Lawsuit Filed Against Sega, Gearbox for False Advertising

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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