Overlawyered » Grand Theft Auto http://overlawyered.com Chronicling the high cost of our legal system Mon, 27 Apr 2015 20:32:16 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.1 The retreat of Grand Theft Auto: Class Action http://overlawyered.com/2010/03/the-retreat-of-grand-theft-auto-class-action/ http://overlawyered.com/2010/03/the-retreat-of-grand-theft-auto-class-action/#comments Sat, 13 Mar 2010 19:50:11 +0000 http://overlawyered.com/?p=16493 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, […]

The retreat of Grand Theft Auto: Class Action is a post from Overlawyered - Chronicling the high cost of our legal system

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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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The retreat of Grand Theft Auto: Class Action is a post from Overlawyered - Chronicling the high cost of our legal system

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Bad journalism department: Grand Theft Auto settlement http://overlawyered.com/2009/09/bad-journalism-department-grand-theft-auto-settlement/ http://overlawyered.com/2009/09/bad-journalism-department-grand-theft-auto-settlement/#comments Fri, 04 Sep 2009 04:13:37 +0000 http://overlawyered.com/?p=13480 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 […]

Bad journalism department: Grand Theft Auto settlement is a post from Overlawyered - Chronicling the high cost of our legal system

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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.

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Bad journalism department: Grand Theft Auto settlement is a post from Overlawyered - Chronicling the high cost of our legal system

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The return of Grand Theft Auto: Class Action http://overlawyered.com/2009/08/the-return-of-grand-theft-auto-class-action/ http://overlawyered.com/2009/08/the-return-of-grand-theft-auto-class-action/#comments Tue, 04 Aug 2009 19:45:30 +0000 http://overlawyered.com/?p=13025 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. Tags: CCAF, class action settlements, class actions, Grand Theft Auto, Second Circuit

The return of Grand Theft Auto: Class Action is a post from Overlawyered - Chronicling the high cost of our legal system

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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 return of Grand Theft Auto: Class Action is a post from Overlawyered - Chronicling the high cost of our legal system

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Latest issue of Class Action Watch http://overlawyered.com/2008/11/latest-issue-of-class-action-watch/ http://overlawyered.com/2008/11/latest-issue-of-class-action-watch/#comments Thu, 20 Nov 2008 13:43:57 +0000 http://overlawyered.com/?p=7895 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 […]

Latest issue of Class Action Watch is a post from Overlawyered - Chronicling the high cost of our legal system

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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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Latest issue of Class Action Watch is a post from Overlawyered - Chronicling the high cost of our legal system

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Grand Theft Auto: Class Action – the denouement http://overlawyered.com/2008/07/grand-theft-auto-class-action-the-denouement/ http://overlawyered.com/2008/07/grand-theft-auto-class-action-the-denouement/#comments Fri, 01 Aug 2008 00:29:40 +0000 http://overlawyered.com/?p=7351 Yesterday, Judge Shirley Wohl Kram filed a 58-page decision in the Grand Theft Auto class action. How did she decide? The court decertified the class (via NY Times Bits Blog and a phone-call from Jonathan Glater) based on the Second Circuit precedent of McLaughlin v. American Tobacco Company, which was decided after the settlement in […]

Grand Theft Auto: Class Action – the denouement is a post from Overlawyered - Chronicling the high cost of our legal system

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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?

The court decertified the class (via NY Times Bits Blog and a phone-call from Jonathan Glater) based on the Second Circuit precedent of McLaughlin v. American Tobacco Company, which was decided after the settlement in November. As I suggested last month, I think McLaughlin would certainly preclude a litigation class of the GTA claims, but the court’s decision may be an aggressive use of the precedent by the court to decertify the settlement class, where the certification standards are looser because there is no need to demonstrate that a class would be superior to individual litigation. Take Two spent about a million dollars negotiating and administering a settlement because the court refused to rule on its decertification motion last year; that wasted effort demonstrates why it is important for courts to resolve certification questions early in the case. But with no certified class, there can be no class settlement, and the court does not need to directly reach the issues in my brief.

I am encouraged by footnote 26 of the opinion, which, in dicta, suggests that the Court would have adopted at least some of the arguments in my brief regarding the untenability of the settlement. I am disappointed that there isn’t a more explicit precedent for these principles, which will make it easier for other class action attorneys to attempt to bring similar settlements that will freeze out the class and inflate the value of the settlement to rationalize high attorneys’ fees. On the other hand, the court’s stricter standard for settlement class certification serves a similar deterrent purpose against meritless strike suits filed in the hopes of such a settlement. And, of course, without my objection, the court very likely would have simply rubber-stamped the settlement and the plaintiffs’ attorneys would have walked away with a million dollars for nothing.

The interesting question will be whether there will be a Rule 23(f) appeal by the plaintiffs. If so, I may need to file a Second Circuit brief after all.

Also, I learned a new word: “asseveration.” (When you asseverate, you make an ass out of–oh, never mind.)

