The plaintiffs in a lawsuit against Gearbox Software and Sega, claiming the developer falsely advertised Aliens: Colonial Marines with unrepresentative trade show demonstrations, have agreed to drop Gearbox from the suit, according to court documents obtained by Polygon today.
The judge in the case also ruled that the suit, which still stands against publisher Sega and once nearly reached a $1.25 million settlement, is no longer a class action and will only be representative of the two original gamers who filed the suit through law firm Edelson LLC in the Northern District of California in April, 2013.
Aliens: Colonial Marines was released Feb. 12, 2013, to harsh criticism and low review scores. Some players and reviewers noted that the game's visuals didn't match what Sega and developer Gearbox showed off of the game prior to release at fan and press events.
These demos, which Gearbox co-founder Randy Pitchford called "actual gameplay," according to the original court 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.
In August 2014, Sega and the plaintiffs reached a tentative agreement for $1.25 million, much of which was to be paid out to people who had purchased the game before Feb. 13, 2013. According to court documents, Gearbox attorneys were told they could be included in the settlement if they agreed to pay an additional $750,000 into the settlement. But instead, Gearbox filed a motion to throw out the case. Gearbox argued it shouldn't be included in the suit because it operated as a contractor, and that Sega had final say on the game and its marketing.
Copious court filings came out of the more than two year court battle, some including tantalizing details about how games are developed and marketed and insight into Sega's displeasure with how Gearbox head Randy Pitchford promoted the game.
That argument proceeded until this month when the judge finally ruled on both the class action status and Gearbox's motion to dismiss.
On May 12, U.S. District Judge James Donato denied the original motion for class certification in the suit and also denied Gearbox's motion to dismiss the case against it. But in a case management meeting yesterday, the attorneys for the plaintiff agreed to dismiss the case against Gearbox with prejudice (meaning they can't later file another suit connected to the same case) in return for a Gearbox not seeking legal fees. Both parties have sixty days before the decision is final.
In his May 12 decision to deny the class certification, Donato wrote that the definition of the gamers who would have made up the class wasn't specific enough. Initially, the class was meant to include everyone in the U.S. who bought a copy of the game. The definition made no attempt to limit the class to just people who might have seen misleading advertising, Donato wrote. The attorneys later suggested that people applying for the class action settlement would have to swear they had seen a misleading trailer prior to pre-ordering the game, which Donato didn't think was appropriate.
The class action was also hindered by the fact that the game was advertised through a number of presentations and trailers, some of which may have been misleading and some of which weren't.
Ultimately, Donato wrote, there's no reliable and manageable way to figure out who was mislead and who wasn't.
In refusing to dismiss the case against Gearbox, Donato wrote that Gearbox's argument that the game was a licensed work, and therefore protected through the end user license agreement, doesn't hold water for the game itself, only the online elements. That's because the EULA allows Gearbox to prohibit access to its licensed work and "Gearbox definitely does not have the right to go into consumers' homes and remove their copies of ACM."
The court notes from the May 27 meeting between the attorneys doesn't explain exactly why the plaintiffs dropped Gearbox from the suit. But it does seem to indicate that the developer's unwillingness to settle and the loss of class action status forced the hand of the plaintiff's attorneys who are now in renewed settlement discussions with Sega.
The plaintiff's now have until June 3 to tell the court how they intend to proceed with respect to Sega, according to the document.