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Lawsuit Filed Against Sega, Gearbox for False Advertising

By - Source: Polygon | B 32 comments

The aliens are biting Gearbox and Sega in the ass from a legal standpoint.

Law firm Edelson LLC has filed a lawsuit in the Northern District of California court against Sega and Gearbox Software over Aliens: Colonial Marines. Filed on behalf of plaintiff Damion Perrine, the lawsuit cites a number of California civil (Section 1770) and business (Section 17200-17210, Section 17500-17509) codes, accusing both companies of false advertisement.

The accusation stems from the obvious differences between the Aliens: Colonial Marines demos shown at trade shows like PAX East and E3, and the final product that was released earlier this year. These demos were criticized as being graphical superior to the finished product, having better AI and offering entire levels not available in retail. The filing even quotes Gearbox co-founder Randy Pitchford who said the demos were "actual gameplay footage".

The lawsuit goes on to claim that the press were under embargo with their reviews until the early morning of February 12, the day Aliens: Colonial Marines went retail. This prevented customers who pre-ordered the game and "early adopters" from having knowledge of the discrepancies between the advertised product, and the actual finished product beforehand. Because of this, the lawsuit seeks damages for anyone who purchased the game on or before the launch date.

Let's stop right there for a moment. Review embargoes are nothing new to journalists – hell, even news embargoes are rather common. It's highly doubtful that Sega and Gearbox enforced an embargo to cover up discrepancies until the last minute. It's possible, but unlikely.

"Each of the 'actual gameplay' demonstrations purported to show consumers exactly what they would be buying: a cutting edge video game with very specific features and qualities," the claim reads. "Unfortunately for their fans, Defendants never told anyone — consumers, industry critics, reviewers, or reporters — that their 'actual gameplay' demonstration advertising campaign bore little resemblance to the retail product that would eventually be sold to a large community of unwitting purchasers."

The problem with showcasing live product demos is that things can change between then and the final product. It's a demo. However what seems to be missing from the current equation is that Sega and Gearbox didn't showcase the gameplay walkthrough in its final state before the game shipped. That could have prevented some of the negative backlash.

"The gaming community had a strong reaction to the release of Aliens: Colonial Marines," Edelson LLC's Ben Thomassen told Polygon on Wednesday. "We think the video game industry is no different than any other that deals with consumers: if companies like Sega and Gearbox promise their customers one thing but deliver something else, then they should be held accountable for that decision."

To be honest, fast food restaurants do it all the time, serving up awesome-looking burgers on TV but sliding customers an ugly greasy ball of meat and bread in real-time. But again, the problem with Aliens: Colonial Marines is that the "actual gameplay footage" presented by Gearbox at conferences – which was also used in game trailers to promote the product -- was all fans had to go on when making a purchase before and on launch day.

So, false advertising or not? If anything, this fiasco may change the way developers and publishers present their work in progress from here on out. Definitely make sure your demo doesn't look better than the final product.

UPDATE: Sega and Gearbox has responded to the lawsuit.

"SEGA cannot comment on specifics of ongoing litigation, but we are confident that the lawsuit is without merit and we will defend it vigorously." -Sega

"Attempting to wring a class action lawsuit out of a demonstration is beyond meritless. We continue to support the game, and will defend the rights of entertainers to share their works-in-progress without fear of frivolous litigation." -Gearbox

