idell & seitel llp, 2008 the litigation horizon richard j. idell the idell firm llp

Idell & Seitel LLP, 2008

The Litigation Horizon

Richard J. Idell

The Idell Firm LLP


Litigation Horizon Overview

Potential Plaintiff Theories Products Liability Negligence Breach of Warranty California Consumer Legal Remedies Act

Defensive Strategies Class Action Lawsuits


Products Liability: Plaintiff’s Prima Facie Case

Defendant manufactured, distributed or sold the product

The product had a manufacturing defect when it left defendant’s possession

Plaintiff’s use of the product was reasonably foreseeable

Plaintiff was harmed; and The product’s defect was a substantial factor in

causing plaintiff’s harm.See, e.g. Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 134-35.


Negligence: Prima Facie Case

Defendant had a legal duty to conform to a standard of conduct to protect the plaintiff;

The defendant failed to meet this standard; The defendant’s failure was the proximate or

legal cause of the resulting injury; The plaintiff was damaged.

See, e.g., Ladd v. Cty of San Mateo, 12 Cal.4th 913, 917 (1996)


Breach of Implied Statutory Warranties

Implied warranty of merchantability. Cal. Civ. C. § 1792.

Implied warranty of fitness for a particular purpose. Cal. Civ. C. § 1792.1.

Implied warranties can only be disclaimed by conspicuous warning that product is sold “as-is.” Cal. Civ. C. § 1792.4


California Consumer Legal Remedies Act

California Civil Code Sections 1750 to 1784

Prohibits deceptive practices in a transaction intended to result or which results in the sale or lease of goods to any consumer.


California Consumer Legal Remedies Act

Required Notice Period At least 30 days before filing suit, the consumer

must give written notice to the defendant by registered or certified mail.

If prospective defendant agrees to an appropriate correction or other remedy within 30 days, plaintiff cannot sue. This defense does not apply to class-actions

under the CLRA, which will be discussed later.


Defenses to Claims that Video Games Cause Epilepsy

Seizures were unrelated to video game play.

The manufacturer provided adequate warnings of triggering of seizure players who were predisposed to epileptic seizures.

Plaintiff failed to heed the warnings.


General Defenses for Strict Product Liability Lawsuits

The defect was not the proximate cause of the injury.

The seller provided adequate warning.

Plaintiff misused the product.

Intervening third-party culpability.


General Defenses for Negligence Lawsuits

Plaintiff’s comparative negligence

Plaintiff’s assumption of risk

Plaintiff’s failure to mitigate damages


General Defense to Breach of Implied Warranty

Civil Code 1792.4 states that a “conspicuous” disclaimer, attached to product at the time of sale, must say: Goods are being sold on an “as is” or “with all faults” basis; Entire risk as to the quality and performance of the goods

is with the buyer; Should the goods prove defective following their purchase,

the buyer and not the manufacturer assumes the cost of all necessary service or repair.


Recent Consumer Cases Involving Epilepsy

Roccaforte v. Nintendo of America, 917 So. 2d 1143 (2005). Parents sued Nintendo after their child suffered

violent seizures while playing video games. After a seven-day trial, jury found in favor of

Nintendo. Appeals court ordered new trial because of

Nintendo’s discovery abuses.


Spypro New York Litigation

In March 2007, several gaming web sites reported that a plaintiff sued Vivendi Games, Sierroa Entertainment and Sony after her infant had an epileptic seizure while playing a video game.

The suit was reportedly brought in Supreme Court of New York (state trial court).

No reported decision is available.


Cases Regarding Violent Content of Video Games

James v. Meow, 300 F.3d 683 (6th Cir. 2002)

High school student shot several other students. Victims’ parents sued video game and movie companies, alleging that the content of video games and movies had desensitized the shooter to violence and “caused the murders.”

Plaintiffs sued for negligence and products liability.


James v. Meow, cont.

The court found:

Defendants did not owe a duty to third-party shooting victims.

Murderer’s actions were not reasonably foreseeable to defendants.

Products liability only applies to “tangible” products. The alleged defect – violent content – was intangible. Therefore, products liability did not apply.



Sanders v. Acclaim Entertainment, Inc., 188 F.Supp. 2d 1264 (D.C. Colo 2002) Plaintiffs sued video game makers, alleging that

violent video games caused the Columbine shootings.

