There might just be a class action lawsuit over Fallout 76 refunds

    
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If you’re having fun in Fallout 76, awesome – our own Fallout fanboy certainly found some positives in the game – but other folks are apparently taking their complaints to the next level. According to a post on Reddit, a law firm is researching the efficacy of a class action suit against Bethesda for “deceptive trade practices.”

“Migliaccio & Rathod LLP is currently investigating Bethesda Game Studios for releasing a heavily-glitched game, Fallout 76, and refusing to issue refunds for PC purchasers of the game who found it to be unplayable because of its technical problems,” the firm writes. “While minor bugs and glitches are expected with the release of most new games, Fallout 76 launched with a 56GB patch that has proven to be but a starting point for the game’s problems. Gamers who have tried to receive a refund because of the game’s myriad glitches have been unable to do so since they downloaded the game, leaving them to deal with an unplayable experience until patches bring it back to a playable state.”

The firm hasn’t actually filed anything yet; it says it is hunting for players who have attempted to get a refund for the game, presumably to join the suit.

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Matt Comstock

The class action came up in a group conversation while I was playing FO76 this weekend. My take on whether the class action had merit, at least based on state law for my home state, revolved around whether Bethesda marketed this game as being at a certain standard, i.e. glitch free, but then sold a product with “glitches” and other technical issues. I then looked around for a copy of the EULA for FO76, but have thus far been unable to get my hands on a copy. I went to https://bethesda.net/en/eulas, and, surprisingly, the FO76 EULA is not listed. If someone can link me to the EULA, I would be most appreciative — as I am interested in whether there was some form of disclaimer indicating the game was not guaranteed to be error free.

On a side note, I perused the Fallout 4VR EULA, and as I suspected it had an arbitration clause and class action waiver, unless you opted out within 30 days of purchasing the game. I suspect the FO76 would likely have the same or similar language as this is becoming standard operating procedure for most businesses. As such, anyone interested in the class action should figure out how to opt out of the arbitration clause and class action waiver.

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Mr Poolaty

So now they’ve got their PR department S.O.P.R. Special Operations Public Resource teams out now running around forums blasting positive reviews and trying to debunk people’s opinions??? W.T.F.

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GiantsBane

Its funny watching the super entitled tyraids of today’s super entitled gamers. Sometimes I really do get disgusted with my people.

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Randy Savage

So their game is getting tons of bad press, so what do they do? They make it worse for themselves by not giving people their money back. Way to instill consumer confidence in your product!

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Mr Poolaty

Bethesda had the same shit show when ESO released. Their needs to be something done to these “AAA” video game companies. This shit would not fly in other sectors for this long…

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GiantsBane

Except you know, Bethesda didn’t create eso, Zenimax did, they just acted as publisher. So you know, minor detail.

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Mr Poolaty

Except zenimax is the parent company and they all answer to the same people…

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GiantsBane

Point being that Bethesda didn’t have any control over eso, they basically just acted as consultants regarding lore. Can’t really blame the people who didn’t have a hand in making a game for how badly it turned out because zos couldn’t stick to their original vision and tried to do a 180 on the games production design a year before launch.

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Rottenrotny

Sounds like greedy lawyers trying to take advantage of the situation and make a cash grab.

Basically ambulance chasers,

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Paragon Lost

56g patch? LOL wow. Full of buggy goodness no doubt.

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Fisty

Pretty sure it was just the game download again. Whole folder for the game is only 50GB.

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Sorenthaz

It only applied to console users, too. For PC it was more like 15GB… still too large though. Reminds me of Sea of Thieves in its first month or so where they kept having you pretty much redownload the whole game with each update on PC and the Xbone.

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Rees Racer

I’ve read every review. I’ve watched a lot of Twitch streams. I certainly take into account my fellow readers here who have had “fun” with the game.

I’ve played every iteration of Fallout (since 1997), and really wanted to like ’76’.
I do not want to call anyone an apologist. It seems to me, on an objective level, there are about an equal number who are enjoying…or either hating on this game.

Bottom line:
If you wanted a co-op/PvP-lite Fallout 3/4/Skyrim, then this is for you, despite the bugs.

If you wanted something more more revolutionary (or even the smallest evolution) of the beloved franchise…you are buggered.

As with all legal matters regarding the industry and refunds, I’ve no idea. What I do know is Bethesda did not have a proper read on the pulse of what (most of) the fans of the series expected, or wanted…and that’s on them.

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Mewmew

It isn’t about what the game is when it works, it’s about the game stopping bugs and glitches. The game is loaded with them and never should have been released yet.

There are main quest line stopping bugs there that have been reported since the beta tests. They’re still there as of right now. If you go along at a fairly normal speed you run into the first one in the main story around level 15. I saw a poor level 56 trying to overcome the bug and still get it done last night (which he wasn’t able to).

