At the risk of overusing metaphors, there is apparently still some clean-up required after the "Hot Coffee" spill last year. Take-Two Interactive said that it has been subpoenaed by Manhattan grand jury. Empaneled by the borough’s district attorney, the grand jury is looking into the sexually explicit content unlocked in Grand Theft Auto: San Andreas via a patch.
While the subpoena is far-reaching, seeking information about the company’s business practices back to 2001, Take-Two has not yet been informed that it or any of its employees is the target of an investigation.
Earlier this year, the company was hit with a lawsuit from the Los Angeles City Attorney’s Office alleging unfair business practices and "misleading statements" in the course of marketing GTA: San Andreas. According to the LA City Attorney’s Office, the company’s failure to disclose the existence of the Hot Coffee content constitutes deceptive trade practices because it enabled the title to dodge the dreaded "Adults Only" rating. Deceptive trade practices were also at the heart of the Federal Trade Commission’s investigation into the matter, which resulted in a settlement between it and Take-Two earlier this month.
In contrast to the California civil action, the Manhattan District Attorney’s Office appears to be exploring the possibility of criminal charges against Take-Two or some of its employees. The DA is apparently focusing on the company’s 2005 acquisitions of four independent game development houses while also looking for information pertaining to the unlockable sex scenes at the heart of Hot Coffee.
Take-Two has absolutely been pilloried for the whole Hot Coffee mess—and rightly so. In addition to the subpoena and civil lawsuit, the ESRB yanked the title’s M rating and the company was forced to recall all retail copies of the game still on shelves and replace them with copies lacking the animated sex. Take-Two has also been sued by shareholders upset that the company lost money (up to US$24.5 million and counting) as a result of the GTA shenanigans. Those shareholders are likely to be irritated once again—the stock took another hit after news of the latest subpoena became public.
Regardless of whether criminal charges are brought against Take-Two, the episode has changed the rules of the game for developers. They need to be far more careful than before about game content as the downside to having a video game character caught with his pants down is much greater than before. The ESRB has tightened its rules as well, with development studios found to have undisclosed, rating-affecting content in a game now subject to a US$1 million fine. If the result of the entire fiasco is that the game rating system is more stringent and better applied, then perhaps a little coffee spillage was worthwhile.