Author Topic: "Bait and Switch"/Fraud Class Action Suit?  (Read 15644 times)

Victoria Victrix

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"Bait and Switch"/Fraud Class Action Suit?
« on: September 16, 2012, 08:11:07 PM »
Something that jumped out at me from the White Paper on the impending closure:

"While NCSoft is covered largely by EULA statements, there are potential avenues for cases for fraud being brought against NCSoft in the case of long term advance subscription purchases.  By allowing for Paragon Studios to continue work on expansion content, heavily advertising that content, and releasing new content, it is reasonable to assume many paying customers were doing so with the expectation of being able to play said content.  If it could be shown NCSoft intended to do this in advance intentionally allowing Paragon to continue with the expectation of offering time on new releases (example: Guild Wars 2) as compensation, ‘bait and switch’ related fraud charges might be successfully applied in US and UK courts."

Considering that they were billing people right up to the moment they threw everyone out of Paragon Studios when they already KNEW they were going to shut the place down...do we have a case?

Any of you legal eagles want to weigh on on this (and possibly lay the groundwork for a class-action suit?)  Cause if so, I am in.

....wouldn't it be ironic if we got the IP/Code as the settlement?




Post Edited by Aggelakis to add:

Someone on the official forums has already gotten a MONETARY refund. It was in the troll thread where the OP falsely claimed that players would get alternate-game time or points. Note that this GM comment never happened. The OP was trolling. She thinks she was doing the player base a favor to "rally us together". By trolling us.

YOU WILL GET REFUNDS.
« Last Edit: September 17, 2012, 05:40:20 PM by Aggelakis »
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #1 on: September 16, 2012, 08:28:47 PM »
If this turns out to be a possible route of action, the IP and code should totally be the settlement that we ask for.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #2 on: September 16, 2012, 08:31:34 PM »
I'm no legal eagle... but this jumped out at me as well when I read it.

This was my comment on the original post.. " This by far my favorite part of this as that is the plan as I have heard Paragon points to Guild Wars 2 store credit!"
 

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #3 on: September 16, 2012, 08:32:40 PM »
If this turns out to be a possible route of action, the IP and code should totally be the settlement that we ask for.

Agreed. I think this is an option that should be pursued once the outcome of the negotiations is known. Probably our best last ditch effort idea yet.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #4 on: September 16, 2012, 08:42:20 PM »
I am no legal expert, but it doesn't take one to see that there is definitely something worth looking into.  There's no way NCSoft simply woke up on Black Friday and made the decision to axe CoH over coffee.  The case is compelling for several other commonsense reasons that I won't reiterate, but I'd love to hear some not-legal advice on this. 

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #5 on: September 16, 2012, 08:49:47 PM »
While there is no harm in looking at some options there, it's probably premature to spin up a suit untill NCSoft reveals their hand.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #6 on: September 16, 2012, 08:53:16 PM »
While there is no harm in looking at some options there, it's probably premature to spin up a suit untill NCSoft reveals their hand.
I don't think anyone is saying "SUIT. NCSOFT. NAO"  But we should definitely find out if it would ever be worth pursuing before putting it in as another plan Z.

Plinkyplonk

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #7 on: September 16, 2012, 08:56:12 PM »
I must admit - this has crossed my mind on several occasions. Glad to see it is noted.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #8 on: September 16, 2012, 08:57:59 PM »
I'm no legal eagle... but this jumped out at me as well when I read it.

This was my comment on the original post.. " This by far my favorite part of this as that is the plan as I have heard Paragon points to Guild Wars 2 store credit!"

If you're referring to a post on the official boards that mentioned an NCSoft Support letter, you may want to read this response.
Original post (mentioned in a RE: since OP was overwritten -- http://boards.cityofheroes.com/showpost.php?p=4390106&postcount=201
Zwillinger's response -- http://boards.cityofheroes.com/showthread.php?t=297095 (What overwrote the OP's first post.)

Not sure if this is what it was based on, but currently NCSoft has not addressed refunding players who have paid for VIP past Nov. 30th yet (which is why accounts were frozen from August 31 forward to prepare for a response/refund of unused time.)  It's safe to say that if you paid for time expiring before November 30th, you get no refund since the game is still running and you're still a VIP, as well as Paragon Points being a final transaction with available points still able to be spent in-game.  The assumption is that in the next few weeks, NCSoft's beancounters will have a plan to refund the players before or on the close date for their unused time paid to them.