There are issues that make you lose your entire death pile because you’re killed by a bug and there is no way to get back to your bag at all. I got hit by that one. Three days worth of gathering rare resources to make a full suit of power armor (with a good deal of extra on me) and it was all lost because of a bug. I had a feeling of rage quitting when it happened but will probably still play.

Ridiculous login bugs that put you stuck under your camp. Inventory weight bugs after death. Glitches here and there and everywhere.

Some of the stuff is forgivable, other things such as the main quest line stopping bug that’s been reported since before release and we’re here a month after that and two weeks into release with it still happening – not so forgivable. I’m focusing on a few bugs but there are so very many everywhere you look and they’re so incredibly slow to do anything about it.

Maybe we should be happy someone else handled the creation and release of the Elder Scrolls MMORPG. This stuff isn’t very acceptable.

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Sorenthaz

ESO uses its own engine built from scratch apparently (and they prototyped early versions of the game with Hero Engine while building it).

ESO also had 7 years of development time. Bethesda Austin had only 3 years, and they were required to use the Creation Engine which was built off of the Gamebryo engine because Bethesda’s main studio likely wanted them to turn the engine into something that allows online multiplayer + microtransactions.

This is of course the same engine that’s been used for Skyrim and Fallout 4 and has been fraught with issues to where it sounds like initially the Austin studio didn’t want to even use that engine, but were pretty much forced to.

So at the end of the day Bethesda’s main office pretty much just pawned off the engine to be made multiplayer etc. by the Austin studio and didn’t bother fixing up many of the issues beforehand, expecting the Austin studio to deal with all of that. Then Bethesda can benefit from the Austin studio’s efforts by the time they roll out Elder Scrolls 6 and whatever other games they use with the Creation Engine.

So it sounds like, to pull a quote from the game that’s idolized these days despite its launch issues, “The game was rigged from the start.”

Andy McAdams
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Andy McAdams

So did some light research on any precedent for something like this legally. Not saying it doesn’t exist, but I didn’t find any direct precedence around “deceptive trade practices” as a result of a buggy release.

So a class-action lawsuit would have to show, generally (because the laws very by state) that Bethesda knowingly engaged in

“activity by an individual or business that is meant to mislead or lure the public into purchasing a product or service”
-https://statelaws.findlaw.com/consumer-laws/details-on-state-deceptive-trade-practices.html

Intent there is going to be hard to prove, but deceptive trade practices require intent — you have to be intentionally misrepresenting the product. A buggy release does not misrepresent the produc, rather the quality of the product at release. But no worries, Bethesda has you covered there too –

LICENSOR does not warrant the error-free or uninterrupted operation of the Software.
https://bethesda.net/en/eulas/fallout4vr

The line is from the Fallout 4 EULA, but I’m assuming the verbiage between the two is verbatim, or close enough to not really matter. So the EULA also protects Bethesda here, further putting the ‘deceptive practices through buggy release’ argument out there a bit.

I don’t think anyone being a reasonable human being would be able to make the argument that Bethesda intentionally deceived people on the quality of the game prior to release to boost sales. Bethesda can point the plethora of snarky remarks about the state of Bethesda quality from before the launch. Similarly, even though there are bugs, Bethesda doesn’t guarantee a bug free or interrupted service. So that’s a dead end too.

Now denying refunds because you downloaded that game? That’s a bitch move.

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cursedseishi

The deceptive practices is in relation towards Bethesda refusing to issue refunds. The ‘buggy’ comment serves moreso as an explanation for why the refunds would be sought in the first place. And depending on where the lawsuits are coming up from?

US is sketchy. But Eurupe and Australia are hard on Consumer Protection, hence why Valve had been so (idiotically) adamant against the lawsuit regarding refunds there, and why the Australian courts continued to overturn every appeal Valve put in. The group pursuing this is Washington based, so I’m willing to bet any complains they carry forward will be strictly based in the US, with those outside of the NA region being encouraged/directed to lawyers in their areas.

But there have been reports from multiple people of refunds being refused. The main one I’d seen (and the one I believe brought this to attention) was a customer being completely unable to play the game with others among other issues, being told they’d push his refund through and get it taken care of… then getting an email later stating they’re refusing it because he had, I quote, “downloaded” the game.

Andy McAdams
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Andy McAdams

Shitty, but seems to be in line with their EULA / ToS for not being required to provide a full refund if you have basically done anything with the product. Near as I can tell, they aren’t under a legal obligation to provide refunds as they don’t guarantee them in the ToS or the EULA. Refunds are given out at their ‘discretion.’

Is it unethical? Probably. Illegal and ‘litigate-able’ – probably not.

