A Look at Fallout 76's Legal Situation

Published: December 8, 2018 8:18 PM



Fallout 76 launched and received heavy criticism from gamers and shortly thereafter game journalists. Gamers were so discontent that a law firm launched an investigation and a class action lawsuit against Bethesda.

Migliaccio & Rathod LLC is the law firm suing Bethesda for deceptive trade practices, which has gained the attention of gamers and journalists alike. When the news came out that Bethesda bait and switched a nylon bag in place for the canvas bag that was supposed to be included in the $200 Power Armor Edition of Fallout 76, they expanded their investigation to now include that issue.


Now many are left wondering what route the investigation could take. The legal issue regarding the bags is less clear after Bethesda announced plans to manufacture it. Bruno Ortega-Toledo, paralegal for M&R told me "'Replacement canvas bags' does not necessarily equate to the bag that they originally advertised, so we’ll have to see what they actually deliver—and when, since there is no mention of a delivery date, only a cut-off date to file claims."

The original case, however, remains relatively unchanged. The primary plaintiffs of the case are still to be decided, according to Bruno Ortega-Toledo:


For the moment we are sifting through responses that we have received to our online questionnaire, so no word yet on the primary plaintiffs. As we mentioned in your last set of questions, we are looking to achieve what consumers want: a refund. We continue to receive calls and emails, build a client list, and research the issue.


nylon bag
The canvas bag which was supposed to come with the Power Armor Edition appears on the left.


When I asked Orega-Toledo about the process of a class action lawsuit, he told me:

...we will reach out to Bethesda to see if they’re interested in reaching an informal resolution. If not, we’ll move forward with the class action. In layman’s terms, that means putting together a complaint with named plaintiffs, summarizing the issues with the game, detailing the potential legal violations, and filing it in court.

To determine the viability of this case, I reached out to several law firms. Ryan Morrison, known in the gaming community as the Video Game Lawyer, talked with me over the phone so I could get his opinion on the case. I also talked with Zachary Strebeck of Strebeck Law, who provides legal services for game developers and tech companies.


I had informed Morrison about the bag issue, which at the time was breaking news, and he told me "If you're doing a switch like that, that's much more egregious." Although, we know now that this will likely not be actionable any longer.

I asked both lawyers if there were any other cases similar to the Fallout 76 situation. The case that came to both of their minds was the Sega and Gearbox case pertaining to Aliens: Colonial Marines. Morrison said:

That game was advertised everywhere with the caption at the bottom that said, 'actual gameplay footage,' and then when they bought the game none of that gameplay existed. It was a different interface, the levels didn’t exist, different game entirely. And that’s very different than a game putting up a trailer promo and then saying ‘actual gameplay may vary.'"

Morrison himself had not played Fallout 76 at that point (although he is a fan of the series), so he could not speak from experience how poor a shape the game might be in. "... but I would imagine everyone in the industry learned from that Sega and Gearbox case," said Morrison, "so I would have a hard time believing they have an easy case here by any means."



Aliens Colonial Marines
A screenshot from the controversial Aliens: Colonial Marines. Zachary Strebeck wrote about this case in 2015.


Strebeck, however, had some thoughts on the game's state on release. He said: "There’s always a delicate balance of what’s going to be an acceptable state for releasing a game. Given the difficulties of QA with such a huge, online game, there are always going to be problems. In this case, it appears that the problems were more than the general gaming public could handle." He told me he understood the gaming community's anger, but also that the fact that Bethesda is making efforts to patch the issues (see the "Inside the Vault" blog posts) counts for something.

This is, of course, one of the reasons why there is a lawsuit. Morrison says it's important to remember that in a class action lawsuit, you go in as an injured party.  It will depend on how the judge defines the class in the Fallout 76 case. In the Sega and Gearbox case, the judge defined the class as anyone who purchased the game day one or prior, since there were no review copies shipped. While Bethesda didn't send review copies, the pre-order B.E.T.A., among other things, complicates matters. Morrison continued:

...when you’re in a class like this, you’re suing someone, you’re going after damages to be made whole again. So that’s basically your 60 dollars that you paid whole on the game, that’s the most you’re getting here. There’s not going to be extra damages, it would be nearly impossible to imagine a scenario where you’re getting money for time loss or emotional damages or anything like that, you’re just going to get your money for the game back, except the lawyer is going to take their cut out of it.

Morrison also cited an "age-old saying" that the only person who wins a class action lawsuit is the lawyer. Another complication in this case that differs from the Aliens one is a matter of objectivity and subjectivity. Not only did Gearbox and Sega fail to deliver their promise of advertised gameplay footage, missions, and UI elements that were seen before release, but the game was just bad.


Morrison said he has seen a lot of people both hating and defending Fallout 76 on the internet.

I see a lot of people defending the game too, which worries me for the case as well because if this is subjectively bad, not objectively bad, that’s different. If it’s completely different than what they advertised, that’s different than the game’s not fun or there’s a couple bugs in it, you know?
Bugs like this T-posing ghoul is just the tip of the iceberg with Fallout 76.

M&R included the denial of refunds in their blog post outlining their investigation. Strebeck told me it would hinge on three elements: whether there was a misleading advertisement about the product, if buyers relied on said misleading advertisements, and lastly, if the consumer was damaged or injured. Strebeck said:

I guess that last one is where we might run into problems. If they purchased the game, and it was patched very quickly and continuously improved, have they really been injured? I understand the need for gamers to get into the game right away and play, but I’m not sure courts or federal agencies would see such a need for immediacy as damaging enough to impose liability.

Morrison told me he does not see this case as being a great remedy for the player, but rather as a profit for the law firm. The law firm takes a cut of the money in a case like this if they win. "99.9 percent of cases settle, or never see actual judgment," said Morrison, 'so I would expect this to be dismissed almost immediately or settled eventually." This is how legal procedures often go in cases like this, and it isn't accusing M&R of anything either. In fact, most have had a very positive reception towards M&R for "holding Bethesda accountable."

Strebeck left me with a few valuable nuggets. First, if there is truly an issue of false advertising, this can be reported to the FTC. He also said that legal relief from small purchases (like Fallout 76) is an uphill battle. Small claims courts are another option for litigation, but usually, the cost of the game is not worth the legal trouble.

"Ultimately," said Strebeck,  it’s a “caveat emptor” situation – make smart purchases and wait for reviews before buying. Don’t pre-order games. Be a smart consumer and you can hopefully avoid a lot of this."

It's a long process and there won't likely be a verdict any time soon. The case is changing near daily, with the developments of the collector's edition bag issue and patches to fix the game. For now, stay tuned to TechRaptor when more details come to light.

If you want to read our thoughts on Fallout 76, check out the review here.

Author: | Staff Writer
Austin cut his teeth writing various -- albeit shoddy -- fan-fiction stories on the RuneScape forums when he was in elementary school. Later on, he developed a deep love for flash games and wrote… Read More
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Bethesda Game Studios
Bethesda Softworks
Xbox One, PlayStation 4, PC
Release Date
November 14,2018
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