Grand Theft Auto online delay not actionable

McMahon v. Take–Two Interactive Software, Inc., No. EDCV 13–02032, 2014 WL 324008 (C.D. Cal. Jan. 29, 2014)

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.