May 2, 2013 at 6:59 PM ET
Angry over a game that "bore little resemblance" to the so-called "actual gameplay" shown in previews, indignant purchasers of the widely panned "Aliens: Colonial Marines" may get their day in court.
Edelson LLC, a law firm, has filed a class-action lawsuit on behalf of customers who pre-ordered or purchased the game on launch day, alleging that Sega and Gearbox Software — the publisher and developer of the "Aliens" title, respectively — falsely advertised the game.
"There were promises that Sega and Gearbox made about what the game was going to look like," Ben Thomassen, a lawyer for Edelson, told NBC News. "Promotional material of 'Aliens: Colonial Marines' was shown at several game conferences and expositions, and continued to be shown up until the game's release."
"When people viewed these kinds of things, they thought they knew what they were buying," Thomassen said. "These were promises about what the game was going to look like."
The suit, filed April 29 in U.S. District Court, Northern District of California, cites a number of different promotional events for "Aliens" put on by Sega and Gearbox at major industry trade shows and events like PAX and E3, saying that they did not accurately represent the final product gamers eventually received. Gearbox co-founder Randy Pitchford himself allegedly described these promotional materials as "actual gameplay," the suit says.
The shipped "Aliens" was criticized by many reviewers for being markedly different from the promoted version, with weaker graphics and artificial intelligence.
"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," Edelson's complaint stated. "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."
Additionally, the suit claims that Sega and Gearbox's use of embargo agreements with the media left customers with no other outlet for information about "Aliens: Colonial Marines" besides the inaccurate promotional material. Game critics were originally given review codes under embargo until Feb. 12 — the same day the game first became available to the general public. When the actual "Aliens: Colonial Marines" game was reviewed, it received dismal scores across the board — averaging a score well below 50 percent on the review aggregation site Metacritic.
The discrepancy between the early praise for "Aliens" and the weak final product has caused an outcry from members of the gaming press, who felt like unwitting accomplices in the alleged sham. Stephen Totilo, the editor-in-chief of the popular gaming site Kotaku, responded to the controversy with a post titled, “Apologies If We Wasted Your Time With That Preview.” Destructoid followed up on its review with an article saying, "We've been lied to by Randy Pitchford and Gearbox. We passed those lies onto the consumers."
When Pitchford himself was asked on Twitter for an explanation of why the game differs from the demo, the Gearbox co-founder replied, "That is understood and fair and we are looking at that. Lots of info to parse, lots of stake holders to respect." This public acknowledgment of the matter was noted in Edelson's filing.
Attorney Thomassen told NBC News he could see how the gaming press might have unwittingly participated in what Destructoid's Jim Sterling called "one great big lie."
"In this case, you can directly see that [the media] embargo had a real effect on people who purchased the game," Thomassen said.
But Thomassen added that the game industry, like any other consumer-facing industry, is legally obligated to provide its customers with accurate information — a standard that may have been irregularly applied to game companies in the past since the industry itself is still in its relative infancy.
"If you can't take their word for it, then whose should you be taking?" Thomassen said of Sega and Gearbox. "As the industry becomes more and more mainstream, hopefully people will come to expect a little more forthrightness."
Representatives for Sega and Gearbox did not respond to requests for comment on this story. We will update the story when we hear back from them.
Thomassen said for now, the case will proceed "as a normal putative class-action lawsuit." While he noted that it is "hard to predict an outcome" so early in a case's proceedings, when asked what Edelson hoped for as an ideal outcome, he said, "at this point we do think some sort of refund is appropriate."
This is hardly the first time that gamers have rallied together to take a game company to task for under delivering. Furor over the ending to "Mass Effect 3" caused developer BioWare to ultimately change the game's final cut-scenes. Activision Blizzard has faced ongoing legal problems with "Diablo 3" ever since the game was originally released with its controversial always-online requirement. And Edelson itself even took action against Electronic Arts in 2011 after gamers playing the PlayStation 3 version of "Battlefield 3" didn't receive copies of "Battlefield 1942" they were promised — a case that was resolved "not terribly long after EA announced that they would give players the copy of Battlefield 1943," Thomassen said.
Update 5/3: A representative from Gearbox released the following statement today:
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.
SEGA cannot comment on specifics of ongoing litigation, but we are confident that the lawsuit is without merit and we will defend it vigorously.