When the law firm Migliaccio & Rathod told the internet it was researching Bethesda for deceptive trade practices regarding Fallout 76, its website crashed. A post by one of the law firm’s interns on /r/pcgaming hit almost 20,000 upvotes and made it to the front page of Reddit.
“The response has been overwhelmingly positive,” Jason Rathod, a partner in the firm, told me over the phone.
Migliaccio & Rathod described itself as a tech savvy firm. Some of the people in its office are gamers and when it heard about Fallout 76’s rocky launch, it decided to look into what was going on. That’s when it discovered stories of people unhappy with the game trying to get a refund but being refused by Bethesda. It wanted to hear from fans directly, so it posted a blog post on its website and linked to it on Reddit.
“We've been inundated and we're still investigating the claims, but we do intend to put together a class action lawsuit,” Nicholas Migliaccio, another partner at the firm, told me over the phone. Migliaccio and Rathod said they’d received more than 200 phone calls and emails about Fallout 76. “The phones are ringing, and ringing, and ringing.”
“The vast majority of them are—’I sought a refund and they’re not issuing one to me,’” Rathod said. “The game is unplayable. We are inundated with those types of communications from people. I think people are just seeking to get their money back.”
Fallout 76’s launch has been bad. Both fans and critics are disappointed with the game’s lack of content and game-breaking bugs. During the beta, I explored too much and broke the main storyline, forcing me to roll a new character when the game launched. It’s easy to cheat and gain infinite money and experience. One player’s character bugged out and became invincible. Servers disconnect frequently. That’s just a partial list of issues.
“Most states' consumer protection statutes broadly prohibit unfair and deceptive conduct,” Rathod said. “For example, if a company has omitted a material fact or if they have deceived as to a material part of what was for sale. We think, with both of those, it sounds like people have claims. People would have liked to have known that they couldn’t get a refund. They also would have liked to have known about the serious playability problems they have. Particularly for paying a premium of $60. To pay that amount of money and receive this in exchange, it seems like it’s a good claim.”
Rathod mentioned Aliens: Colonial Marines, a shooter Sega published in 2013, as good precedent for a potential class action. The game was an abysmal failure and fans felt that the game Sega marketed was not the game they received. The fans rallied and filed a class action lawsuit against publisher Sega and developer Gearbox. Sega offered to settle the matter for $1.25 million, an amount to be paid out to people who’d purchased the game prior to its release. “This isn’t totally uncharted territory,” Rathod said.
At issue here, really, is Bethesda’s return policy. Fallout 76 wasn’t just a big new launch for Bethesda, it was also the first major launch on Bethesda.net—its own digital platform. It bypassed Steam entirely on the PC. On Steam, customers who’ve installed a game can return that game, for any reason, anytime before two weeks have passed or the customer has played two hours of the game.
Bethesda’s return policy is more stringent. “Digital Codes and opened CDs and DVDs cannot be returned under any circumstance. No exceptions to this policy unless where prohibited by law,” its return policy says. “Please be very careful when purchasing video games at the Bethesda Store.”
Migliaccio and Rathod said they’re still taking calls, building a potential client list, and researching similar cases. “After that we’ll reach out to [Bethesda] to see if they’re interested in an informal resolution,” Migliaccio said. “After that, we’ll move forward with the class action.”
Bethesda did not immediately respond to request for comment.