EAST ST. LOUIS - Plaintiffs who claim Game Stop stores shouldn’t sell games they remove from packages seek to salvage a class action complaint by adopting allegations “upon information and belief.”
Counsel for Christopher Odle of St. Clair County and Matthew Pfeil of Missouri, David Cates of Swansea, added the allegations by amending the complaint two weeks after U.S. District Judge David Dugan dismissed it without prejudice.
Cates claimed upon information and belief that Game Stop employees and managers could check out games or play them in store.
He claimed that their policy included games which Game Stop would take from original packaging.
He claimed that even if Game Stop didn’t have an official policy it was aware of the practice.
He claimed that no marking was played on games they used that would distinguish them from a game that had not been used.
He further claimed that Game Stop regularly and knowingly sells used games as new when they are in fact not new.
According to Cornell law school’s definition of information and belief, “What the individual is really stating is, I am only stating what I have been told and I believe it.
“The point of stating this phrase is to protect the individual making the statement from claims of perjury or outright falsehood.”
Cates filed the complaint in St. Clair County circuit court last April in association with Chad Mooney of the Gori firm in Edwardsville and Sean Cronin of Donovan Rose Nester in Belleville.
They sought damages under Illinois consumer law.
Game Stop counsel Kyle Seelbach of Husch Blackwell in St. Louis County removed the complaint to district court in May on the basis of diverse jurisdiction as a Texas business.
In July Dugan allowed Cates to amend the complaint by adding Pfeil to seek damages under Missouri merchandising law.
Game Stop moved to dismiss the complaint in August and Dugan granted it on March 28.
“Odle alleges he sought ‘new’ games, meaning unowned and unused, as opposed to ‘pre-owned’ or ‘used," he wrote.
“This framing indicates that his primary expectation was a lack of prior use, a condition Game Stop’s products satisfied.
“Yet he contends that ‘new’ also promises an unopened state, an interpretation the court must evaluate against the reasonable customer standard.
“Furthermore, his assertion that unopened games hold greater value reflects a subjective preference, not an objective representation by Game Stop.
“A reasonable consumer would not automatically infer ‘sealed’ from ‘new’ absent explicit cues like ‘factory sealed,’ especially when the product’s unused status aligns with the representation.
“The Seventh Circuit has rejected such inferential leaps when the statement is true and no material omission is evident.”
Dugan found that Odle noted a company policy to open games and store discs behind the counter.
“This admits the games were unused despite being opened, rendering the ‘new’ label literally true," he wrote.
“Odle does not claim Game Stop concealed this practice or promised sealed packaging, only that he assumed it.”
He found state consumer law “does not redress personal expectations unrooted in a defendant’s actual statement.”
“No likelihood of deception arises from a true statement about prior use when no additional misrepresentation about packaging is made," he wrote.
He disposed of Pfeil’s claim for the same reasons.
He gave Odle and Pfeil 14 days to amend the complaint and Cates met the deadline by filing the prior complaint plus allegations"on information and belief."
Seelbach moved to dismiss the complaint on May 16, claiming Odle and Pfeil offered no specific facts to support their suspicions.
He claimed they didn’t allege employees checked out games they bought or in any way played or used them before they purchased them.
He claimed they received exactly what they wanted, new video games.
He separately moved to stay the action pending a decision on the motion to dismiss.
“Game Stop has expended time and resources responding to discovery requests, producing thousands of documents and conducting depositions for claims that the court found to be baseless," he wrote.
He claimed plaintiffs had the benefit of all that discovery in drafting the second amended complaint yet failed to adequately plead a viable claim.
Dugan has set bench trial in April 2027.