featured a gallery highlighting some of the differences between a 2012 video walkthrough of the title, and the same level in the final version of the game.

"Each of the 'actual gameplay' demonstrations purported to show consumers exactly what they would be buying: a cutting edge video game with very specific features and qualities," the claim reads. "Unfortunately for their fans, Defendants never told anyone — consumers, industry critics, reviewers, or reporters — 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."

The motion filed this week presents Gearbox's side of the story.

According to the filing, Sega contracted Gearbox in 2006 to create a video game based on the Alien motion pictures. Under the contract, Sega vetted and approved all of the game's subject matter, content, gameplay mechanics and technical specifications.

While the suit accuses Gearbox of diverting the money it was paid to make the game into the creation of other titles, Gearbox officials say the opposite happened.

"During the development process, Gearbox supplemented Sega's development budget with its own money to help Sega finish its game; Gearbox's contributions to A:CM totaled millions, none of which was ever repaid," Steve Gibson, vice president of marketing for Gearbox, said in a deposition.

The motion goes on to state that it was Sega that was in charge of marketing and advertising of the game. It also denies claims that Gearbox created a special engine just for the demonstrations.

"To develop the software, Gearbox utilized the Unreal 'game engine' licensed from Epic Games; this was the only game engine Gearbox used in the design and development of the game," Gibson said. "Contrary to what some believe, the pre-release demonstrations were not made using different game engines."

Finally, the motion points out that under Gearbox's agreement with Sega, the developer did not receive any bonus money from the publisher based on sales because the game didn't sell enough copies.

"The game's sales were insufficient to trigger any sales-based payments to Gearbox and, as a result, Gearbox has not received any additional monies from Sega for the sale of the game," Gibson said. "Gearbox only received the milestone payments made by Sega during the game's development."

The filing comes about a month after it appeared that Sega and the plaintiffs were on the cusp of an agreement. On June 26, attorneys for the plaintiffs and Sega told the judge in the case they had reached a settlement in principle that would resolve the case in full, according to court documents. It appears that under that agreement, Gearbox would have been dropped from the suit.

But the attorneys told the judge that one of the plaintiffs, Damion Perrine, did not authorize them to sign anything on his behalf and that they couldn't find him.

Yesterday, the plaintiffs filed a motion to remove Perrine from the suit, noting that Perrine is "presently incarcerated in Pennsylvania." The attorneys discovered his incarceration after hiring a private detective to find Perrine, according to the documents.

According to Westmoreland County, Pennsylvania court records, Perrine is in jail awaiting trial on three charges including simple assault and terroristic threats with intent to terrorize another.

In a separate filing Wednesday, attorneys for Gearbox asked the court to remove the class allegations saying that the suit didn't meet the requirements to maintain a class action.

If approved by the judge, the case would be down to a single plaintiff: Locke.

Polygon has reached out to the plaintiff's attorney and to Sega and Gearbox for further comment and will update this story when they respond.

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