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Grand Theft Auto

We now know how many people signed up for the Grand Theft Auto: San Andreas class action settlement out of the millions of members in the purported class.

Tier 1 (up to $35.00) (no exchange required): 416
Tier 2 (up to $17.50) (exchange required): 22
Tier 3 ($10.00) (exchange required): 131
Tier 4 ($5.00) (no exchange required): 2,050
Disc Exchange w/o cash: 57

2676 total claimants, receiving a total cash value of at most $26,505, though likely even less than that, given that the plaintiffs’ attorneys record no actual cash distribution.

The seven “representative” class members are asking for approval to receive another $24,500, or nearly half of the total cash recovery.

Of course, as we’ve discussed, none of these people had a legitimate cause of action or suffered any legally cognizable injury. But how much are the plaintiffs’ attorneys (from thirteen different offices of twelve different law firms!) asking for for this travesty of a lawsuit and settlement–one that was entirely redundant of the taxpayer-funded investigation conducted by the Los Angeles district attorney? They claim their time devoted to the litigation was worth $1,317,433, but are “generously” claiming a 28% discount for a total fees-and-costs request of $1 million.

Recognizing that this 3774% contingent fee looks fishy to the least scrutinizing of judges applying Rule 23 review, the plaintiffs have sought to inflate the appearance of accomplishment through a $870,000 cy pres award to the National PTA and ESRB. (As I’ve discussed, cy pres awards that do not directly benefit class members should not be used to justify fee awards.) They also inflate the award by claiming that the costs of notice, administration and disk replacement should be attributed to the size of the accomplished result, thus puffing matters up to over $2 million, consisting nearly entirely of empty calories for the plaintiffs they purport to be representing.

Alas, I was the only class member to docket a formal objection to this rip-off. (While it was my idea to object, I can take no credit for the objection brief, which was written by my attorney, Larry Schonbrun.) On Thursday, the plaintiffs’ attorneys filed a brief defending the settlement, with many cites to Overlawyered as ad hominem attacks on the objection. The court’s hearing is June 25.

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Back in 2005, when the first lawsuits were filed over the Grand Theft Auto hot coffee mod, I wrote:

Me, I’m just amused by the thought of class action attorneys trolling for a named plaintiff parent who will testify that, while she was okay for her little Johnny to buy a game involving drug dealing, gambling, carjacking, cop-shooting, prostitution, throat-slashing, baseball-bat beatings, drive-by shootings, street-racing, gang wars, profanity-laced rap music, violent homosexual lovers’ quarrels, blood and gore, and “Strong Sexual Content,” she is shocked, shocked to learn that the game also includes an animation at about the level of a Ken doll rubbing up against an unclothed Barbie doll with X-rated sound effects…

Alas, Take Two games has given in to the blackmail and settled the case, but a sense of how frivolous it was can be seen from the following deposition excerpt of lead plaintiff Brenda Stanhouse, a schoolteacher in Belleville, Illinois, who will receive $5000 for her role in the litigation. Recall that Mrs. Stanhouse is alleging she was defrauded because she would not have bought a game that could be modified to include “pornography,” but take a look at pp. 67 ff. of the deposition, where she makes clear she didn’t have the faintest idea what was in the game that she did buy. Readers: type your favorite Stanhouse deposition excerpts in the comments.

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A reader asks about yesterday’s post:

  • Shouldn’t the 85-year-old grandmother &/or the 14-year-old’s parents (where are the 14-year-old’s parents, please?) be hauled into court and charged with contributing to the delinquency of a minor? If this was a grandfather, he likely would be in court on charges ….
  • Has anyone asked the 14-year-old how, where, or from whom he got the extra scenes for the game??
  • Said grandmother is now lead plaintiff in class-action lawsuit against game’s maker and others, claiming . . . what?
  • How soon will this lawsuit be thrown out; how soon will it be declared “frivolous,” and how soon will the lawyers and the legal firm who filed this suit be either disbarred or sanctioned (or should they be punished at all)?

