'Hot Coffee' settlement nixed in 'Grand Theft Auto' suit

A settlement reached over hidden sexually themed content in the game Grand Theft Auto: San Andreas has been stolen, after a federal judge Wednesday tossed out the deal reached last November between the game maker and plaintiffs' lawyers.

U.S. District Judge Shirley Wohl Kram ruled that "each settlement class member's consumer-protection claims are governed by the law of the state where he purchased," so it cannot be settled in a single federal court proceeding. "Accordingly, the court decertifies the settlement class on the grounds that common issues do not predominate over individualized issues."

Kram cited as precedent the U.S. Court of Appeals for the 2nd Circuit's decision in McLaughlin v. American Tobacco Company, which decertified a nationwide class of "light"-cigarette smokers.

As is usual in many class action suits, the agreement lawyers had reached with Take-Two Interactive Software and Rockstar Games had not gained much traction among purchasers of the game anyway--only 2,676 purchasers of the wildly popular, record-setting game have filed claims under the settlement. (To file a claim, someone needs to swear under penalty of perjury that they bought the game, were offended by it, and never would have bought it in the first place if they knew sex scenes could be unlocked.)

However, the payout of a mere $26,505 hasn't stopped the lawyers involved in bringing forth the claims from asking for more than $1.3 million in legal fees.

The plaintiffs' lawyers sued over buyers claiming to be offended by the game's "Hot Coffee" modification, which, when installed, unlocked hidden sexual mini games. The hidden content not only raised the ire of supposed users of the game, but also of politicians.

Take-Two and Rockstar Games came to a settlement in 2006 with the FTC, agreeing to "clearly and prominently disclose on product packaging and in any promotion or advertisement...content relevant to the rating." When the controversy broke, the makers of GTA: San Andreas also agreed to change the rating of the game from "M" for "Mature" to "AO" for "Adults Only" and shouldered $24.5 million in costs due to returns of the game.

Seth Lesser, lead lawyer for the plaintiffs, could not be reached for comment, nor could lawyers from the firm Debevoise & Plimpton, which represents the game makers. The judge asked for lawyers to submit their plans by September 5 regarding how the case should proceed.