But this thread isn't about that, it's about the fact that no warning was given that the game was closing, just a surprise layoff and freeze.  Not a lawyer, but I don't personally think there's much weight/action gained in pursuing it. 
« Last Edit: September 16, 2012, 09:07:26 PM by uninventive »

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #9 on: September 16, 2012, 09:05:59 PM »
Not to be a Debbie Downer, but the reality of a class action suit is unrealistic.


And if you think NCSoft would "settle" and give up an IP worth millions you are sadly mistaken. The most an individual could sue for is the amount they are out; with an upwards limit of $100 (Read the User Agreement people). While many want to argue that the User Agreement is not valid etc etc - it is a legal contract that can/will be upheld in court. Getting past the User agreement will require some pretty darn good legal strategist.


If there was a class action lawsuit you can only claim for unused sub fees (not paragon points fyi...since the market was left open for you to be able to spend thos epoints....). And my total amount of unused sub fees: $0....which is one reason they gave a 3 month grace period instead of shutting the game down on 8/31/2012...to use up some sub fees of those who subbed for 3/6/12 months.


Realistically let's look at this:
The absolute MOST a person could claim would be 9 months IF they completed a 12 month sub on 8/30/2012 since the game is open until 11/30/2012 (3 months). 9 months @ $15 = $135. How many people did that... a handful maybe. Most people will have 2-6 months left if they bought in bulk once 11/30/2012.


I'm sorry but I do not think any lawsuit in the end will bring anything close to what people think it will...except a long drawn out "battle" with verrry little "reward."

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #10 on: September 16, 2012, 09:11:49 PM »
Let's not get our hopes up. Even if there is a case, NCSoft's lawyers will bury it in red tape for longer than the game's been alive if needed.

However, with a bit of other leverage, it's possible it could have something of a positive effect but I cannot see them giving anyone the IP/code.

In the UK and EU the consumer is better protected by legislation than most places I believe and we have an organisation called "Trading Standards" - if you fail to meet the terms of your contract, you might get a visit from them, if you are a rogue trader. We would need hard evidence of somebody having bought product that was time dependent - like 6 months game time, within weeks of the announced closure. I don't think points or other stuff is going to cut it. But might be worth a look.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #11 on: September 16, 2012, 09:15:35 PM »
If there was a class action lawsuit you can only claim for unused sub fees (not paragon points fyi...since the market was left open for you to be able to spend thos epoints....). And my total amount of unused sub fees: $0....which is one reason they gave a 3 month grace period instead of shutting the game down on 8/31/2012...to use up some sub fees of those who subbed for 3/6/12 months.

A very good point: remember too, that in the United States, a class action suit can be SETTLED, where NCSoft admits no wrongdoing, does not get a guilty verdict, and to close the matter the class members are given something in lieu of reimbursement/payment.  Want to play LineageII with 1200 free points in in-game item packs when you feel like not playing NCSoft titles any longer?  Neither do I. 

That's one possible settlement outcome, worse ones than that are also possible: consider objective-minded, uninterested lawyers on both sides thinking of a "fair and reasonable" outcome, instead of advocates on your side against NCSoft's legal department thinking about what you like to happen as a player.  That's the reality of it.

This is an entertainment product.  Consider what a judge/jury would think about punitive damages from NCSoft versus another case, for example, a rental car company who kept recalled vehicles in fleet service to rent to unknowing customers after criminal charges were decided already in another trial.  This is a small priority in comparison to other civil matters.  But again, not a lawyer here.
« Last Edit: September 16, 2012, 09:26:31 PM by uninventive »

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #12 on: September 16, 2012, 09:47:22 PM »
I have taken classes in law,

what you are looking at is an international lawsuit based on the fact that NCSoft is technically a Korean company they may have partial amnesty so not only USA and UK courts will be involved. Also I bring to note that currently internet crime is not recognized in the court of law unless you attack a bank or deal with obscene media of certain varieties.

however there was recently 1 clause that may be to our advantage in proving bait and switch to an international court of law, this clause would be using the internet purchase taxation act backwards, the clause states that; when business is done online for goods or services the location of the server where the Purchase took place shall determine the rate of taxation and all laws regarding it.

technically, we bought and were sold content from USA and UK servers, therefore we could claim that the bait and switch although done from a Korean company was actually done under the jurisdiction of the USA and UK mainlands.

you've heard of paying off lawyers, Lawyers are actually only 1/2 of the court case no matter whats going on, the other-side is either a jury or a judge who does the actual decision making. Lawyers just try to prove their cases, so if your case is sound enough before you enter the courtroom then you'll win regardless what kind of defense they have. unless NCSoft pays off the judge for example then we do have a chance.

however the first part of our prosecution should be to establish in the court what jurisdiction the bait and switch PURCHASES AND TRANSACTION OF PRODUCTS actually took place, then move on to establishing Proof of bait and switch.

