Hinkhouse Williams Walsh

Eleventh Circuit Affirms Denial of Class Certification and Dismissal of Class Action Lawsuit Regarding The Elder Scrolls IV: Oblivion®

On December 20, 2012, the Eleventh Circuit Court of Appeals affirmed the denial of class certification and dismissal with prejudice obtained by HWW in the putative class action lawsuit captioned Walewski v. ZeniMax Media, Inc., et al. involving the popular video game The Elder Scrolls IV: Oblivion® (“Oblivion”).  Plaintiff Lawrence Walewski, purportedly on behalf of a putative class of “all persons or entities residing in the United States who purchased any version of the Elder Scrolls IV: Oblivion,” filed suit in the Middle District of Florida alleging that a programming glitch in Oblivion caused the game’s secondary animations to cease functioning and forced him to stop playing the game with a specific character.  Plaintiff alleged that his inability to continue playing with the specific character rendered Defendants’ advertisements touting the game as “open-ended” and capable of being “experienced at the player’s own pace” fraudulent and breached the implied warranty of merchantability under Maryland law.  Defendants moved to dismiss the complaint on the grounds that Plaintiff’s claims were governed by Florida law, not Maryland law, and opposed Plaintiff’s Motion for Class Certification on the grounds that the complaint did not allege an ascertainable class, among others. 

On January 30, 2012, Magistrate Judge Baker agreed with Defendants and held 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 held that Plaintiff did not have standing to maintain his claims under Maryland law and recommended that the complaint be dismissed.  On March 13, 2012, District Judge Antoon affirmed and adopted Magistrate Judge Baker’s Report and Recommendation in its entirety, denied Plaintiff’s Motion for Class Certification, and dismissed Plaintiff’s complaint without leave to amend. 

On appeal, Plaintiff argued that the district court should have allowed him to conduct discovery relevant to class certification and the choice of law determination, erred in denying class certification, and should have allowed him to amend his class definition and complaint.  The Eleventh Circuit disagreed.  Without holding oral arguments, the Eleventh Circuit extensively quoted Magistrate Judge Baker’s well-reasoned analysis and held that the district court did not abuse its discretion in ruling that the class was not adequately defined or clearly ascertainable.  The Court further held that the district court did not abuse its discretion in denying Plaintiff’s requests for discovery and affirmed the dismissal of Plaintiff’s complaint. 

HWW attorneys John T. Williams and Jason H. Nash prepared the Appellate Brief.  Judges Tjoflat, Carnes and Kravitch prepared the Court’s per curiam opinion.