Court concluded: Columbine shootings were not reasonably

foreseeable. Shooters’ criminal acts were a superceding cause of

harm to plaintiffs.


Sanders, cont.

Court distinguished between tangible and intangible properties. Products liability only applies to tangible

properties. Video game contents are intangible, so there was

no products liability cause of action.



Wilson v. Midway Games, Inc., 198 F.Supp. 167 (D.C. Conn. 2002) Plaintiff sued Midway for products liability, alleging

that violent video games made her son’s friend stab her son.

As in prior cases, court distinguished between tangible and intangible properties.

It declined to apply products liability to intangible content, such as video game content.



Video Software Dealers Assoc. v. Maleng, 325 F.Supp. 1180 (W.D. Wa. 2004) Video game manufacturers sued to enjoin

enforcement of a federal law restricting dissemination of violent video games to children.

Court found that video games were protected speech and that the law was unconstitutional because it was not narrowly tailored enough.

Court enjoined enforcement of the law.


Class-Action Cases

Smith v. Microsoft Corp., 04:08-CV-00061 (S.D. Tex. 1/4/08) Microsoft’s Xbox Live, an online gaming

community, was down for several weeks in December 2007.

Plaintiff filed a class-action lawsuit for breach of contract, breach of warranty and negligent misrepresentation.

Class has not been certified.


Class-Action Cases

In re. Grand Theft Auto Video Game Consumer Litigation, 1:06-MD-1739 (S.D.N.Y. 2006) Plaintiffs sued for fraud on the basis that the

game should have been rated “Adults Only.” Apparently there was readily available code that

would add sexually graphic content to the game. The settlement agreement, in which defendants

denied all liability, was filed on 11/19/07.


Class-Action Cases

Nunez v. Microsoft, CV:07-2209 (S.D. Ca. 2007). Class-action lawsuit alleges that Halo 3 video

game, which was designed and sold for use on the Xbox console, makes the Xbox freeze or crash while the game is being played.

Sues for breach of implied warranty of merchantability and fitness for a particular purpose.

Class has not been certified.


Class-Action Cases

Ray v. Microsoft Corp., 2:06-CV-01720 (W.D. Wash. 2006) Plaintiff alleged that his Xbox 360 console was

destroyed by a software update from Microsoft. Filed a class-action complaint against Microsoft

for breach of contract and negligence. Microsoft moved for summary judgment, saying

he had been wholly reimbursed for his Xbox. The parties stipulated to a dismissal w/ prejudice.


Prerequisites for Bringing Class Actions in Federal Court

Rule 23(a) requires: The class must be so numerous that joinder is

impractical. There must be common questions of law or fact. The claims or defenses of the class.

representatives must be typical of the class. The representatives must fairly and adequately

protect the interests of the class.


Grounds for Bringing Class Actions in Federal Court

Plaintiff must show either that: There is a risk of prejudice from separate actions

establishing incompatible standards of conduct; Judgments in individual lawsuits would adversely

affect the rights of other class members; The party opposing the class has acted in a way

applicable to the class generally; or Common questions of law or fact “predominate”

over those affecting individual members.Rule 23(b)


Prerequisites for Class Action Under Cal. Civ. C. 382

California Civil Code Section 382 establishes two requirements: Existence of an ascertainable class

Depends on class definition, size of class, means of identifying the class

Well-defined community of interest in questions of law and fact involved in the case. Predominant questions of law or fact; Class representatives’ claims are typical of class Class representatives can adequately represent the

class.


Prerequisites for Class Action Consumer Legal Remedies Act

Cal. Civ. C. § 1781(b) is the only way to bring a class-action under Consumer Legal Remedies Act.

Consumer must put the prospective defendant on notice prior to filing suit.

Total damages must be $1,000.00 or more.


Prerequisites for Class Action Consumer Legal Remedies Act

The court must permit class certification if: It is impracticable to bring all members of the

claim before the court. The questions of law or fact common to the class

are substantially similar and predominate over individual questions.

Claims and defenses of the representative plaintiffs are typical of the class; and

Representative plaintiffs will fairly and adequately represent everyone’s interests.

idell & seitel llp, 2008 the litigation horizon richard j. idell the idell firm llp

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