Advice; get your receipts of purchases and proof of Paragon being oblivious to the eminent shutdown and their willful opting of new releases and products concerning City of Heroes.

then you need to establish that this was bait and that NCSoft then performed a switch, however stress the issue that all purchases of the content were done on US and UK servers again just to clarify the point of the crime.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #13 on: September 16, 2012, 09:59:14 PM »
If you feel that NCSoft cheated you from your subscription money, you should sue regardless of any plans to save the game.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #14 on: September 16, 2012, 10:02:48 PM »
while i am not an expert in legal matters like most of the poeple in the thread i do agree that there could potentially be something there, and i dont doubt that there are poeple who make a living as lawyers playing the game who could possible have some say in this matter (as a course of action if it is feasible or if they wanted to represent us or whatever)

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #15 on: September 16, 2012, 10:16:29 PM »
Not to be a Debbie Downer, but the reality of a class action suit is unrealistic.


And if you think NCSoft would "settle" and give up an IP worth millions you are sadly mistaken. The most an individual could sue for is the amount they are out; with an upwards limit of $100 (Read the User Agreement people). While many want to argue that the User Agreement is not valid etc etc - it is a legal contract that can/will be upheld in court. Getting past the User agreement will require some pretty darn good legal strategist.


If there was a class action lawsuit you can only claim for unused sub fees (not paragon points fyi...since the market was left open for you to be able to spend thos epoints....). And my total amount of unused sub fees: $0....which is one reason they gave a 3 month grace period instead of shutting the game down on 8/31/2012...to use up some sub fees of those who subbed for 3/6/12 months.


Realistically let's look at this:
The absolute MOST a person could claim would be 9 months IF they completed a 12 month sub on 8/30/2012 since the game is open until 11/30/2012 (3 months). 9 months @ $15 = $135. How many people did that... a handful maybe. Most people will have 2-6 months left if they bought in bulk once 11/30/2012.


I'm sorry but I do not think any lawsuit in the end will bring anything close to what people think it will...except a long drawn out "battle" with verrry little "reward."

Unfortunately, I agree with Burnt Toasts.

However, if it means that I would get MONEY back instead of game credits, then I'm in.

Because, I do think it is a case of bait and switch if I signed up for CITY OF HEROES credit specifically and then am told, "You can use it for Guild Wars 2".

I liken it to going into a McDonald's:

"I'd like a Big Mac meal, please."
Cashier: "Okay, your total is $4.82 and your order # is 17."
A bit later...
Cashier: "Order 17, your order is ready!"
I approach the counter.
Cashier: "Oh... we were out of the sesame seed buns, so we're giving you a fish sandwich meal instead."

At that point, I'd ask for my money back.

I do realize there is no EULA at McDonald's, but I can't help believe that there MUST be something to protect the consumers.

Or... I would contact NCSoft and say, "Trust me...you don't WANT me going to one of your games. Your broadcast channels wouldn't hear the end of me."  >:(

Burnt Toast

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #16 on: September 16, 2012, 10:19:13 PM »
If you feel that NCSoft cheated you from your subscription money, you should sue regardless of any plans to save the game.


Or maybe I dunno...wait...to see what reparations they are going to be making to those customers who will have paid for time past 11/30/2012??


I highly doubt any lawyer worth anything would pick up a class action suit in this case - we are not looking at MILLIONS owed...more likely a grand total of probably $15,000-60,000 spread among 1,000 to 3,000 people. Most players have absolutely no right to refunds as NCSoft gave a 90 day notice. Every single person I played with regularly in game either did the 1 month or 3 month subs - which means NONE of them would even be eligible for any type of refund. I think some people are blowing this WAY out of proportion at what could happen. A Class action lawsuit will not force NCSoft to sell, it will not get people hundreds of dollars, and frankly can/would probably take YEARS for almost no benefit if it COULD even be won (highly unlikely).


I get it that people are hurt and they want NCSoft "to pay" for closing down COH, but realistically a class action lawsuit will achieve nothing in the grand scheme of things. Advising people to do this also negates their ability to deal with the issue on a individual basis with their financial institution/credit card company....you can't ask for a refund from your bank/credit card company AND sue for unused sub time. My advice is to follow the individualized approach if NCSoft does not contact you by going through your financial institution. NCSoft is not obligated to anyone who is not owed prepaid sub time past 11/30/2012...plain and simple.