  1. There’s no reason to charge anyone with delinquency of a minor. One can question the grandmother’s or parents’ wisdom, but they’re allowed to expose their kids to R-rated material. The distributors of the modification to the game might have trouble if they aren’t screening for age, but no one seems to seek to go after the shallow pocket.
  2. The complaint makes no effort to claim that the kid ever had or accessed the extra scenes. I suspect the lawyers will claim that they don’t need to prove that to collect damages. They’re alleging the grandmother was deceived, that the defendants engaged in false advertising, that she wouldn’t have purchased a game if she had known about the hidden sex scenes, and that disgorgement of profits is appropriate—and not that the grandmother or the grandson was actually harmed in any way. I’ve made the nine-page complaint available on the Documents in the News page on the AEI Liability Project web site.
  3. One hopes the lawsuit will be thrown out eventually, but the Pelman decision (Jan. 27) means that the lawsuit almost certainly won’t be held frivolous or result in sanctions or in anyone being disbarred. But that says more about Pelman and the sorry state of the law than the value of this lawsuit. See Michael Greve’s discussion of the issue in “‘Harm-Less’ Lawsuits?”

And now the lawsuits…

by Ted Frank on July 27, 2005

As we predicted on July 16, the ridiculous lawsuits over the Grand Theft Auto video game “scandal” have begun. The lead plaintiff in the putative class action is an 85-year-old grandmother, Florence Cohen, who bought the game for her 14-year-old grandson, who may have his own claims for emotional distress when his ninth-grade classmates beat him up. I suspect the eventual lead-plaintiff deposition I imagined is likely to be more entertaining than the game itself.

“Laurence D. Paskowitz, the lawyer who filed the lawsuit on behalf of Cohen, said no parent would knowingly buy an adult-only video game for their children.” Because a “M-for-Mature” 17-or-over game featuring graphic violence, profanity, and “strong sexual content” is so much more appropriate. The sex scenes that are the subject of the lawsuit are only available by taking affirmative steps to download a modification from the Internet and install it: if her 14-year-old grandson has that much freedom with a computer to be able to experience the pixeled sex (an allegation that is missing from press accounts), what else is he downloading?

The Class Action Fairness Act is already paying dividends; the case was filed in federal court, which increases the likelihood that federal judges will correctly decide that class certification is inappropriate. (AP, “Grandmother sues maker of ‘Grand Theft Auto’”, Jul. 27; hat-tip to W.F. and A.B.). Update: Jul. 28.

Bill Clinton made a name for himself as a moderate by criticizing violent rap in 1992, and Hillary is following in his footsteps with what ALOTT5MA’s “Phil Throckmorton” calls “an executive-quality display of deep moral concern” over an alleged modification possible in the popular “Grand Theft Auto: San Andreas” video game that makes the simulated sex in the game somewhat more explicit, and thus worthy of an “AO” Adults Only rating instead of a “M” Mature rating. (Under the voluntary system, AO is 18+, while M is 17+.)

Me, I’m just amused by the thought of class action attorneys trolling for a named plaintiff parent who will testify that, while she was okay for her little Johnny to buy a game involving drug dealing, gambling, carjacking, cop-shooting, prostitution, throat-slashing, baseball-bat beatings, drive-by shootings, street-racing, gang wars, profanity-laced rap music, homosexual lovers’ quarrels, blood and gore, and “Strong Sexual Content,” she is shocked, shocked to learn that the game also includes an animation at about the level of a Ken doll rubbing up against an unclothed Barbie doll with X-rated sound effects, and is thus a victim of both consumer fraud and intense emotional distress, entitled to actual and punitive damages totalling $74,999 per identically-situated class member in the state. The Grand Theft Auto series has already been the target of some pretty silly suits (Feb. 19 and links therein), and we can pretty much expect the trend to continue. (And I beg the eventual defense attorney to pass along a public version of the deposition of the stooge named plaintiff, which will have tremendous entertainment value.) One is hopeful that the Class Action Fairness Act will give Take-Two Interactive Software the backbone to resist the extortion attempt. But if not, expect to see $5 coupons for the next edition of Grand Theft Auto in the offing.

Update: Reason’s Daniel Koffler notes “[T]oday, kids might only be able to download explicit content into their video games, but given a few years and a couple of leaps in technology, they might even be able to find hardcore pornography on the Internet.”