A Southern Illinois federal judge has pulled the plug on a class action accusing GameStop of allegedly defrauding customers based on a policy of opening video game containers and keeping the original game discs separate from factory packaging until a customer buys them.
U.S. District Judge David Dugan issued an opinion March 28 granting GameStop’s request to dismiss complaints from Illinoisan Christopher Odle and Missourian Matthew Pfeil.
The lawsuits had been filed in April 2024 in St. Clair County. GameStop removed the suits to Southern Illinois federal court the next month.
They are represented by attorneys David Cates and Katie St. John, of The Cates Law Firm, of Swansea; Sean K. Cronin, of Donovan Rose Nester, of Belleville; and Chad M. Mooney, of The Gori Law Firm, of Edwardsville.
Both men bought video games between 2021 and 2023 and said GameStop charged full price for games sold as “new” despite having been opened. According to Dugan, the corporate policy is an anti-theft measure rooted in the portability of game discs. But the customers allege the result is fewer return options and reduced resale value compared to factory-sealed packages.
In addition to moving for dismissal, GameStop also sought to compel arbitration based on Pfeil’s membership in the GameStop Pro Program, a rewards club that carries mandatory arbitration and class action waiver clauses.
Dugan first explained why Missouri law applies to analysis of the contract’s validity, then said the point-of-sale PIN pad language through which Pfeil authorized his membership didn’t adequately reference any contractual or rights restrictions terms.
Further, Dugan said, a post-sale email to Pfeil regarding the program seemingly suggested “reviewing the terms is optional and is for the purpose of understanding the benefits associated with the Pro Plan. There is no indication that the linked terms restrict Pfeil’s rights, or that continued use would constitute assent to those terms.” He also said the terms didn’t provide customers a real opportunity to opt out and denied the motion to compel arbitration.
Turning to the dismissal motion, Dugan said GameStop argued the customers didn’t adequately allege deceptive business practices while the customers maintained they are alleging only unfair practices, which require a lesser pleading standard. Dugan sided with GameStop, saying Odle’s Illinois Consumer Fraud and Deceptive Business Practices Act claim alleges the retailer intentionally misled its customers. Each customer’s other claims “are premised on the same allegedly deceptive misrepresentation,” Dugan wrote.
Ultimately, the matter turns on an understanding of what is meant by promotion of a video game disc as new.
“Odle alleges he sought ‘new’ games,” Dugan wrote, “meaning unowned and unused, as opposed to ‘pre-owned’ or ‘used.’ This framing indicates that his primary expectation was a lack of prior use – a condition GameStop’s products satisfied. Yet, he contends that ‘new’ also promises an unopened state, an interpretation the court must evaluate against the reasonable consumer standard.”
Dugan said Odle undermined his own argument by alleging customers pay more for “new and/or unopened games,” explaining that pairing those adjectives as distinct from one another suggests they aren’t synonymous. As such, “new” doesn’t inherently convey “unopened,” and a belief an unopened box is worth more than an opened box with an equally unused disc is a subjective preference, not something GameStop objectively advertised.
“He notes a ‘company-wide policy’ of opening new games and storing discs behind the counter to prevent theft, yet still selling them as ‘new.’ This admits the games were unused despite being opened, rendering the ‘new’ label literally true,” Dugan wrote. “Odle does not claim GameStop concealed this practice or promised sealed packaging — only that he assumed it. The ICFA, however, does not redress personal expectations unrooted in a defendant’s actual statements.”
Dugan further said Odle’s Illinois Uniform Deceptive Trade Practices Act is deficient because plaintiffs can only seek an injunction, and doing so would require “an allegation of ongoing or imminent future harm,” which is unlikely because Odle is aware of GameStop’s policy.
He likewise rejected Pfeil’s Missouri Merchandising Practices Act claim for failure to show how reasonable customers could be deceived.
Dugan gave the men 14 days to file an amended complaint.