Aldana v. Gamestop, Inc.

Background

Alejandro Aldana and Scott Gallie brought this case individually and on behalf of others similarly situated against GameStop, Inc. The plaintiffs’ claims rely on the Video Privacy Protection Act, a federal law concerning disclosure of information about people’s video-related materials. The court had previously denied GameStop’s motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), which concerns whether a complaint adequately states a legal claim.

GameStop then sought certification under 28 U.S.C. § 1292(b) for an immediate, or interlocutory, appeal of that earlier ruling. Such an appeal before final judgment requires a controlling legal question, a substantial basis for disagreement about the legal issue, and a finding that immediate appellate review may materially advance the end of the case.

Court’s reasoning

GameStop and the plaintiffs agreed that the earlier ruling involved a controlling legal question and that reversal could materially advance the litigation. The dispute was whether there was a substantial basis for disagreement about the ruling.

The court found that GameStop had not identified conflicting authority. It distinguished the decisions GameStop cited because those cases involved prerecorded marketing videos that were only peripherally related to the businesses’ products. Here, the plaintiffs alleged that the video games GameStop sold contained “cut scenes,” which the opinion defined as video clips within a video game that move the game’s narrative forward. The court also distinguished another decision involving the transmission of a webpage address because the plaintiffs here alleged that GameStop disclosed specific game titles, which in turn disclosed the cut scenes contained in those games.

The court also rejected GameStop’s argument that the issue was sufficiently difficult and new to justify immediate appeal. Although the court had been the first to consider whether the law applied to the type of video games GameStop sells, the court said that a first-impression issue alone was not enough. It also noted that courts had generally followed a consensus that covered audiovisual materials must contain some prerecorded video content.

Finally, the court concluded that appellate review was premature. The earlier ruling depended on the nature of the alleged cut scenes, and discovery had not closed. The parties had not yet presented evidence showing whether the cut scenes were actually similar to the audiovisual material identified in the statute. The court noted that even GameStop acknowledged that cut scenes are not necessarily prerecorded.

Disposition

The court denied GameStop’s motion for a certificate of appealability. The court did not change its earlier denial of GameStop’s motion to dismiss. The case remains referred to Magistrate Judge Figueredo for general pretrial management.