GameStop Putative Class Action Can Continue, Says Judge

U.S. District Judge Robert B. Kugler ruled last week that a putative lawsuit against games retailer GameStop Corp could continue to seek damages for used games sold with limited content. The suit claims that consumers were cheated by a failure to disclose the used games’ limited features, and recently survived a GameStop motion to dismiss.

The plaintiffs are seeking refunds of every game purchased.

The case was filed by three gamers claiming that GameStop failed to inform customers that used games sold in the Texas-based retailer’s 6,500 stores would not include Internet-accessed content – a common feature of new games. As such, GameStop violated the New Jersey Consumer Fraud Act, claims the suit, as consumers ended up spending more than the cost of a new game in some cases, when factoring in the cost of downloading full content. Judge Kugler found that plaintiffs had a plausible and adequately pleaded case.

In recent years, games manufacturers have started to limit some content to those with single-use codes, granting gamers access to online or downloadable content for a limited time. If a hard copy of a game is resold, however, the new purchaser is limited to using content available through the disk – the one-use code will no longer give access to additional features, limiting the gamer’s options.

In their motion to dismiss, GameStop argued that in-store signs explained the problem and that games themselves, on their boxes and in marketing materials, notified buyers than some downloadable content may require further purchases. The gamers, however, argued that statements on GameStop receipts indicated how much they had “saved”, and the company’s website’s statement that “our used game trade program creates value for customers” were misleading and may in fact be false.

The suit, filed in New Jersey state court, was moved to federal court by GameStop. The plaintiffs are seeking refunds of every game purchased, between $10 and $15 per item. GameStop itself set the possible damages as high as $19 million, based on more than 430,000 used game sales in New Jersey stores between October 2010 and July 2012, when the suit was first filed.