Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Sony unable to elude gamer’s “Killzone” misrepresentation claims, (Dec 17, 2014)

By Greg Hammond, J.D.

Sony Computer Entertainment America, LLC—the company responsible for the sales and marketing of the popular video game console Sony PlayStation in North America—could not fend off a gamer’s false advertising claims over the PlayStation 4 (PS4) game “Killzone: Shadow Fall.” The federal district court in San Francisco largely denied Sony’s motion to dismiss, finding that the consumer sufficiently alleged misrepresentation and reliance (Ladore v. Sony Computer Entertainment America, LLC, December 16, 2014, Chen, E.).

Background. Consumer Douglas Ladore filed a putative class action against Sony, alleging that the company fraudulently or misleadingly represented that its game, Killzone, would render graphics in full 1080p resolution. Ladore alleged that he relied on Internet reports describing the game’s multiplayer mode as rendering graphics in “native 1080p,” and later confirmed that the game would deliver an unrestricted 1080p graphics resolution when he reviewed the game’s packaging and purchased it. However, after playing the game, Ladore alleged that he realized the game’s multiplayer graphics were not the 1080p graphics that Sony advertised. A Sony producer allegedly confirmed that the technique used on Killzone’s multiplayer mode was “temporal reprojection,” which combines pixels and motion vectors from various lower-resolution frames to reconstruct a full 1080p image.

Ladore brought claims, in part, under the California Legal Remedies Act (CLRA), False Advertising Law, and Unfair Competition Law. Sony moved to dismiss.

Misrepresentation. In support of its motion to dismiss, Sony first argued that Ladore’s complaint fails to identify any actionable misrepresentation. The court disagreed, noting that at the heart of the complaint, Ladore alleges that Killzone’s multiplayer graphics were not originally created or rendered in 1080p, as Sony purportedly represented. Rather, Ladore argued that Sony used a “technological trick” to turn lower resolution graphics into graphics that appeared “subjectively similar” to native 1080p.

Reliance. Sony also attempted to dismiss the complaint on grounds that Ladore failed to adequately plead reliance on any of Sony’s statements that Killzone would natively render graphics in 1080p. However, the court determined that Ladore clearly asserted that: he read multiple pre-release statements Sony published on various websites containing the allegedly false resolution representations; he relied on those statements when he decided to purchase the game; and he read the product’s packaging, corroborating Sony’s earlier alleged misrepresentations.

CLRA. The court also rejected Sony’s argument that Killzone is not a good under the CLRA. “Goods,” according to the court, are defined as “tangible chattels bought or leased for use primarily for personal, family, or household purposes.” Because the Killzone game disc is a tangible product, which came in a box and was accompanied by various tangible pieces of documentation, the court concluded that it was a good under the CLRA.

The case number is C14-3530 EMC.

Attorneys: Alicia Elaine Hwang (Edelson PC) for Douglas Ladore. Luanne Sacks (Sacks, Ricketts & Case, LLP) for Sony Computer Entertainment America, LLC.

Companies: Sony Computer Entertainment America, LLC

Cases: Advertising CaliforniaNews