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Grand Theft Auto: Class Action – the denouement is a post from Overlawyered - Chronicling the high cost of our legal system

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Grand Theft Auto: Class Action – the argument http://overlawyered.com/2008/06/grand-theft-auto-class-action-the-argument/ http://overlawyered.com/2008/06/grand-theft-auto-class-action-the-argument/#comments Fri, 27 Jun 2008 00:07:28 +0000 http://overlawyered.com/?p=7208 By popular demand, here is my first-hand account of arguing at yesterday’s Grand Theft Auto fairness hearing: Of course, it’s a pain in the butt for an objector to show up in court. I had laid out $700+ in expenses plus a weekend spent writing a brief to get to this stage. Then, the drive […]

Grand Theft Auto: Class Action – the argument is a post from Overlawyered - Chronicling the high cost of our legal system

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

Of course, it’s a pain in the butt for an objector to show up in court. I had laid out $700+ in expenses plus a weekend spent writing a brief to get to this stage. Then, the drive to New York cost a small fortune in tolls and gas, even in my Prius. I then chose my parking garage poorly, so that was another $40.

All this over a game I spent $49.99+tax on that isn’t even worth a buck if I tried to sell it on Ebay. And there’s no official or formal mechanism for me to recover any of that expense (see ¶ 16). So for at least one time in the history of Overlawyered, I can say that a court appearance really is not about the money. And it’s perfectly understandable that no one else wants to bother to object: there’s nothing in objecting for them. But had I not shown up, the settlement had a very good chance of being rubber stamped, and there would be no appellate review.

Judge Shirley Wohl Kram was born in 1922. She calls the court to order a bit after the 10:30 scheduled starting time. The special master, a Howrey attorney, reports on the elaborate procedures used, at a cost of over $800,000, to provide notice and determine the appropriateness of the 2700 or so claims, and announces a distribution of about $20,000 in cash to class members. The special master, a former clerk of Judge Kram’s, will receive $485/hour for his work at Take Two’s expense.

After some hubbub over whether I am sure that I want to represent myself pro se, the judge suggests to me (perhaps after the hinting of the plaintiffs’ filings) that my brief was late, but she’ll let me argue. I quietly point out that Local Rule 6.1(b)(2) permits a response to a motion within ten business days, and mine was filed within nine business days, so there can be no issue of lateness. I briefly outline my arguments, note that the plaintiffs’ reply brief makes all of the arguments for the fairness of the settlement in terms of its fairness to the subclass of allegedly offended-and-upset class members rather than the ten-million-member class that they’re asking certification of, note that the original claim was for over a billion dollars, and ask that the plaintiff’s attorney be required to state whether they think they have a meritorious case. If they have a meritorious case (as they claim once again in Wednesday’s New York Times), they have no business settling it for $20,000, and the settlement must be rejected; if, on the other hand, they want to represent to the court that a $20,000 settlement is fair because the lawsuit they brought has less than a 0.01% chance of success, then perhaps Rule 11 sanctions are appropriate, rather than attorneys’ fees.

I offer to answer questions; there are no questions. This means one of two things:

  1. The judge is sympathetic to my argument and doesn’t feel the need to test it; or
  2. The judge thinks my argument is so far beyond the pale she doesn’t want to waste any more time on this than she has to.

I’m cautiously optimistic that it’s the first, because the judge asked the settling attorneys to address three questions, which I paraphrase:

  1. What does the small number of claimants say about the merits of the case and the fairness of the settlement?
  2. What are we to make about the fact that claims were limited to those who were “upset and offended”?
  3. How should the charitable donation to ESRB relate to attorneys’ fees and the fairness of the settlement?

All of these were raised in my brief.

Plaintiffs’ attorney Seth Lesser makes his case. Of course the people who are most offended should get money that the unoffended don’t get, because they’re the most injured he says, but doesn’t that contradict the idea that this is a unified class meriting certification? I think he never quite addresses the issues I raise, but, then, that’s my confirmation bias. Judge Kram gets audibly impatient with Lesser towards the end of his defense of the charitable donation, telling him to make his point. Defense attorney Jeffrey S. Jacobson notes that if the settlement is not approved, they go back to litigating class certification. Of course, the defendants may well want that at this stage, having already laid out $800k on a special master and settlement administration: between the settlement agreement in November and today, the Second Circuit decided McLaughlin v. Philip Morris USA, which would seem to imply that a class certification would be inappropriate.

I respond and note that the $800k+ being donated to ESRB benefits the defendant as a means of promoting video games to concerned parents and forestalling demands for federal regulation, and should not be attributed to the class. I also express concern that the court has bifurcated the consideration of attorneys’ fees from the consideration of the fairness of the settlement–the fees issue and request for a contingent fee several dozen times the class recovery is integral to the fairness of the settlement. I cut myself short before Judge Kram gets impatient with me, too.

Judge Kram takes the matter under advisement, and we’ll know more when we know more. As Mr. Lesser noted to me in the post-hearing pleasantries, whoever loses will be appealing to the Second Circuit.

