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Grand Theft Auto

The case that started me on the path to founding the Center for Class Action Fairness is now over: plaintiffs voluntarily dismissed their appeal last week after voluntarily dismissing the court case February 22, giving up any shot at the $1 million in attorneys’ fees they had negotiated for themselves.

And if you’re on Facebook, do become a fan of the Center for Class Action Fairness so you can keep up with us and others can learn about it.

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As its press release says, Take Two Software settled a securities class action, yet multiple sources–including Dave Itzkoff’s story in the New York Times and Bloomberg–incorrectly report that it settled the consumer class action, complete with incorrect docket number. The consumer class action settlement was made in 2007 and, as Overlawyered readers might remember, rejected by the court, with the court’s decision to decertify the class still on appeal.

It’s unclear to me why either of those got it wrong, given that I contacted both Glovin and Itzkoff to let them know their error; Bloomberg issued two updates after my email, and Itzkoff had a chance to rewrite his incorrect blog post before it appeared in today’s Times, but neither has the story straight.

With a million dollars of attorneys’ fees at stake, the trial lawyers in the infamous Grand Theft Auto case appealed the lower court decertification ruling to the Second Circuit.

In response, I filed this brief today.

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The latest issue of the Federalist Society’s Class Action Watch has many articles of interest to Overlawyered readers:

  • William E. Thomson & Kahn A. Scolnick on the Exxon Shipping case;
  • Jimmy Cline on Arkansas’s disregard for class action certification standards;
  • Jim Copland on the “Colossus” class action;
  • Laurel Harbour on the New Jersey Supreme Court decision on medical monitoring class actions;
  • Lyle Roberts on lead-counsel selection in securities class actions;
  • Mark A. Behrens & Frank Cruz-Alvarez on the lead paint public nuisance decision by the Rhode Island Supreme Court; and
  • Andrew Grossman, extensively citing to Overlawyered and my brief in discussing the Grand Theft Auto class action settlement rejection.

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Yesterday, Judge Shirley Wohl Kram filed a 58-page decision in the Grand Theft Auto class action. How did she decide?

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By popular demand, here is my first-hand account of arguing at yesterday’s Grand Theft Auto fairness hearing:

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The hearing is in a New York City courtroom this morning, and the NY Times is there, complete with a photo of me.

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Full proof that I don’t think all pro se representation is a bad thing: Following up our previous discussion of the GTA class action settlement and my objection: This morning, Friday, June 6, I filed this brief (which unlike the previous brief, I wrote myself), in opposition to the plaintiffs’ motions for court approval of the settlement and attorneys’ fees, in the Southern District of New York and served it upon counsel. With luck, I didn’t file the wrong brief.

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This weekend’s post on my objection to the Grand Theft Auto “hot coffee mod” class action settlement drew commentary and link-love from GamePolitics, Escapist, and Above the Law.  Sadly, no one has updated the Wikipedia page.

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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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I never thought I’d be involved in a hot-coffee lawsuit, but Gamepolitics covers my intervention and objection to the Grand Theft Auto: San Andreas class action settlement, which I predicted before the suit was even filed.

(I corrected a mistake in the earlier post; I said I purchased GTA:SA for the Xbox 360 when, of course, I purchased it for the Xbox. Fortunately, my affidavit to the court was correctly phrased.)

Grand Theft Auto roundup

by Ted Frank on April 28, 2008

Grand Theft Auto IV debuts at midnight tonight to spectacular reviews, and the litigation is sure to follow…

  • Overlawyered favorite Jack Thompson (Mar. 21; Feb. 22; Sep. 27, etc., etc.), whose antics could fill an entire sub-blog, has sent an obnoxious letter to the mother of Rockstar’s boss, Strauss Zelnick, accusing it of being pornography and training for murder. A new book, Grand Theft Childhood, as documented by WaPo’s Mike Musgrave, suggests that the fears of corrupted childhood are overblown, though Lord knows I wouldn’t let any teenage kids I was responsible for play this game.
  • As someone who purchased Grand Theft Auto:San Andreas the first day it was out for the Xbox 360 original Xbox, I am a member of a plaintiff class in a class action settlement over the Hot Coffee mod where players can access the Internet and voluntarily modify the game to make it slightly more offensive to the easily offended. (To imagine that one can find p0rnography on the Internet!) In the settlement, I get, well, nothing, and the attorneys will ask for about a million dollars; worse, individual “representative” class members who suffered no injury will get $5000 that could have been used to buy more music rights for Grand Theft Auto IV. We’re frequently asked what we can do if we’re unhappy with a class action settlement where we’re a member, but this settlement was sufficiently appalling that I actually retained an attorney and he served an objection on my behalf on Friday. Further updates to come.