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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #17 on: September 16, 2012, 10:32:45 PM »
This should be something to look into AFTER November. We don't want to engage in a legal battle right now. What we need is to keep our current work and march on.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #18 on: September 16, 2012, 10:57:56 PM »
I have taken classes in law,
however there was recently 1 clause that may be to our advantage in proving bait and switch to an international court of law, this clause would be using the internet purchase taxation act backwards, the clause states that; when business is done online for goods or services the location of the server where the Purchase took place shall determine the rate of taxation and all laws regarding it.

technically, we bought and were sold content from USA and UK servers, therefore we could claim that the bait and switch although done from a Korean company was actually done under the jurisdiction of the USA and UK mainlands.

First off, I am not a lawyer.
That said, my understanding that is in cases like this, the suit will not be against NCsoft proper, the international company from South Korea, but NCsoft West, its wholly own US subsidiary. NCsoft West is an US Corporation that is subject to all the Laws of the United States. It would also be subject to all states that it has a physical presence in (e.i. Texas, Washington state and California) as well as any state the company does business in (Most likely, all of them.) In summary, all the normal laws that apply to a US Corp apply here

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #19 on: September 16, 2012, 11:43:13 PM »
NCSoft has already had to pay Richard Garriott $32 million in damages over the way they handled his departure from poor doomed Tabula Rasa. The Texas court that ruled on the case awarded him $28 million in 2010...

http://www.statesman.com/business/technology/garriott-wins-28-million-jury-award-in-ncsoft-831054.html

...but NCSoft chose to appeal the decision - and lost. The revised figure of $32 million includes interest and legal fees.

http://www.gamasutra.com/view/news/127833/Appeals_Court_Upholds_Garriotts_32_Million_Case_Against_NCSoft.php#.UFZg1a7KP_k

Something tells me that they'd be somewhat disinclined to face another protracted legal battle in the US courts, so I suspect they've made sure there aren't any legal loopholes available for exploitation in the actions they've taken with City of Heroes thus far.

However, I'm an artist not a lawyer, so there's a good chance I may be completely wrong ;)
There is another possibility of course - they may have plans for the continued existence of CoH outside the company, and therefore aren't worried about the possibility of class actions coming back to bite them in the behind at a later date...

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #20 on: September 16, 2012, 11:57:37 PM »

I doubt they are worried about a class action lawsuit; because the majority of players have no merit in such a claim. Those that do have a claim and decide instead to seek relief from their financial institution null their ability in such a claim...what is left are a few people who NCSoft can drag a long for years for what $90?


Richard Garriott's claim is/was completely different than those few players who subbed for 6/12 months and will have some time left on their subs after 11/30/2012.


My advice is for individuals to contact their banks/credit card companies as soon as possible and seek reparations through them. A class action suit will not bring this game back...it will not garner anyone thousands of dollars (except a lawyer), and is completely unrealistic in terms of winning. I think it is great people are so passionate about the game, but sometimes you have to set aside that passion and look at things from a realistic point of view.





NCSoft has already had to pay Richard Garriott $32 million in damages over the way they handled his departure from poor doomed Tabula Rasa. The Texas court that ruled on the case awarded him $28 million in 2010...

http://www.statesman.com/business/technology/garriott-wins-28-million-jury-award-in-ncsoft-831054.html

...but NCSoft chose to appeal the decision - and lost. The revised figure of $32 million includes interest and legal fees.

http://www.gamasutra.com/view/news/127833/Appeals_Court_Upholds_Garriotts_32_Million_Case_Against_NCSoft.php#.UFZg1a7KP_k

Something tells me that they'd be somewhat disinclined to face another protracted legal battle in the US courts, so I suspect they've made sure there aren't any legal loopholes available for exploitation in the actions they've taken with City of Heroes thus far.

However, I'm an artist not a lawyer, so there's a good chance I may be completely wrong ;)
There is another possibility of course - they may have plans for the continued existence of CoH outside the company, and therefore aren't worried about the possibility of class actions coming back to bite them in the behind at a later date...

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #21 on: September 17, 2012, 12:00:33 AM »
And if you think NCSoft would "settle" and give up an IP worth millions you are sadly mistaken. The most an individual could sue for is the amount they are out; with an upwards limit of $100 (Read the User Agreement people).
...
Realistically let's look at this:
The absolute MOST a person could claim would be 9 months IF they completed a 12 month sub on 8/30/2012 since the game is open until 11/30/2012 (3 months). 9 months @ $15 = $135. How many people did that... a handful maybe. Most people will have 2-6 months left if they bought in bulk once 11/30/2012.

Not to be a Puppy Upper, and my strong disclaimer is that I am most emphatically not a lawyer, all of this is hypothetical, and I am really hoping that it doesn't come to that, but there are a few things that I think makes this case unique.