Elsewhere: the WSJ Law Blog covers, and the standard sock-puppets of the trial bar leave three similar puerile insults within four minutes in the comments; American Courthouse; Bonez; Techdirt (“So, once again, we have a situation where a class action lawsuit basically just moves a bunch of money to some lawyers, rather than doing anything useful.”); GamePolitics; TG Daily; GameStooge; 1Up; Switched; Reason Hit & Run (who ignored me when I shopped the story to them first, but thought it notable when the NY Times covered it); The Game Reviews; Almost Diamonds; Gaming Today; Wired (which sloppily gets basic facts wrong); CNet; Dvorak; News of the Weird Daily; Forbes Digital Download; Prettier than Napoleon. And Fleshbot, but they don’t mention my name.

Slashdot has a lengthy comment thread (that somehow gets tied up in an argument over the other hot-coffee lawsuit, complete with people parroting the trial-lawyer propaganda). One commenter admits committing perjury to collect a $35 settlement that he used to buy GTA IV.

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Grand Theft Auto: Class Action – the argument is a post from Overlawyered - Chronicling the high cost of our legal system

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Grand Theft Auto: Class Action – in NY Times http://overlawyered.com/2008/06/grand-theft-auto-class-action-in-ny-times/ http://overlawyered.com/2008/06/grand-theft-auto-class-action-in-ny-times/#comments Wed, 25 Jun 2008 09:00:34 +0000 http://overlawyered.com/?p=7205 The hearing is in a New York City courtroom this morning, and the NY Times is there, complete with a photo of me. But the legal fees have drawn an objection, from a game-player who just happens to be a lawyer as well. Seeking to scuttle the deal is Theodore H. Frank, who directs the […]

Grand Theft Auto: Class Action – in NY Times is a post from Overlawyered - Chronicling the high cost of our legal system

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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.

But the legal fees have drawn an objection, from a game-player who just happens to be a lawyer as well. Seeking to scuttle the deal is Theodore H. Frank, who directs the Legal Center for the Public Interest at the American Enterprise Institute, where he writes about class actions, liability and other topics.

“There are two possibilities,” Mr. Frank said of the settlement. “Possibility one is they have a meritorious lawsuit and they’re selling out the class for attorneys’ fees. The other possibility is that, and frankly I think this is the more likely possibility, they brought a meritless lawsuit that had no business being brought to court at all.”

(Jonathan Glater, “Hidden Sex Scenes Draw Ho-Hum, Except From Lawyers”, NY Times, Jun. 25).  The story will be no surprise to anyone who has been reading Overlawyered: there’s the imbalance between the $26,505 the class got and the $1 million the attorneys are seeking; there’s a marvelous extended quote from the Stanhouse deposition that shows the absurdity of the plaintiffs’ claims.  And if you’re interested in why Mr. Lesser’s arguments don’t rationalize his settlement (or preclude me from objecting), see my brief.  Other coverage: Kotaku (and don’t miss some great comments); CrunchGear; Gaming Today; lots of others.

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Grand Theft Auto: Class Action – in NY Times is a post from Overlawyered - Chronicling the high cost of our legal system

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Grand Theft Auto: Class Action – The Frank Brief http://overlawyered.com/2008/06/grand-theft-auto-class-action-the-frank-brief/ http://overlawyered.com/2008/06/grand-theft-auto-class-action-the-frank-brief/#comments Fri, 06 Jun 2008 12:30:41 +0000 http://overlawyered.com/?p=7106 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 […]

Grand Theft Auto: Class Action – The Frank Brief is a post from Overlawyered - Chronicling the high cost of our legal system

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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.

Argument is June 25, 10:30 am, in New York City, and I intend to be in court to argue as an objector. If, like me, you’re willing to take a day off of work to be in a Manhattan courtroom to see justice done, feel free to watch and say hi.

For more on the Grand Theft Auto class action, see our series of posts on the issue over the last three years.

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Grand Theft Auto: Class Action – The Frank Brief is a post from Overlawyered - Chronicling the high cost of our legal system

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Blogosphere on Grand Theft Auto class action http://overlawyered.com/2008/05/blogosphere-on-grand-theft-auto-class-action/ http://overlawyered.com/2008/05/blogosphere-on-grand-theft-auto-class-action/#comments Wed, 28 May 2008 04:14:13 +0000 http://overlawyered.com/?p=7059 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. Tags: class action settlements, class actions, Grand Theft Auto

Blogosphere on Grand Theft Auto class action is a post from Overlawyered - Chronicling the high cost of our legal system

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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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Blogosphere on Grand Theft Auto class action is a post from Overlawyered - Chronicling the high cost of our legal system

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Grand Theft Auto: Class Action Settlement – $26,505 for the unrepresented class, $1 million fee request http://overlawyered.com/2008/05/grand-theft-auto-class-action-settlement-26505-for-the-unrepresented-class-1-million-fee-request/ http://overlawyered.com/2008/05/grand-theft-auto-class-action-settlement-26505-for-the-unrepresented-class-1-million-fee-request/#comments Mon, 26 May 2008 12:44:52 +0000 http://overlawyered.com/?p=7046 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 […]

Grand Theft Auto: Class Action Settlement – $26,505 for the unrepresented class, $1 million fee request is a post from Overlawyered - Chronicling the high cost of our legal system

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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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Grand Theft Auto: Class Action Settlement – $26,505 for the unrepresented class, $1 million fee request is a post from Overlawyered - Chronicling the high cost of our legal system

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