Plaintiffs brought the usual California claims based on
plaintiff’s advertisements for Grand Theft Auto Vvideogame as including an
online multiplayer component, even though they began selling GTAV on September
17, 2013, without making GTA Online available until October 1, 2013.
The court rejected T2’s standing argument—plaintiffs adequately
alleged that they lost money or property because they wouldn’t have bought the
game when they did if they’d known the truth—but dismissed the complaint
anyway. This wasn’t a loss of use claim, but rather an economic injury: they
got less than they paid for (and lost the time value of the money). Likewise,
though injunctive relief was unavailable, their restitution claims weren’t
fatally flawed. While loss of use can’t
support restitution because it doesn’t represent a benefit to the defendant,
plaintiffs’ request for refund for the money they paid for the online feature
would count as restitution.
The complaint failed, however, to allege fraudulent,
unlawful, or unfair conduct. T2 argued
that before release, it made widely reported public announcements of the true
launch date and that the packaging explicitly stated that “access to special
features ... may not be available to all users.” The court rejected the first argument—media reporting
can’t fix misleading statements on packaging—but accepted the second. The
package doesn’t indicate that online play would be immediately available. Though it prominently stated “Featuring Grand
Theft Auto Online,” it also stated that “[a]ccess to special features [defined
to include online play] may require internet connection, may not be available
to all users, and may, upon 30 days notice, be terminated, modified, or offered
under different terms.” “These disclaimers clearly indicate that the online
component of GTAV is a ‘special feature,’ which ‘may not be available to all
users.’” This broad language provided
clear notice that online play, “despite its prominent highlighting on the
packaging, may not be immediately available, regardless of the reason for the
unavailability, even from the time of the initial release of the game.” Thus, the packaging wasn’t plausibly
deceptive.
As a result, plaintiffs couldn’t plead actual reliance. The “immediate cause” of the loss wasn’t a
misrepresentation, but their own incorrect conclusions. Given that they claimed
to be dedicated video game players, “their reliance upon Defendants’ alleged
misrepresentation on the packaging and their conduct in purchasing GTAV were ‘in
the light of [their] own intelligence and information ... manifestly
unreasonable.’”
There was also no unlawfulness. There could be no CLRA violation because
software and online services aren’t “goods” or “services” covered by that law. Nor was there unfairness. Though the caselaw
is unsettled about the meaning of “unfairness” in consumer cases, plaintiffs
couldn’t satisfy any of the tests.
Though T2 could have done more to notify purchasers of the October 2013
launch of online play, the disclaimers were adequate, not “oppressive,” and T2
didn’t cause substantial injury to consumers.
Because online play was a special feature that could always be
unavailable, its initial unavailability “could not have represented a
substantial injury to customers, as subjectively significant the feature may
have been for Plaintiffs.”
Amendment would be futile, so complaint dismissed with
prejudice.
1 comment:
I "love" the perversity of the two disclaimer holdings. The widely reported news that many players saw and complained about doesn't count, but the small print on the box that few players read and fewer understood does.
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