First, as was pointed out in the top post, NCsoft was actively taking money from people for a service and virtual items that they knew would be worthless in three months.  Yes, the Terms of Service say that they have the right to cancel the service at any time, but there's just something skeevy about taking money from people--in some cases, $100+--for something that you know is going to be completely worthless after November.  It's a little like selling someone a car "AS IS" that you know has a bum engine in it that will give out in three months and not disclosing that fact.  Based on financial reports, the active development team, posts regarding future content (which I am not blaming Paragon Studios for--they were misled as well), it was a reasonable expectation for the people plopping down money that the service would last more than three months. And if, for example, I had just re-upped for a year or plopped down $100 in the store for a block of Paragon points, I would feel strongly that I'd been ripped off--effectively sold a car with a bum engine that NCsoft knew would stop working November 30 without that being disclosed.

Second, while class action lawsuits rarely recompense the class in any meaningful manner, they are expensive to defend.  If there were such a lawsuit, it would cost NCsoft a lot of money and other resources, money and resources they undoubtedly don't want to spend.  Even if there were no class action lawsuit but people started filing mass numbers of small claims cases all around the United States, it would cost even more money and other resources.  My point is that even if there is little to nothing for any individual person to gain from doing this, the sheer hassle of it might entice NCsoft to seek to transfer the property--including any potential legal liability--to someone else so that they don't have to deal with it.  (And if it happens to be someone who keeps the game up and running, it would be highly likely that the legal liability goes away since the service will remain intact.)

Having said all of that, while I understand how you feel, I'm not suggesting any specific course of action one way or another.  And I must reiterate, I am not a lawyer.  If you want to follow this course of action, I'd suggest retaining the services of one.  If someone reading this is a lawyer, under the understanding that you're not providing legal advice, feel free to chime in.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #22 on: September 17, 2012, 12:16:21 AM »
First off, I am not a lawyer.
That said, my understanding that is in cases like this, the suit will not be against NCsoft proper, the international company from South Korea, but NCsoft West, its wholly own US subsidiary. NCsoft West is an US Corporation that is subject to all the Laws of the United States. It would also be subject to all states that it has a physical presence in (e.i. Texas, Washington state and California) as well as any state the company does business in (Most likely, all of them.) In summary, all the normal laws that apply to a US Corp apply here

you may not be aware but corporations utilize subsidiaries as an escape method from liability, for example in this case it wasn't the US NCsoft that made the decision to 'can' CoH, instead it was the US subsidiary's boss in korea, NCSoft korea expects us to target thier US subsidary when they are actually legally responsible for the bad action.

Although the US Subsidiary must take orders from the original company owners in korea, the Korean NCSoft may have done what most multinational corporations have done, which is; Force the other national subsidiaries to provide their own economic growth and funding due to the fact that they are technically separate companies due to their founding in another country.

it's what slime-balls do to escape liability on their own behalf.

further more the Korean Head of the company could be targeted with the right court-plan. but we'd need help from the US branch of NCSoft to get that information of who gave the be-header orders to chop. this maybe improbable.

but still the court case could go through targeting the korean company as a whole, but again I suggest not suing for money but rather the livelihood of the game itself. and only after all current negotiations with ncsoft are done and only if those negotiations fail.

though My legal council to those who want to definitely pursue this if the negotiations fail; get your evidence now, you need proof of purchases with dates, and correlated data of the cut-off date from NCSoft, also your purchase date should be before the date NCSoft announced the cutoff of CoH. you also need proof that no refund was given. a simple recording of bank statements of the account you used to pay for COH last will do fine.

remember sue for bait and switch, not compensation, and definitely not bait and switch and compensation as you will not rescue the game that way.
There is always another way. But it might not work exactly like you may desire.

A wise old rabbit once told me "Never give-up!, Trust your instincts!" granted the advice at the time led me on a tripped-out voyage out of an asteroid belt, but hey it was more impressive than a bunch of rocks and space monkies.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #23 on: September 17, 2012, 12:27:30 AM »

And for those people who do decide to actually try and sue... good luck getting your actual money back (not being a jerk...being a realist).


Going forth with litigation does not allow you to seek a refund from your financial institution. You cannot sue for/dispute something that has been given back to you already.


