By Dan Hagen

Hello Games’ No Man’s Sky is arguably this decade’s highest profile game that spectacularly failed to meet expectations set by its developer. Promises made by Hello Games through marketing and promotion, leading right up to the game’s launch, pushed the legal envelope and should serve as a cautionary tale for video game developers and marketing teams. Just how far can a developer go before their hype becomes illegal misrepresentation?

Video game consumers have dealt with disappointment many times before. In part due to similar illegitimate hype manufactured by developers, the 90’s saw John Romero’s Daikatana fail to impress, despite a somewhat crude and aggressive marketing campaign. And in the 2000’s, it was the legendary over-promising  of developer Peter Molyneux on his game Fable. Both games debuted to lackluster reviews and overwhelming letdown among fans.

Judge Learned Hand articulated long ago that the reasonable consumer should expect some amount of “puffing” from manufacturers and dealers. “There are some kinds of talk which no sensible man takes seriously, and if he does he suffers for his credulity.” According to Judge Hand, the reasonable consumer should expect a developer to portray their product in the best possible light, and to possibly even misrepresent their honest views about its quality. In the context of video games, developer statements and marketing regarding scale, quality, and intended features would probably constitute the kind of “puffing” that Judge Hand was talking about. A core question to determine whether a statement qualifies as a legal misrepresentation is whether the consumer “reasonably” relied on the statement or portrayal to their detriment.

No Man’s Sky excited the imagination of gamers from the moment it was first announced. The developers promised a huge procedurally generated world so vast that no person could possibly explore it in their lifetime. The lead developer, Sean Murray, went even further in several presentations and interviews, making a staggering number of specific claims about what the game could do. The list includes everything from exaggerations about the scope and depth of game mechanics, to claims about core functionality that were, at best, misleading.

Whether a reasonable gamer might rely on statements about whether procedurally generated planets orbit around stars, or whether they would have the ability to land on asteroids, or the complexity of the crafting system are not easy questions to answer. The reasonable gamer surely recognizes that not every feature discussed in development will make it into the final game. But the repeated implications by Murray that No Man’s Sky could be played online with friends could be legally significant. Murray claimed in several interviews, including on The Late Show with Stephen Colbert that, although a rare occurrence, gamers could run into one another in No Man’s Sky’s vast universe. This turned out not to be true. The Colbert clip has over 1.7 million views on YouTube.

Whether a game is multiplayer is precisely the kind of claim that a gamer might rely on when deciding whether to buy it. Although never advertised as a gameplay focus, the ability to play with others, even as a rare occurrence, directly relates to the replay value of the game. The knowledge that one is not alone in the game’s procedurally generated universe could be of great utility to a gamer regardless of whether they ever actually run into anyone else.

A recent case out of California may give some indication as to the viability of a class action for misrepresentation in a situation like this. In McMahon v. Take-Two Interactive Software, Inc, the Ninth Circuit remanded the dismissal of a misrepresentation case against Take-Two Interactive for alleged statements regarding online functionality for the game Grand Theft Auto V upon release. The lower court had dismissed the case for failure to state a claim, but the Ninth Circuit  found that, viewed in the light most favorable to the plaintiffs, wording on the product’s packaging regarding online functionality might be reasonably relied upon by the plaintiffs to justify a claim.

There are differences between McMahon and the situation with Hello Games. First, the alleged misrepresentation in McMahon is on the game’s packaging rather than in interviews and marketing. Furthermore, despite the many statements made by Murray, most of the product packaging for No Man’s Sky clearly indicated that the game was one-player only with some exceptions, such as the European version of the game. McMahon also involved only the delay of an intended multiplayer feature, whereas Hello Games knew such a feature would not exist. Murray’s statements are arguably less vague than that which the Court concluded the plaintiff might conceivably rely on in McMahon, and California law does not meaningfully distinguish between claims on product packaging and claims made in promotion and advertising, nor does the federal Lanham Act, which prohibits false advertising. The sheer number of alleged misrepresentations by Hello Games would likely make for a stronger case than that against Take-Two.

The outcome of the McMahon case will undoubtedly give some indications as to the viablility of future misrepresentation claims against video game developers. Regardless of whether a lawsuit materializes in this case, developers should remember that gamers pay attention to what they say when promoting their games, and may not be quick to forgive and forget if they feel they’ve been deceived.

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