Hinkhouse Williams Walsh

HWW Secures Dismissal of Class Allegations In Second Lawsuit Regarding The Elders Scrolls IV: Oblivion®

On September 25, 2012, HWW attorneys John Williams and Jason Nash secured an order striking the class allegations in a putative class action captioned Edwards v. ZeniMax Media, Inc., et al., a carbon-copy of the Walewski v. ZeniMax Media, Inc., et al. (“Walewski”) case in which HWW obtained a denial of class certification and dismissal with prejudice on March 13, 2012. Plaintiff Landis Edwards, like Plaintiff Walewski before him, claims that he experienced a programming glitch in the hugely successful video game The Elder Scrolls IV: Oblivion® (“Oblivion”) that caused the game’s secondary animations to cease functioning and terminated his ability to continue playing the game with a specific character after hundreds of hours of gameplay.   

Plaintiff filed suit in the District Court of Denver County Colorado alleging that Defendants’ advertisements touting the game as “open-ended” and capable of being “experienced at the player’s own pace” were fraudulent under Colorado law and that the game was unfit for its intended purpose in breach of the implied warranty of merchantability.  Plaintiff purported to represent a class of “all persons or entities residing in the State of Colorado who purchased any version of the Elder Scrolls IV: Oblivion video game” 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 – all of whom were represented by HWW – removed the case to the U.S. District Court for the District of Colorado and moved to strike Plaintiff’s class allegations on the grounds that the Walewski Court already held that the putative class of “all persons or entities residing in the United States who purchased any version of the Elder Scrolls IV: Oblivion video game” failed to allege an ascertainable class and that the principles of comity precluded Plaintiff Edwards’ attempt to re-litigate this settled issue. 

Judge Daniel agreed.  Applying the Supreme Court’s mandate in Smith v. Bayer that federal courts are expected “to apply principles of comity to each other’s class certification decisions when addressing a common dispute,” Judge Daniel followed the “highly persuasive” opinion of the Walewski Court and held that Plaintiff Edwards’ class definition was hopelessly “inadequate because it is overbroad and includes Colorado residents who presumably purchased Oblivion from anyone, anywhere, at any time regardless of whether he or she was ever injured by or even experienced the alleged Defect.”  Because “the class definition does not sufficiently delineate which players and owners are correctly included in the class,” the Court struck Plaintiff’s class allegations for failure to define an ascertainable class.  Finally, Judge Daniel rejected Plaintiff’s attempt to argue that Defendants’ attack on Plaintiff’s class definition was premature and denied Plaintiffs’ demand for discovery, holding that “[t]o allow discovery when Mr. Edwards has alleged an unascertainable class would be futile.”