Regarding the cash spent on the paragon market - there is NOTHING saying a user could not be using those points NOW. NCSoft did not stop one's ability to buy costumes, services, etc with paragon points. There is no guarantee on time limits for costumes, etc... which is explicitly laid out in the TOS/User Agreement. Is it crappy...sure...but it is legal. The game ha snot ended and you can still use those hundreds or thousands of paragon points you purchased; not doing so is your choice and is not indicative of legal wrong doing on NCSoft's part; just plain greed. NCSoft does not have to provide 6 months notice.. or 1 year notice...and legally they did not have to even provide a 3 month notice (which was a smart choice for them to do legally to help circumvent refunds for anyone with 3 month subs etc).


I am not a lawyer either, but part of my degree forced me to take 2 years worth of legal studies courses. I will say it again..and again... Your best bet is to go through your financial institution/credit card company. If you wait too long you can lose your right to dispute the charges by NCSoft...and then are left standing there going WTF!?!?


At this point I am getting so agitated by all the hate, misinformation, etc that is out there that I am simply ready to uninstall CoH and call it a day. When I see threads like this and people trying to paint a class action suit as something actionable/justified it irritates me to no end. People on this forum and the official forums are spreading misinformation left and right. Meanwhile the petition is stalling out. The former devs seem to have moved on. The rumored negotiations have gone silent (not even a "we are still talking to NCSoft" post from anyone. I am tired of feeling like I am completely in the dark. I am tired of having to inject reality into threads to get people to not make huge mistakes. The direction of this movement seems to have splintered and spun out of control. People claiming this and that just to get others going, get people's hopes up... so frickin aggravating.


I think I will back off everything until Wednesday's coffee talk and see if Zwill says anything with any type of indication of how things are going. If he him-haws and doesn't even say something like "We are still trying to see what can be done." or "Negotiations are still on going" I think that will be my cue to bow out. I can't keep fighting and hoping when there is no light to look to for inspiration. At this point in time it is taking everything I have to not call people out personally on their lies on these forums and the official ones.


TonyV you have done a great job, but I think if this Save CoH campaign is going to work we need more people involved in the actual campaign at the top...organizing more things...speaking with someone official and relaying TRUE information. People all over, like myself, are beginning to lose hope that anything productive can be done.

Not to be a Puppy Upper, and my strong disclaimer is that I am most emphatically not a lawyer, all of this is hypothetical, and I am really hoping that it doesn't come to that, but there are a few things that I think makes this case unique.

First, as was pointed out in the top post, NCsoft was actively taking money from people for a service and virtual items that they knew would be worthless in three months.  Yes, the Terms of Service say that they have the right to cancel the service at any time, but there's just something skeevy about taking money from people--in some cases, $100+--for something that you know is going to be completely worthless after November.  It's a little like selling someone a car "AS IS" that you know has a bum engine in it that will give out in three months and not disclosing that fact.  Based on financial reports, the active development team, posts regarding future content (which I am not blaming Paragon Studios for--they were misled as well), it was a reasonable expectation for the people plopping down money that the service would last more than three months. And if, for example, I had just re-upped for a year or plopped down $100 in the store for a block of Paragon points, I would feel strongly that I'd been ripped off--effectively sold a car with a bum engine that NCsoft knew would stop working November 30 without that being disclosed.

Second, while class action lawsuits rarely recompense the class in any meaningful manner, they are expensive to defend.  If there were such a lawsuit, it would cost NCsoft a lot of money and other resources, money and resources they undoubtedly don't want to spend.  Even if there were no class action lawsuit but people started filing mass numbers of small claims cases all around the United States, it would cost even more money and other resources.  My point is that even if there is little to nothing for any individual person to gain from doing this, the sheer hassle of it might entice NCsoft to seek to transfer the property--including any potential legal liability--to someone else so that they don't have to deal with it.  (And if it happens to be someone who keeps the game up and running, it would be highly likely that the legal liability goes away since the service will remain intact.)

Having said all of that, while I understand how you feel, I'm not suggesting any specific course of action one way or another.  And I must reiterate, I am not a lawyer.  If you want to follow this course of action, I'd suggest retaining the services of one.  If someone reading this is a lawyer, under the understanding that you're not providing legal advice, feel free to chime in.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #24 on: September 17, 2012, 12:40:57 AM »
I know this sounds small and petty as I write this but,

My plan is to  file suit in small claims court.  Currently I am trying to determine if I can sue in my local jurisdiction and not have it immediately tossed out.  If thats the case and I can force NCsoft to make an appearance I will gladly do so. It won't be about getting anything for myself it will be about hurting them just a little

Re: Class actions, I wouldn't hope for anything from them. The lawyers get their fees the plaintifs get coupons.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #25 on: September 17, 2012, 12:55:28 AM »
It is my belief that the decision to drop Paragon Studios and City of Heroes was made on or just a couple of days before August 31, the date of the announcement.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #26 on: September 17, 2012, 01:11:17 AM »
I'm still waiting for a real lawyer to weigh in on this.  I know there are a couple here.  Forgive me but the minute you preface your words with "I'm not a lawyer but...." it just becomes "In my opinion as someone who watches a lot of TV."
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #27 on: September 17, 2012, 01:50:43 AM »
I'm still waiting for a real lawyer to weigh in on this.  I know there are a couple here.  Forgive me but the minute you preface your words with "I'm not a lawyer but...." it just becomes "In my opinion as someone who watches a lot of TV."

