By: Rachel Pressdee, Staff Writer
As a law student, I walked out of my last final of the semester and I did not want to think about the legal world until I had to step back through the school’s doors. However, once you become a law student something in you changes, you think differently and you see things differently, and you notice that there are lawsuits everywhere.
On November 14, 2018, Bethesda Game Studios released a new game in a much-loved series, Fallout.[1] The newest addition to the post-apocalyptic series, Fallout 76, has created a lot of news, but maybe not in the way Bethesda would like.[2] I am sure I am not the only dystopian loving video game nerd who was anticipating exploring the wasteland during the semester break, but as the date of my final exam drew near, I was inundated with articles criticizing Fallout 76 for poor performance, a plethora of glitches, a lack of cohesive storyline, and misrepresented promotional items. The legal issues related to the game seem to be stacking up and currently include investigations into deceptive trade practices, bait-and-switch fraudulent activity, and the disclosure of confidential information.[3] [4]
Migliaccio & Rathod LLP (“M&R”), a Washington DC lawfirm, that focuses on class and collective action cases, is investigating Bethesda for releasing a highly-glitched game and refusing to issue refunds for the unplayable aspects of the game.[5] M&R launched a class action lawsuit for deceptive trade practices against Bethesda after several patches were released by the company, but failed to correct the bugs and glitches experienced by the consumers.[6]
Deceptive trade practices are defined as “activity that is likely to mislead the public.”[7] There are federal and state laws in place to protect the general public from businesses or individuals that are attempting to mislead or misinform the consumer.[8] The Uniform Deceptive Trade Practice Act is a federal law that has been adopted in some form in every state, and the Federal Trade Commission Act also regulates deceptive trade practices.[9]
M&R believes Fallout 76 falls under the prohibition of unfair and deceptive trade practices.[10] A representative from M&R stated:
Almost every state has a statute that broadly prohibits “unfair and deceptive trade practices.” The wording is deliberately broad to make sure that all forms of such conduct can be policed . . . Some typical forms of unfair and deceptive trade practices include the omission of a material fact in connection with a sale such as failing to disclose that a product suffers from a debilitating defect or promising something [] and not delivering on that promise.[11]
M&R is also investigating bait-and-switch fraudulent activity related to the $200 collector’s edition of the game, the Power Armor Edition.[12] Those who purchased the Power Armor Edition were expected to receive, among other things, a “Canvas West Tek Duffel Bag” advertised as a military-style canvas bag.[13] However, consumers were sent a cheaply made nylon bag.[14] To add insult to injury, consumers discovered that online influencers were provided the canvas bag that was originally advertised free of charge, but those who paid the hefty price for the collector’s edition were provided with a cheap substitute.[15] Further, when consumers began submitting tickets on Bethesda’s website to get a replacement bag, some were surprised to find they had access to open and close tickets submitted by other consumers, and were able to access personal information including names, addresses, emails and partial credit card information of other consumers.[16]
Many are questioning how the investigation and lawsuit will play out.[17] Zachary Strebeck, a lawyer who provides legal services for game developers and tech companies, indicates that the lawsuit will rely on three main elements; whether there was a misleading advertisement about the product, whether consumers relied on the misleading advertisements, and whether the consumer was damaged or injured by the misleading advertisements.[18] Streback compared the pending lawsuit to a 2013 case, Perrine v. Sega of America, Inc., a dispute over whether Sega engaged in “bait and switch” regarding the video game Aliens: Colonial Marines.[19] Shortly after Aliens: Colonial Marines was released, a class action lawsuit involving 130,000 consumers was filed alleging deficiencies in the quality of the graphics and other aspects of the game.[20] Prior to the game’s release, demos included a disclaimer stating the images were actual gameplay, when in fact the final game did not include any of that gameplay and bore little resemblance to the advertisements.[21] In August 2014, Sega settled with the class plaintiffs for $1.25 million.[22]
M&R is still collecting information from consumers via an online questionnaire on their website to determine who the primary plaintiffs in the class action lawsuit will be, as well as researching the issues.[23] The next step for M&R is to reach out to Bethesda to see if they’re interested in reaching a resolution outside the courtroom, and if not they will move forward with the action to hold Bethesda accountable.[24]
Sources:
[1] https://www.forbes.com/sites/brianmazique/2018/11/12/fallout-76-release-date-and-10-things-you-should-know-before-you-buy-the-game/#27aaa90011a0
[2] http://www.classlawdc.com/2018/11/26/bethesda-game-studios-deceptive-trade-practices-investigation/
[3] Id.
[4] https://kotaku.com/bethesda-support-leaks-fallout-76-customer-names-addre-1830892930
[5] http://www.classlawdc.com/2018/11/26/bethesda-game-studios-deceptive-trade-practices-investigation/
[6] Id.
[7] https://www.legalmatch.com/law-library/article/deceptive-trade-practices.html
[8] Id.
[9] Id.
[10] https://techraptor.net/content/dc-law-firm-launches-deceptive-trade-practices-investigation-for-fallout-76
[11] Id.
[12] http://www.classlawdc.com/2018/11/26/bethesda-game-studios-deceptive-trade-practices-investigation/
[13] https://kotaku.com/bethesda-is-sending-out-replacements-for-fallout-76s-n-1830833935
[14] Id.
[15] Id.
[16] https://kotaku.com/bethesda-support-leaks-fallout-76-customer-names-addre-1830892930
[17] https://techraptor.net/content/a-look-at-fallout-76-legal-situation
[18] Id.
[19] Perrine v. Sega of Am., Inc., No. C 13-01962 JSW, 2013 U.S. Dist. LEXIS 173311 (N.D. Cal. Oct. 3, 2013)
[20] https://strebecklaw.com/game-over-man-aliens-colonial-marines-class-action-over/
[21] Id.
[22] Id.
[23] https://techraptor.net/content/a-look-at-fallout-76-legal-situation
[24] Id.
