Was Aliens: Colonial Marines fraudulent? Our legal expert says the lawsuit may be serious
Last week I read the story about Sega and Gearbox being sued for false advertisement over the disastrous launch of Aliens: Colonial Marines, and I had a reaction that was probably shared by a lot of people: “Wait, can that actually happen?”
This seemed like the action of an enraged Aliens fan who happened to have a Law degree and too much spare time. So we got in touch with a legal expert to find out whether this is actually a suit that represents a threat to these companies.
The story thus far
A group called Edelson LLC has brought a class action lawsuit against Sega and Gearbox that says the early footage of Aliens: Colonial Marines used for marketing and trade show demonstrations claimed to be “actual gameplay” when it was actually different from what appeared in the final game.
They allege that Sega conspired to prevent early purchasers of the game from finding out about this by embargoing press reviews until the morning of release. They're after damages for everyone who pre-ordered the game or bought it on release day.
Does this actually make any sense though? Sega doesn't think so. “We are confident that the lawsuit is without merit and we will defend it vigorously,” the company said in a statement.
The case might not be so clear cut though.
“The class action lawsuit might be successful in getting an injunction to prevent further distribution of the product or to stop these types of fraudulent ads in the future,” said Ken LaMance, a lawyer with experience in the entertainment business and editor of LegalMatch.com's law library. “But what it really sounds like they’re after is money – lots of it, since this game generated a significant amount of revenue. “
LaMance said that the suit would probably be under the Lanham Act Section 43(a)(1)(B) which says (warning: legal jargon,) “Any person who [..] uses in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.”
“I don’t know of any specific comparable cases where a video game company has been sued for false advertising like the Aliens lawsuit,” said LaMance. “But the general principals of false advertising lawsuits will apply just like any other business lawsuit: was it 'deceptive in nature'?”
That last part makes things a little bit tricky to predict. LaMance referred to it as a “jury decision,” or an issue where the severity of the “deception” will look different depending on the person who is looking.
The one thing that may tip the balance in the class action's favor is that the UK's Advertising Standards Authority has already issued a statement to a Reddit user who contacted them about Colonial Marines. The statement said that Sega Europe had used demo footage created using the in-game engine, and that Sega “understood the objections raised about the quality of the game in relation to the trailers, but explained they weren't aware of these issues when the trailers were produced, in some cases several months before release.”
Sega acknowledged the objection, and opted to add a “demo footage” disclaimer to their website and online trailers. Which sounds like Sega has already admitted to everything that the plaintiffs need to prove.
According to LaMance, it might not be enough that Sega says they didn't know the demo version would vary from the final product. “It won’t make a difference whether anyone was actually harmed, or the false advertising was due to a mistake,” he said.
While it's important to note what might happen in the suit if it does go to court, LaMance said that it's very unlikely that it ever will.
“The business has too much to lose leaving their fate in the hands of 12 strangers in a courtroom, and the plaintiffs are just looking for the behavior to stop, plus a healthy payday for their efforts,” he said.
Law & Order: TVGU
Lawyers are difficult people to pin down for definitive answers to non-definitive subjects, so I couldn't get LaMance to make a prediction about the outcome of this suit. However, I did ask whether he'd be willing to take the case if it was presented to him.
“The plaintiff’s lawyers are most likely taking this case on a contingency fee basis, meaning they will only get paid if they win,” he said, suggesting that the lawyers involved probably wouldn't be here if they didn't believe there was a decent chance they could win. “To me, it seems the proof of deception is fairly strong (graphical changes that anyone can understand), and the payout very high (millions of copies sold), warranting the risk.”
While we may not get a high drama episode of Law & Order: TVGU (Terrible Video Games Unit) to report on, LaMance thinks the case will still have some consequences.
“My guess is this will settle out of court with a confidential settlement agreement, so we may never know all of the terms. This will still be a warning shot to other businesses in the industry: Be more careful, for fear of being subjected to a copycat lawsuit.”
The worst case scenario here for Sega is probably just succumbing to a payout before this thing goes to trial. It wont devastate the company, but that certainly wouldn't help them weather the current rough tides for game publishers. Even if they win, the case is still an annoyance that sucks money away from the games and into the coffers of the lawyers. Which is an important thing to remember if you're starting to feel a bit of schadenfreude at the prospect of Sega getting burned for marketing a crappy game too aggressively.
Ultimately, the lasting impact of this case could simply be a lot more disclaimers and careful steps from game companies who don't want to get caught up in this mess at all.