Colorado citizen Landis Edwards bought the online quest game Elder Scrolls: Oblivion. He played it, a lot. In fact, he played it until it broke. According to Mr. Edwards, the game suffered from an animation defect that occurred after about 200 hours of gameplay.
So Mr. Edwards sued, on behalf of a class of Colorado residents who had also bought the game. Edwards v. Zenimax Media Inc., No. 12-cv-00411-WYD-KLM, 2012 U.S. Dist. LEXIS 137520 (D. Colo. Sep. 25, 2012). What Mr. Edwards didn’t mention was that his lawsuit was a copycat of another class action filed by the same counsel. Walewski v. Zenimax Media Inc., 2012 U.S. Dist. LEXIS 33474, 2012 WL 847236 (M.D. Fla. Mar. 13, 2012). The Middle District of Florida had denied certification in that case because the class was overbroad.
Zenimax moved to strike the class allegations. It argued that, like the previous class, this one was overbroad. (A sensible argument, since the definition was largely the same.) But it also argued that, as a matter of comity, the court should strike the class allegations in this copycat case.
The plaintiff argued against applying the principle of comity, but, citing Smith v. Bayer Co. the court agreed its use was appropriate.
First, the General Allegations in both complaints, including the explanation of the Elder Scrolls Franchise, the Defendants’ alleged representations regarding gameplay of Elder Scrolls IV: Oblivion, the allegations concerning the animation defect; and the damages suffered by purchasers are all identical.
Second, in both complaints the facts relating to the named Plaintiffs are substantially similar because both named plaintiffs allege that they viewed Defendants’ advertisements and representations regarding Oblivion gameplay, that they were unaware of the Defect, and that they would have altered their decision to purchase Oblivion if they had known. Additionally both plaintiffs claim they experienced the Defect while playing Oblivion, which impeded gameplay progression and now both plaintiffs no longer play Oblivion because of the Defect. Third, the complaints contain nearly identical claims. …
The only difference is that the Edwards complaint addresses all persons or entities residing in Colorado, whereas the Walewski complaint addresses all persons or entities residing in the United States.
Given that the complaints and the class definitions in particular are substantially similar, I find the opinion in Walewski to be highly persuasive and relevant to the resolution of the Motion to Strike in this matter.
And, like the Middle District of Florida before it, the court found that the class was too broad to certify:
I find that this definition is 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. Further, it is not limited to those persons or entities who purchased Oblivion from the Defendants and therefore includes people who purchased a copy of the game–new or used–from anyone else. I also note that even if a class of purchaser presently was ascertainable, sales of Oblivion will continue, rendering an alleged class of "all purchasers" further unascertainable because membership in the class would be in constant flux.
So it denied certification.
What can defendants take from this opinion? Aside from being yet another good explanation of overbroad class definitions, the court also explained why the doctrine of comity–as discussed in Smith v. Bayer Corp.–is not necessarily as useless as the Seventh Circuit may believe.