HWW Secures Dismissal of Class Action Lawsuit Regarding The Elders Scrolls IV: Oblivion®
On March 13, 2012, HWW attorneys John Williams and Jason Nash obtained a dismissal with prejudice and denial of class certification in the putative class action captioned Walewski v. ZeniMax Media, Inc., et al. involving the critically acclaimed and hugely successful video game The Elder Scrolls IV: Oblivion® (“Oblivion”). Plaintiff Lawrence Walewski alleged that he experienced a programming glitch that caused the game’s secondary animations to cease functioning and terminated his ability to continue playing the game with a specific character after 450 hours of gameplay. Plaintiff filed suit in the Middle District of Florida alleging that Defendants’ advertisements touting the game as “open-ended” and capable of being “experienced at the player’s own pace” were fraudulent under Maryland law and that the game was unfit for its intended purpose in breach of the implied warranty of merchantability. Plaintiff purported to represent a nationwide class of all purchasers of Oblivion and demanded “complete disgorgement of all revenue” derived from Defendants’ sales of millions of copies of Oblivion on the Xbox 360, PlayStation 3, and PC platforms.
Defendants moved to dismiss Plaintiff’s Complaint on the grounds that Florida’s choice of law rules mandated the application of Florida, not Maryland, law. Following the District Court’s ruling that the determination of the applicable law was intertwined with the issue of class certification – but before Defendants were required to substantively respond to Plaintiff’s discovery requests – Defendants moved to strike Plaintiff’s class allegations as untimely. The District Court declined to strike Plaintiff’s class allegations, but held that Plaintiff must immediately move for certification of a class. On November 16, 2011, Plaintiff moved for certification of a class of “all persons or entities residing in the United States who purchased any version of the Elder Scrolls IV: Oblivion video game.” Defendants opposed Plaintiff’s Motion for Class Certification on the grounds that Plaintiff failed to allege an ascertainable class that satisfied the requirements of Rule 23, among others.
Magistrate Judge Baker agreed, and on January 30, 2012 issued a Report and Recommendation holding that Plaintiff’s proposed class definition was “fraught with difficulties.” Among the many difficulties, Magistrate Judge Baker found that “even if the parties were able to identify all purchasers of the game from all sources,” the individualized inquiries into whether each purchaser was injured by or even experienced the alleged defect “makes it especially difficult to cull appropriate class members from the ‘millions’ of game owners without extensive fact-finding” and that Plaintiff’s overbroad proposed class “impermissibly includes members who have no cause of action as a matter of law.” Magistrate Judge Baker further resolved the choice of law issue and held that Plaintiff did not have standing to maintain his claims under Maryland law. Magistrate Judge Baker accordingly recommended that the District Court deny Plaintiff’s Motion for Class Certification in its entirety and dismiss Plaintiff’s Complaint for failure to state a claim.
On March 13, 2012, District Judge Antoon affirmed and adopted Magistrate Judge Baker’s Report and Recommendation in its entirety. Stating that the Court “agrees entirely with the findings of fact and conclusions of law in the Report and Recommendation,” Judge Antoon denied Plaintiff’s Motion for Class Certification without leave to amend and dismissed Plaintiff’s Complaint for failure to state a claim without leave to amend.