Update: I incorrectly said I bought San Andreas for the Xbox 360. Of course, San Andreas was never available for the 360. I bought the June 2005 release for the original Xbox.

Update: More.

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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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In 2005 the makers of Grand Theft Auto, Take-Two Interactive and its subsidiary RockStar Games, acknowledged that the wildly popular game included a hidden “mod” which when activated revealed a scene of simulated sex. As readers may recall from our 2005 coverage (here, here, and here), class action lawyers immediately hopped on the story, filing suits on behalf of purchasers who were purportedly outraged at the inclusion of one more lurid fillip in a game already known for its lurid content, and who wanted refunds and other legally ordered relief. Now Robert Ambrogi at Legal Blog Watch (Feb. 1) has details on a settlement that will shower buyers with $5 coupons and other goodies (it helps if they’ve saved the store receipt) and enable them to “get a replacement disk, sans sex scenes” — just what so many players want! — while bringing the lawyers a fee haul of $1 million.

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Anti-videogame Miami attorney and longtime Overlawyered favorite Jack Thompson claims that players in the forthcoming Grand Theft Auto IV are given instructions to kill a certain lawyer in his office and that the lawyer utters the line “Guns don’t kill people. Video games do,” which means it must be a parody of Thompson himself. He’s fired off a demand that the release be halted. (GamePolitics.com, Sept. 18; Geoffrey Rapp, PrawfsBlawg, Sept. 20). For Thompson’s legal threats last year against the publisher of Mortal Kombat because users can employ the game’s build-a-fighter mode to create characters that might resemble him, see Oct. 30, 2006. Plus: Thompson responds in comments.

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April 11 roundup

by Walter Olson on April 11, 2007

  • Chief exec of 1-800-ATTORNEY ended up needing one himself, pleading guilty to securities fraud charge [NYLJ, Lattman]

  • Cost of providing liability insurance for Pennsylvania prison doctor greatly exceeds his pay [Shamokin, Pa. News-Item, Dr. Robert Hynick, Northumberland County Prison]

  • “Scottish sociopaths sipping their single malt Glenlivet” — yep, Jack Thompson is suing Grand Theft Auto developers again [GameSpot]

  • Anna Nicole Smith fee-ing frenzy: $4,265 for Bahamas cellphone roaming part of “fair and reasonable” lawyer’s bill [TMZ]

  • Working in a prosecutors’ office? More about nailing ‘em than making sure justice was done [Dean Barnett via MedPundit]

  • Don’t forget imprisoned Egyptian blogger Abdelkareem Nabil Soliman [Palmer @ NRO, Doherty @ Reason]

  • “Pretexting” to fish out adversaries’ secrets: yes, lawyers do it too, now that you mention it [Elefant]

  • Which is more dangerous to kids, a house with a swimming pool or a house with a gun? Think carefully before answering [Stossel]

  • For shame: Supreme Court of Canada gives go-ahead for British Columbia’s retroactive tobacco recoupment suit [Ottawa Citizen, CBC, Bader; earlier]

  • Anti-biotech activists score, farmers squirm as judge halts sale of Roundup Ready alfalfa [Farmer-Stockman, Feedstuffs, Truth about Trade & Technology](more: Coyote)

  • Soap opera actor sues after ABC writes his character out of the script [five years ago on Overlawyered]

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Letter from a new father

by Walter Olson on November 14, 2006

Reader Greg Dwyer of Oregon sends the following:

Yours is the website I have been continuously reading the longest and the one I most identify with. So I figured I’d tell you something. I recently celebrated the birth of my first son, Michael Gabriel. And he will not go through life padded in Nerf.

He is going to play dodge ball and tag.

I will let him eat trans fats and foie gras.

He can play Grand Theft Auto when he is old enough.

He will know that medicine is a risky business that doesn’t always provide perfect cures.

He is going to be able to shoot a gun well by the time he is 21 and I will take him to get his gun license myself.

Most of all, I will teach him that life is what you make of it and if he fails at something, he will have no one to blame but himself.

Loving father and non-victicrat,

Greg Dwyer

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Yes, it’s regular Overlawyered mentionee Jack Thompson (Aug. 17, Jul. 24, Jun. 25, etc.) at it again — how did you guess? This time he wants $600 million from Take-Two Interactive, Sony and other defendants over the rampage by 14-year-old Cody Posey on newsman Sam Donaldson’s New Mexico ranch, which left three members of the youth’s family dead in July 2004. It seems Posey had “obsessively” played the game Grand Theft Auto: Vice City. (AP/Washington Post, Sept. 25)(via KipEsquire). More: Lattman, Sept. 27.