That's exactly the spirit in which my post should be taken!  ;D  With a good enough scriptwriter, director, cast and film crew, I can win ANY case!  Bring 'em on!

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #28 on: September 17, 2012, 02:47:47 AM »

Or maybe I dunno...wait...to see what reparations they are going to be making to those customers who will have paid for time past 11/30/2012??


I highly doubt any lawyer worth anything would pick up a class action suit in this case - we are not looking at MILLIONS owed...more likely a grand total of probably $15,000-60,000 spread among 1,000 to 3,000 people. Most players have absolutely no right to refunds as NCSoft gave a 90 day notice. Every single person I played with regularly in game either did the 1 month or 3 month subs - which means NONE of them would even be eligible for any type of refund. I think some people are blowing this WAY out of proportion at what could happen. A Class action lawsuit will not force NCSoft to sell, it will not get people hundreds of dollars, and frankly can/would probably take YEARS for almost no benefit if it COULD even be won (highly unlikely).


I get it that people are hurt and they want NCSoft "to pay" for closing down COH, but realistically a class action lawsuit will achieve nothing in the grand scheme of things. Advising people to do this also negates their ability to deal with the issue on a individual basis with their financial institution/credit card company....you can't ask for a refund from your bank/credit card company AND sue for unused sub time. My advice is to follow the individualized approach if NCSoft does not contact you by going through your financial institution. NCSoft is not obligated to anyone who is not owed prepaid sub time past 11/30/2012...plain and simple.

I have a one year from May, just saying I should be owned something for my unused time. There has to be more than me out there.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #29 on: September 17, 2012, 03:01:32 AM »
I'm still waiting for a real lawyer to weigh in on this.  I know there are a couple here.  Forgive me but the minute you preface your words with "I'm not a lawyer but...." it just becomes "In my opinion as someone who watches a lot of TV."

And to this I would caution: ANYBODY can come on here and state they're a lawyer.

Anybody.

The beauty of the Internet.

My advice, should somebody wish to pursue it... go speak to a REAL lawyer.

You know... face to face.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #30 on: September 17, 2012, 03:09:02 AM »
I'm still waiting for a real lawyer to weigh in on this.  I know there are a couple here.  Forgive me but the minute you preface your words with "I'm not a lawyer but...." it just becomes "In my opinion as someone who watches a lot of TV."

I'll weigh on in this tomorrow, when my brain isn't fried from mothership raids and TF's for several hours straight and I've had some time to look things up and think it through.  I've dealt a fair amount with fraud cases, though not in this context, so I can at least speak from experience.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #31 on: September 17, 2012, 03:48:57 AM »

 Most players have absolutely no right to refunds as NCSoft gave a 90 day notice.


NcSoft never gave me a notice..Still waiting for that email. I found out when it was posted on the boards.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #32 on: September 17, 2012, 04:15:59 AM »
Pretty sure that's how we all found out.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #33 on: September 17, 2012, 04:25:23 AM »
One of my accounts was renewed on August 2 for another 12 months, and I bought another $100 worth of Paragon Points on one in late June.

I would have done neither if I knew this.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #34 on: September 17, 2012, 04:26:26 AM »

Exactly...


Taking advice from someone who claims to be a legal expert/lawyer/etc regarding a legal issue over an internet forum - NOT a good idea.


If you are SERIOUSLY considering small claims etc - go see a real lawyer or at least call one.


No matter what though - I am urging people to contact their financial institution/credit card company soon as there are explicit time frames for disputing charges.



And to this I would caution: ANYBODY can come on here and state they're a lawyer.

Anybody.

The beauty of the Internet.

My advice, should somebody wish to pursue it... go speak to a REAL lawyer.

You know... face to face.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #35 on: September 17, 2012, 04:26:45 AM »
Pretty sure that's how we all found out.


I would think that would make a case.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #36 on: September 17, 2012, 04:27:52 AM »
Case or not... if someone was planning to go this route, start now. By the time you get anywhere on a case like this is will be after November, if your lucky. The leagal system moves like some threw caltrops down in front of it.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #37 on: September 17, 2012, 04:30:21 AM »
One of my accounts was renewed on August 2 for another 12 months, and I bought another $100 worth of Paragon Points on one in late June.