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  • 17 Hide
    Onus , May 3, 2013 1:22 PM
    I've never been one to buy a game on release day (bugs are not uncommon), but if the claim "actual gameplay footage" is untrue, then it is indeed false advertising. Telling lies, particularly in pursuit of financial gain, needs to have serious consequences.
Other Comments
  • 9 Hide
    bigshootr8 , May 3, 2013 1:06 PM
    While I understand why people are upset with the game I think its also fair to say if you don't do your research prior to purchasing a game then you are a fool.
  • -4 Hide
    spartanmk2 , May 3, 2013 1:07 PM
    Glad the games im interested in havent been plagued by things like this or DRM (SC5)
  • -3 Hide
    Parsian , May 3, 2013 1:19 PM
    I particularly dont like Pitchford. He takes something amazing and turns into shit. I hope he learns a fucking lesson. Now he is ruining my all time favourite Brother in Arms...
  • 17 Hide
    Onus , May 3, 2013 1:22 PM
    I've never been one to buy a game on release day (bugs are not uncommon), but if the claim "actual gameplay footage" is untrue, then it is indeed false advertising. Telling lies, particularly in pursuit of financial gain, needs to have serious consequences.
  • 5 Hide
    g00fysmiley , May 3, 2013 1:26 PM
    yea i wait till a few months after a title is released to purchase it soemtimes a year or two depending on what i am willing to pay for it (exceptions for WoW expantions and a select few games like portal 2). but if the demo did in fact claim to be actual game footage that was not in the game and ha dbetter art/rendering than the actual game can deliver then i would say their lawsuit has merit
  • 1 Hide
    azgard , May 3, 2013 1:29 PM
    Right, Gearbox call's it frivolous that the end product in almost every shape and form was stripped down from the nearly 1 year old 'game play' demo they presented. Normally it's industry practice to release demo's that are small pieces of the resulting end product, with the final product building up from that, instead they took pieces away shoving this crap into market as fast as possible and when the ball dropped pointed fingers at everyone else saying it was someone else's fault like little children. Gearbox and Sega are going to spend a lot of money on this lawsuit, if it goes through both of them are closing shop, they sure as hell wont be able to afford it.
  • 2 Hide
    teh_chem , May 3, 2013 1:42 PM
    I have never played this. Is there anyone here who saw (or played) the demo, who later bought the game that can give merit to these ideas?
    It sounds like a butthurt consumer. If the demo really was THAT different from the actual gameplay, then I retract my statement. But places like E3 are usually for showing works in progress.
    Regardless, the terminology "actual gameplay" does not mean "actual retail version gameplay." It just means that the images aren't pre-rendered/scripted movies. It was "actual" demo gameplay. I'd be fairly certain to think that there's some disclaimer that went along with the demo version that explicitly states that it may or may not be similar to the final release.
    I looked at the slideshow comparing the 2012 and 2013 versions--I wouldn't say that the differences are significant to claim false advertising.
    Lastly, be an informed consumer. Don't assume that a demo appropriately represents a final release. It goes both directions--sometimes a demo is much WORSE than the final version. Wait for official reviews, and don't be trigger-happy.
    I especially don't see this having merit for anyone who pre-ordered the game. That pre-supposes that they were going to buy the game regardless of review...
  • -1 Hide
    slomo4sho , May 3, 2013 1:50 PM
    "You mean proving gaming demos that included content that is actually not in the game is false advertisement?"
  • -4 Hide
    HikariWS , May 3, 2013 2:14 PM
    Well during showcase demo they wanna present what's best, but sometimes it may not end up being possible in production software.
    If it is this way, then Rare should be sued too for Banjo Tooie. Banjo Kazooie promoted it as going to have some neat features, that weren't available at all.
  • -1 Hide
    dalethepcman , May 3, 2013 2:17 PM
    Quote:
    ...... Gearbox and Sega are going to spend a lot of money on this lawsuit, if it goes through both of them are closing shop, they sure as hell wont be able to afford it.


    Uhh... whatever this guy is smoking, stay away from. It has made him retarded.

    The most anyone could claim in damages in the retail value of the software. With how poorly this game sold neither Sega nor Gearbox would "close shop" even if they refunded 100% of the purchases done on or before release day.

    Yes the game sucked, it happens all the time.

    This game was set to be another Duke Nukem with the amount of developers that had been involved with it. So go to the team that got Duke Nukem out, gearbox to the rescue. Instead of dragging out the development, they just decided put as much polish on the turd as possible, then released whatever they had.

  • 2 Hide
    iam2thecrowe , May 3, 2013 2:33 PM
    should report all the dodgy PSU manufacturers for false advertising over this. its much more of a problem that has been going on for years.
  • 0 Hide
    Afrospinach , May 3, 2013 2:47 PM
    Eh, fast food was a bad example. You eat your burger not stare at it so it is not really misleading advertising. Dressing up a game to look like more than it is seems a lot more misleading. Good AI is a game play element and if it is not there when you actually get to playing...
  • 0 Hide
    cabose369 , May 3, 2013 3:02 PM
    someone should sue EA for saying that SimCity 5 was going to be so awesome and full of great features and then providing a pile of sh!t!
  • 1 Hide
    Mike Honcho , May 3, 2013 3:33 PM
    You know what could've prevented some of the negative backlash? The game they showed. Honestly I hope they lose bad on this one. It was a clear bait and switch move and they deceived thousands of people in order to make millions of dollars.
  • 0 Hide
    upgrade_1977 , May 3, 2013 4:24 PM
    Yeah, this was definitely scandalous on gearbox's and sega's part. They need to return everyone's money.
  • 1 Hide
    STravis , May 3, 2013 4:30 PM
    Only folks who win from these lawsuits are the lawyers.
  • 3 Hide
    Mike Honcho , May 3, 2013 4:31 PM
    You know what could've prevented some of the negative backlash? The game they showed. Honestly I hope they lose bad on this one. It was a clear bait and switch move and they deceived thousands of people in order to make millions of dollars.
  • -1 Hide
    DryCreamer , May 3, 2013 4:45 PM
    One of the things that came up in earlier articles about this mess is that Gearbox took all of Sega's money, used it to build Borderlands 2, and then delivered a Aliens game that just barely met the contract stipulations.
    I think this lawsuit as a small amount of merit, because ultimately the customer paid for one product and delivered another. That's different than if a customer got to play a product first and then decided whether to buy it.
    Dry
  • -1 Hide
    everygamer , May 3, 2013 5:02 PM
    Hmm, easily solved in the future, before every demo video or gameplay a message "Gameplay and graphics may differ in the final retail product, everything displayed here is for demonstration purposes only"
  • 0 Hide
    itchyisvegeta , May 3, 2013 6:05 PM
    "To be honest, fast food restaurants do it all the time, serving up awesome-looking burgers on TV but sliding customers an ugly greasy ball of meat and bread in real-time. "
    Don't know about you guys, but I am usually pretty happy with how my food looks, compared to the picture. Funny thing is, when my fast food was not as advertised, I have either got it replaced, gotten my money back, or both!
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