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Kevin Smith

The deception part would come after they changed their refund policy after the game had, had many people wanting refunds. If they hadn’t changed the policy they would have most likely not had anything to worry about. When they started out given refunds left and right then all the sudden stopped because it was killing the bottom line, you can’t change terms like refund policy like that just because it is hurting your profits. I really feel bad somewhat for the company because if a lawsuit like this goes forward and a judge rules in favor to the plaintiffs I doubt the company will be able to go forward and it would set a very dangerous precedent for software in the US. I don’t agree with letting anyone who played more than a few hours have refunds as a general rule myself. You know buy a few hours if something is good or not, or if you have issues running it. Think that should be were the judge looks if this goes forward. They could rule something like anyone under say 10 hours play time gets a refund which would most likely knock out a good portion of the plaintiffs I am sure but still hold the company responsible for releasing the game in the state it was. We will have to wait and see what happens, but the company dug it’s own grave by issuing refunds at the beginning then stopping.

Andy McAdams
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Andy McAdams

I’m willing to grant that the change in the refund policy is unethical, but is it illegal? I’m not sure. It would definitely have to be under something else – deceptive business practices don’t apply because they would require that Beth do something with the explicit purpose of deceiving consumers into a purchase they otherwise would not have made. The plaintiffs would have to show that a 1) intent to deceive prior to purchase and 2) that the difference in advertising would have changed the buying habits of a reasonable person, both of which are going to be incredibly hard to show.

What would be interesting to know (and I don’t know the answer) is if Bethesda has a legal obligation to provide refunds. My gut is to say that they do not, hence why refunds as a ‘policy’ as a opposed to part of the EULA (I just checked – they *can* offer a refund, but doesn’t look like they have a legal obligation too, which makes sense.

ToS from ZeniMax explicitly denies entitlement to refunds.

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Kevin Smith

I agree with you, but I got a feeling that the reasons for stopping refunds would come to light. You can’t give one person a refund for reason A then deny the next person with the same reason. You start to get into grey areas. They would have been better off if they hadn’t gave a single refund because then it would have been easy to defend. Once you open that door though you put yourself in a murky place. There has been numerous refunds processed before they put out the release saying no more refunds, which makes them look like they were trying to hide something.

On a legal standpoint ToS and EULA have hardly ever held up in court, they have been beaten time and time again throughout the years when the people actually have the funds to fight them. I don’t think that is right because they are per say contracts, but it has been the case. I wouldn’t put much into them holding up if it goes to court.

Andy McAdams
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Andy McAdams

So ToS and EULA actually have a pretty good track-record in court, depending on the circuit (9th being the most consumer friendly, unsurprisingly). Things get a little bit dicey with the ‘shrink-wrapped’ EULA, which is a EULA you can’t see until after you’ve made the purchase and are already bound by the terms of. Some courts have found them enforceable, some not.

https://en.wikipedia.org/wiki/End-user_license_agreement

So from here – if you install / play the game, you are pretty much screwed because we all know you can’t get into the game without agreeing to the ToS/ EULA.

There *is* an argument to be made that downloading the game does not bind you to the EULA / ToS — unless you are required to agree to the EULA / ToS prior to downloading. I don’t know the exact workflow here. But assuming the EULA is presented at install, not download, there is a window of ambiguity there as to whether the ToS is enforceable before accepting the ToS at install. So if a user could show they downloaded but didn’t install the game, they might be subject to the EULA and able to legally demand a refund.

It absolutely looks shady that Beth was handing out refunds, then just suddenly stopped. But it was their discretion to do so. A judge could potentially find fault somewhere, but I don’t know what precedent they would use to enforce refunds.

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Mr Poolaty

Dude are trying to say they dont know what the fuck they’re releasing??? A few bugs ok but if these problems were there in beta and before they knew! And if they knew then and released then they should be liable…

Andy McAdams
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Andy McAdams

Liable for what though? They don’t make a guarantee of an ‘error-free’ experience, per their EULA. There’s nothing here for them to be liable for. It’s an incredibly unethical and immoral thing to do – but in terms of legal liability – I just don’t think there is any.

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Mr Poolaty

Liable for selling something that’s broke and not fully workable. It would be like selling a new car that all the gears don’t work. Well it’s brand new it should work. Now granted it’s a video game so their might be some errors that’s a given but to release a game that’s got this many fucked up problems is well fucked up. This a is a gd billion dollar industry and there needs to be more accountability. I’m all for small government but if industries can’t regulate themselves then agencies need to step in.

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Tee Parsley

Shocked thought bubble from Bethesda designer: ‘Wait, aren’t the modders supposed to be fixing all this??’

xpsync
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xpsync

That was good!

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Armsbend

When the next TES is released – when Bethesda/Valve finally gets to implement their pay for mods scheme – bethesda will then shift the burden of fixing their games to the modding community/customer.

I hope they go belly up before that happens.