The Aliens: Colonial Marines showcase at the 2011 Electronic Entertainment Expo (Pop Culture Geek via Wikimedia Commons)
A proposed class action of substantial interest to the video gaming world was on the cusp of a settlement when the case was hit by the litigation equivalent of friendly fire.
Widely watched for its potential implications for the marketing practices of action-game producers, Perrine v. Sega of America alleged the developer and publisher of “Aliens: Colonial Marines” pulled a “bait-and-switch,” hyping the game’s supposed exciting features in an advance gameplay demonstration. When the actual game was released, it allegedly bore little resemblance to the demo, and was bombarded by bad reviews and cries of “foul.”
Primary plaintiff Damion Perrine, joined later by plaintiff John Locke, filed a putative class action on April 29, 2013, in U.S. District Court for the Northern District of California against Sega of America Inc. and Gearbox Software LLC alleging fraud, negligent misrepresentation, breach of express warranties and violations of California consumer and business laws.
The complaint alleges the video game producers used the demo, which they knew would be more technically advanced than the actual finished game, to entice players to order the game before it was released or on its launch day, knowing that it is almost impossible for consumers to return newly purchased games for a refund.
Gearbox and Sega deny the allegations, but, on June 19, the parties informed the court a settlement had been reached. Then, lead plaintiff Perrine disappeared.
It took calls to 12 of Perrine’s friends and the hiring of a private investigator to determine that Perrine, 37, had been arrested on charges of weapons possession, assault and terroristic threats and was being held in the Allegheny County, Pa., jail, according to a declaration by plaintiffs’ attorney Benjamin Thomassen.
On July 30, the plaintiffs moved to withdraw Perrine as a class representative and said the case would proceed with California resident Locke as named plaintiff. But, by then, the settlement deal apparently had fallen apart.
That day, Gearbox filed a motion for partial summary judgment and to strike the plaintiffs’ class allegations. A motion hearing has been set for Sept. 10.
Plaintiffs are represented by Thomassen, Sean Reis, Mark Eisen, Rafey Balabanian and Christopher Dore of Edelson. Gearbox is represented by attorneys at Fenwick & West and O’Melveny & Myers. Sega’s attorneys are with Fenwick & West and Quinn Emanuel Urquhart & Sullivan.
Lisa Hoffman is a contributor to law.com.