Peeved with Your Pre-Order? Legal Solutions to Videogame False Advertising

By: Moses Merakov

It’s no secret that videogame publishers and their developers often make broad, sweeping claims about their game in an effort to sell their product. Regardless of whether that takes the form of tangibly misrepresenting the graphical fidelity of the game or omitting that the game will use predatory microtransactions, many gamers have become disenchanted with the industry and large triple A game publishers. A consumer that pre-orders a title may get a wildly different product upon release from what was initially promised. Is there any legal recourse for these consumers?

Potentially yes. A consumer can sue for false advertising. Federally, a consumer can make a claim under section five of the Federal Trade Commission Act (FTC Act), which states that “unfair or deceptive acts or practices in or affecting commerce” are declared illegal. On a state level, many states have statutes parallel to the FTC Act or at least allow consumers to pursue common law based false advertising claims.

In Washington State, the legislature enacted the Consumer Protection Act, which similarly codified that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are” unlawful (RCW 19.86.020). To establish a claim under the Washington Consumer Protection Act (CPA), a plaintiff must prove five elements: (1) an unfair or deceptive act or practice that (2) affects trade or commerce and (3) impacts the public interest, and (4) the plaintiff sustained damage to business or property that was (5) caused by the unfair or deceptive act or practice. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co. (1986).  “Failure to satisfy even one of the elements is fatal to a CPA claim.” Sorrel v. Eagle Healthcare (2002). While each element carries its own set of particular criteria and micro-elements, courts generally construe such statutes as liberally as possible in order to protect consumers from conniving sellers. Panag v. Farmers Ins. Co. of Washington.

If the courts and legislature are so friendly to consumers, and the claims are seemingly easy to pursue, why are there a distinct lack of false advertising claims/cases in the videogame industry? Many customers simply don’t feel it is necessary to pursue a legal claim because their 60-dollar game turned out to not carry the particular features that were promised. The cost of litigation far outweighs the $60. It would likely take the coordinated effort of a law firm amalgamating thousands of consumers into a class-action lawsuit to make a claim against a videogame company profitable.

Additionally, even assuming gamers successfully band together to bring a lawsuit, publishers and their related developers are often careful with their marketing phrasing as to avoid false advertising claims. A notorious example involves the videogame Crash Team Racing Nitro-Fueled. In 2019, Publisher Activision and developer Beenox repackaged a 20–year-old game, Crash Team Racing, releasing a rehashed version with minor content additions and graphical improvements. Knowing that many gamers are distraught with modern gaming’s extensive use of microtransactions and hoping to solidify that the updated version will stay true to its roots, a member of the Nitro-Fuel team claimed in an E3 convention presentation that the entire game would avoid microtransactions. According to Beenox, the game would offer new content for free during the game’s lifecycle.

The game eventually released and there were no microtransactions. However, only months after the game released, Activision/Beenox introduced microtransactions to the game and changed certain game mechanics to encourage consumers to pay additional money to obtain in-game content faster. Consumers were met with a seemingly different product than what was advertised to them. While this certainly angered many consumers of the game, a closer look at the language the Nitro-Fuel E3 presenter used reveals that he separated microtransactions for cosmetic items in the game from microtransactions for new playable content. While new playable content was guaranteed to be free, cosmetic items were not. Thus, the two companies adding microtransactions later on for cosmetic items are likely not liable to a false advertising claim.

All in all, while consumers may pursue false advertising claims against fraudulent publishers/developers, it may be economically unviable or difficult to pursue once an investigation of marketing language is done.

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