Gearbox claims it "doesn't belong" in the Colonial Marines class-action suit

Posted on July 31, 2014 - 4:30pm by Ryan Conway

With the class-action lawsuit filed against publisher SEGA and developer Gearbox Software over claims of false advertisement either nearing a settlement or forcibly re-entering negotiations, Gearbox has suddenly decided to fight the charges and fight to have itself removed from the suit.

Aliens: Colonial Marines is highly regarded as one of the worst and most disappointing games of 2013 and perhaps even the seventh console generation as a whole. After catching glimpses of some very well put together stage demos and promotional videos, fans of the franchise got very excited to get their hands on it.

Unfortunately, these materials were not an accurate representation of how glitchy and broken the game actually was. It was panned by critics and due to the negative reviews and overall word of mouth, Colonial Marines was a huge flop. 

While most gamers avoided it, many still bought the game either through pre-orders or they bought it ASAP on good faith (because Borderlands). A good portion of these consumers didn't feel overly happy about their purchase after the fact, some even banded together to pursue a class-action lawsuit against both Gearbox and SEGA for false advertising.

Here's a key quote from the original suit document, which was filed under the jurisdiction of a Northern California District court in April 2013:

"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. 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."

If you need a better idea of the sort of false advertising the plaintiffs are referring to, Jim Sterling sums it all up quite nicely:

Gearbox promised advanced enemy AI...

Aliens floating in mid-air, getting stuck in walls, and performing the can-can in the corner, not so advanced.

After spending about a year in litigation, the plaintiffs appeared to be on the verge of reaching a settlement with SEGA on June 26. But according to Polygon, that deal went south, after one of the two men who filed the suit on the core group's behalf (Roger Damion Perrine) seemed to had disappeared without a trace. Since Perrine had failed to sign the proper documentation to bring this whole debacle to a close (nor authorizing anyone to do so in his stead), the settlement wasn't reached. 

A private detective (hired by the attorneys representing the plaintiffs) recently discovered that Perrine is currently in a Pennsylvania prison awaiting trail for charges of "simple assault and terroristic threats with intent to terrorize another." So with that in mind, the plaintiffs filed a motion yesterday to have Perrine removed from the settlement.

*Deep breathes*

Now here's where Gearbox comes in. Now that this settlement (which put the blunt of the blame on SEGA and may have left Gearbox out of this mess entirely) is starting to fall through, the developer filed its own statement with the court, along with a request for a summary judgment. This is likely to cover itself just in case settlement talks open up again and the plaintiffs try to rope it back in.

In the statement, Gearbox argues that it "never belonged in this lawsuit" and as publisher, SEGA should be the party to deal with the blunt of the lawsuit (which the studio properly gives the publisher credit for), since it was responsible for funding the project and its marketing.

"Gearbox is a video game software developer.  It was neither the publisher nor seller of the video game at issue. For more than a year, Gearbox has quietly abided the plaintiffs' claims so that Sega, the game's publisher and the party responsible for the game's marketing and sale, could assume the defense of this lawsuit. Gearbox has honored its publisher's request in spite of plaintiffs' highly-publicized-and highly-misplaced-claims against Gearbox. At this point, however, Gearbox is obligated to pursue its rightful departure from this case."

The developer then went on to dispute a couple of the suits claims against it. The first of which is the accusation of Gearbox embezzling money given to it by SEGA for the development of Colonial Marines and putting it into other projects such as Borderlands.

Not only did Gearbox state this isn't true but to dispute the claim, the studio made its own claim in that it had put millions of dollars worth of its own money into the project to finally complete it after six/seven years worth of development time and was not compensated by SEGA for that extra effort. On the topic of royalties, the studio also said A:CM didn't sell well enough for the studio to earn a bonus payment.

With the regards to the accusations of the Colonial Marines E3/PAX stage demos being built with a different engine than that of the final product, Gearbox stuck to its guns and insisted it had used the Unreal Engine for both.

Gearbox's statement was wrapped up with the argument this case should not be tried as a class-action suit, on the grounds that each name attached to the suit bought the game for varying reasons, which means they all have different reasons for being dissatisfied. Oh and the studio also believes there's a good chance a sizable chunk of these players bought the game without seeing the demos in question, which means they don't have a suitable reason to feel mislead.

If Gearbox is successful in getting the class-action status revoked, the accused parties would only have to deal with the one remaining founder (John Locke) who filed the suit on the group's behalf, that's if the court approves the group's plea to have Perrine removed. 

It'll be interesting to see how this cluster fuck of a mess turns out. With SEGA and maybe even Gearbox likely to pay out big if Perrine is wedged out and if GB's plea for a judgment summary goes unheeded, this could set a new precedent for what companies can and can't get away with in terms of live event demos.

...Yeah, given Pitchford proudly boasted the E3/PAX demos as a genuine representation of what the final gameplay would be like (even though he admitted it was taken from an alpha build), Gearbox isn't 100 percent innocent in all this. Seriously, how can an alpha build be so much more impressive than the final product?

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