The Litigation Horizon
Richard J. Idell
The Idell Firm LLP
Idell & Seitel LLP, 2008
Litigation Horizon Overview
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Potential Plaintiff Theories
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Products Liability
Negligence
Breach of Warranty
California Consumer Legal Remedies Act
Defensive Strategies
Class Action Lawsuits
Idell & Seitel LLP, 2008
Products Liability:
Plaintiff’s Prima Facie Case
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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.
Idell & Seitel LLP, 2008
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)
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Idell & Seitel LLP, 2008
Breach of Implied Statutory
Warranties
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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 “asis.” Cal. Civ. C. § 1792.4
Idell & Seitel LLP, 2008
California Consumer
Legal Remedies Act
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California Civil Code Sections 1750 to 1784
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Prohibits deceptive practices in a transaction
intended to result or which results in the sale
or lease of goods to any consumer.
Idell & Seitel LLP, 2008
California Consumer
Legal Remedies Act
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Required Notice Period
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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.
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This defense does not apply to class-actions
under the CLRA, which will be discussed later.
Idell & Seitel LLP, 2008
Defenses to Claims that Video
Games Cause Epilepsy
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Seizures were unrelated to video game play.
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The manufacturer provided adequate
warnings of triggering of seizure players who
were predisposed to epileptic seizures.
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Plaintiff failed to heed the warnings.
Idell & Seitel LLP, 2008
General Defenses for Strict
Product Liability Lawsuits
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The defect was not the proximate cause of
the injury.
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The seller provided adequate warning.
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Plaintiff misused the product.
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Intervening third-party culpability.
Idell & Seitel LLP, 2008
General Defenses for
Negligence Lawsuits
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Plaintiff’s comparative negligence
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Plaintiff’s assumption of risk
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Plaintiff’s failure to mitigate damages
Idell & Seitel LLP, 2008
General Defense to
Breach of Implied Warranty
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Civil Code 1792.4 states that a “conspicuous”
disclaimer, attached to product at the time of sale,
must say:
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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.
Idell & Seitel LLP, 2008
Recent Consumer Cases
Involving Epilepsy
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Roccaforte v. Nintendo of America, 917 So.
2d 1143 (2005).
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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.
Idell & Seitel LLP, 2008
Spypro New York Litigation
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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.
Idell & Seitel LLP, 2008
Cases Regarding Violent
Content of Video Games
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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.
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Idell & Seitel LLP, 2008
James v. Meow, cont.
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The court found:
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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.
Idell & Seitel LLP, 2008
Cases Regarding Violent
Content of Video Games
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Sanders v. Acclaim Entertainment, Inc., 188
F.Supp. 2d 1264 (D.C. Colo 2002)
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Plaintiffs sued video game makers, alleging that
violent video games caused the Columbine
shootings.
Court concluded:
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Columbine shootings were not reasonably
foreseeable.
Shooters’ criminal acts were a superceding cause of
harm to plaintiffs.
Idell & Seitel LLP, 2008
Sanders, cont.
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Court distinguished between tangible and
intangible properties.
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Products liability only applies to tangible
properties.
Video game contents are intangible, so there was
no products liability cause of action.
Idell & Seitel LLP, 2008
Cases Regarding Violent
Content of Video Games
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Wilson v. Midway Games, Inc., 198 F.Supp.
167 (D.C. Conn. 2002)
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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.
Idell & Seitel LLP, 2008
Cases Regarding Violent
Content of Video Games
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Video Software Dealers Assoc. v. Maleng,
325 F.Supp. 1180 (W.D. Wa. 2004)
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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.
Idell & Seitel LLP, 2008
Class-Action Cases
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Smith v. Microsoft Corp., 04:08-CV-00061
(S.D. Tex. 1/4/08)
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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.
Idell & Seitel LLP, 2008
Class-Action Cases
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In re. Grand Theft Auto Video Game
Consumer Litigation, 1:06-MD-1739 (S.D.N.Y.
2006)
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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.
Idell & Seitel LLP, 2008
Class-Action Cases
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Nunez v. Microsoft, CV:07-2209 (S.D. Ca.
2007).
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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.
Idell & Seitel LLP, 2008
Class-Action Cases
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Ray v. Microsoft Corp., 2:06-CV-01720 (W.D.
Wash. 2006)
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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.
Idell & Seitel LLP, 2008
Prerequisites for Bringing
Class Actions in Federal Court
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Rule 23(a) requires:
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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.
Idell & Seitel LLP, 2008
Grounds for Bringing Class
Actions in Federal Court
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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)
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Idell & Seitel LLP, 2008
Prerequisites for Class Action
Under Cal. Civ. C. 382
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California Civil Code Section 382 establishes
two requirements:
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Existence of an ascertainable class
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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.
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Predominant questions of law or fact;
Class representatives’ claims are typical of class
Class representatives can adequately represent the
class.
Idell & Seitel LLP, 2008
Prerequisites for Class Action
Consumer Legal Remedies Act
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Cal. Civ. C. § 1781(b) is the only way to bring
a class-action under Consumer Legal
Remedies Act.
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Consumer must put the prospective
defendant on notice prior to filing suit.
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Total damages must be $1,000.00 or more.
Idell & Seitel LLP, 2008
Prerequisites for Class Action
Consumer Legal Remedies Act
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The court must permit class certification if:
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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