Gamers threaten lawsuits a lot. Most of the time they threaten lawsuits over things that aren’t really something they can sue over, usually due to misunderstanding what some legal concepts are – like false advertising or bait-and-switch. In almost every case, these allegations of lawsuits are just bluster.

But every once a while, something actually comes of it. Van Fleet et al. vs. Trion Worlds International is one of those cases.

It’s a convoluted case that is one of more confusing ones I’ve researched for this column. The case at its heart is about unfair business practices and false advertising by Trion Worlds for an MMORPG it published, ArcheAge. Now that it’s over, is the banner for gamers’ rights to use a precedent to bring seedy publishers back in line? No, not at all. The case at first glance reads like a win for consumer rights, but it’s mostly just an example of general incompetence and happenstance than any real win for gamerkind.

Before I dive in, I need to give a special shout-out to Connor over at MMO-Fallout, whose early coverage of this case (specifically the document uploads!) were key in writing this piece.

So how did Trion screw this up?

Let’s go back to the months before ArcheAge’s launch – you know, back when it was the messiah du jour of MMOs and was going to change everything. During that pre-launch period, Trion sold “founder’s packs” that gave “Patron” status to players who purchased for a certain amount of time without paying the subscription fee. It’s all fairly standard fare by today’s monetization. Subscribers (aka Patrons) were also offered a 10% discount on all their future Marketplace purchases while subscribed after the game launched.

So launch came and went and surprise: There was no discount on Marketplace purchases, and things started to get dicey. Trion’s first response was that the phrasing “available after launch” didn’t mean immediately “at” launch. They claimed it actually meant “some indeterminate point after launch.” This is a bit of a stretch, considering that the bullet point is in the middle of a group of bunch of benefits that all would be available at launch.

A few weeks after the initial response, Trion returned with a solution of sorts. Instead of providing a 10% discount on all market purchases, it instead offered a 10% bonus on credits awarded to Patrons. But the 10% bonus applied only to Credit Pack purchases, which are different than the Founder packs and Starter packs. While players got a “credit pack” as part of the Founder’s and Starter packs, those were explicitly excluded. All in all, Trion’s “equitable solution” didn’t really address the issue, which served to anger players even further.

It doesn’t take a rocket scientist to see this was never really a workable solution; a one-time 10% bonus to credits wasn’t going to equal a 10% discount on all purchases. It angered some players enough that they decided to actually do something about it instead of just raging on the forums and Reddit.

The complaint

A little under a year later, two ArcheAge players brought a lawsuit seeking class action status against ArcheAge (the link here is the First Amended Complaint, which includes an additional plaintiff and was actually filed 2016). The lawsuit makes a total of seven claims against Trion. The first five claims all relate to that 10% discount and California Business Law. While they cite different codes in the law, they focus on False Advertising, Unlawful Business Practice, and Unfair Business Practice.

The sixth and seventh claims deal with the supply crates. The class action lawsuit alleges that the supply crates (read: lockboxes) are an Illegal Lottery under California law – more or less an attempt to label supply crates as gambling. Most US states use a three-pillar approach to classify something as gambling: consideration, chance, and a reward of value. I’m going to go more in-depth on lockboxes as gambling in a future piece, but for most lootboxes, the contentious pillar is the reward being something of value. The complaint asserts that rewards from the supply crates are valuable property, thus making the supply crates an illegal lottery.

Trion’s big mistake: TOU vs EULAs

As Connor explained, the arbitration clauses we effectively agree to in order to use software are generally accepted by the courts as binding – a decidedly anti-consumer move, but it’s the reality in which we live. The relevant bit for us in this case is that Trion’s Terms of Service (TOS) and End User License Agreement (EULA) actually contradicted each other when it came to arbitration. The TOS contained the arbitration clause, while the EULA says that the venue for any claims is the San Mateo, California, district court.

Now if it had ended there, Trion might have been able to easily navigate this suit and force arbitration. But – and this is just delicious – Trion’s own TOS says that its EULA supersedes any conflicting terms, meaning that not only were the plaintiffs not bound to arbitration, they were actually compelled to take it to the San Mateo district court. (The court also noted that some parts of Trion’s Terms of Use were illegal because they conflicted with Liability laws.)

Trion, apparently never quite knowing when to stop or maybe feeling it had no other choice, appealed the denial of its motion to compel arbitration to the California 1st District Appeals court. It lost again because by its own words, it EULA superseded its TOS. In accordance with Trion’s own EULA, but against Trion’s wishes, the case went back to the San Mateo County Court.

That all happened in early 2016, shortly after the complaint was filed. Then everything went dark and we didn’t hear anything while the First Amended Class Action complaint was filed, though the only change was listing of another plaintiff.

Fast-forward to 2018, when Trion filed a demurrer, or an objection that questions the validity of the plaintiff’s claims that mostly targets the illegal lottery claims. Conspicuously absent were any objections about whether the 10% discount constituted misleading advertising. MMO Fallout speculates that Trion was trying to narrow the focus of the suit for trial. Hilariously, the judge accused Trion of misusing footnotes and font size (font size, folks) to bypass statutory page limitations and threatened to strike any future briefs that didn’t adhere to the rules. The judge denied the demurrers about the illegal lottery and then denied a motion for a summary adjudication (which was asking the judge to rule without going to trial).

This brings us to the fall of 2018, when Trion was bought and dissolved by Gamigo, prompting the plaintiffs to try to add Gamigo and another company, Golden Gate Games to the lawsuit without success. In early 2019, we learned that Trion’s insurer wanted to settle the case as the only real asset left to Trion was an insurance policy – and defense costs were eating up the policy. Last fall, the settlement was approved, and of course emails went to players about the settlement in January 2020.

So what’s the impact for gamers?

Unfortunately, not much. This case was settled because Trion had larger issues, like “not existing anymore,” so we can’t really draw much from where this would have gone had it actually gone to a full trial. I think that the misleading advertising and unfair business practices complaints could have actually gone somewhere. But it’s also true that the only reason this lawsuit was able to continue at all was Trion’s general incompetence. The nonsensical TOS and EULA disagreement created the very loophole that allowed the case to exist. It’s unlikely to happen quite like this again.

The best takeaway from all this is that the judge didn’t immediately throw out the claim about the lockboxes being an illegal lottery. That lack of action was actually a bit of a positive in mind for the overall lockbox debate. But outside of that, this whole process was less about the players getting one up on the big bad corporation and more about just how badly Trion screwed up pretty much every step of this situation.

Every other week, Andy McAdams braves the swarms of buzzwords and esoteric legalese of the genre to bring you Massively OP’s Lawful Neutral column, an in-depth analysis of the legal and business issues facing MMOs. Have a topic you want to see covered? Shoot him an email!