I would have done neither if I knew this.


Contact your credit card company, but I will caution you regarding this: You have no claim in regards to the paragon points. You purchased points - you got the points - what you do with those is your choice and you will have had 4 months to spend them as you like. The points were delivered with no condition that you would have 6 months..or a year to spend them...unlike a 12 month subscription.


On the other hand the unpaid time you are owed for 9 months since you cannot play from 12/1/2012 on.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #38 on: September 17, 2012, 04:31:30 AM »

Actually the announcement has been on the NCSoft launcher since 8/31/2012 - whether you decided to read it or not was your choice.





Pretty sure that's how we all found out.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #39 on: September 17, 2012, 04:34:00 AM »

You, like every other player, were given notice on 8/31/2012 when you opened the NCSoft launcher. It is still on there and gives notice of the games closure. It is the best place to tell people that the game is closing as emails change etc etc, but everyone has to open the launcher to play the game. And NCSoft is under no legal obligation to give you a 3 month notice....




I would think that would make a case.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #40 on: September 17, 2012, 04:47:53 AM »

Times and rates for small claims cases vary from county to count in the US. On AVERAGE it can cost between $10-$20 to file a small claims case. From the date of filing you can expect your day in court anywhere from 45-90 days after filing - again these are AVERAGES and can vary depending on many factors. Again I am not a lawyer, but I did work as a Senior Paralegal for a firm in NYC while completing my PhD. And a warning to ANYONE claiming to be a lawyer and doling out advice online... EVERY state in the USA has strict laws regarding the Unauthorized Practice of Law (UPL). If you truly are considering legal action against NCSoft PLEASE consult with a licensed attorney either on the phone or in person before doing anything. Please do not take the word of people on an internet forum claiming to be lawyers; they could easily do more harm to your potential case than good. And AGAIN please consider calling your financial institution and inquiring about disputing the charges for any unpaid subscription time. I again will caution anyone about trying to dispute the purchase of paragon points; because if NCSoft fights it and can prove they provided you with the service; irregardless of when (even 8/30/2012) your financial institution could not only deny your dispute but could also discontinue servicing your account on the basis of filing a fraudulent dispute.


So what am I saying??


If you are owed subscription time: Either speak to an attorney face to face or contact your financial institution regarding disputing any unused sub time you paid for in advance.


If you are going to attempt to get reimbursement on a purchase of paragon points: Please speak to an attorney face to face.



Case or not... if someone was planning to go this route, start now. By the time you get anywhere on a case like this is will be after November, if your lucky. The leagal system moves like some threw caltrops down in front of it.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #41 on: September 17, 2012, 04:49:37 AM »
I believe my husband has 18 months paid ahead.

I have an entirely different situation.  When I signed the contract to create the "Guest Author" arc, as part of my payment I was given a "lifetime" subscription, which in the fine print was five years.  There are still three years of that to run.  With the closure date I should be offered equivalent compensation, and I am not sure if fraud/"bait and switch" holds here, but it might.

Not that I expect to get anything out of it, but I can certainly generate some ill-will when my fans learn I was cheated, should that come to pass on Dec 1.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #42 on: September 17, 2012, 04:56:04 AM »

Mercedes yours is a truly unique situation as you were compensated for a service provided...I truly hope you can get your situation resolved through a competent attorney. If going through your financial institution is not possible regarding your husbands prepaid subscription time...I am hopeful that the legal system will grant you the financial relief he deserves.



I believe my husband has 18 months paid ahead.

I have an entirely different situation.  When I signed the contract to create the "Guest Author" arc, as part of my payment I was given a "lifetime" subscription, which in the fine print was five years.  There are still three years of that to run.  With the closure date I should be offered equivalent compensation, and I am not sure if fraud/"bait and switch" holds here, but it might.

Not that I expect to get anything out of it, but I can certainly generate some ill-will when my fans learn I was cheated, should that come to pass on Dec 1.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #43 on: September 17, 2012, 04:59:57 AM »
Actually the announcement has been on the NCSoft launcher since 8/31/2012 - whether you decided to read it or not was your choice.
This launcher?


Now I will grant that once you click "City of Heroes" you get to see this:


But 1) the story isn't on the news page, 2) the feature they want us to see here is that Nature Affinity is available on the Paragon Market, 3) the other features they want to draw attention to are Amplifiers, Water Blast, and More Enhancement Trays.

If "we put the story on the launcher, it's not our fault if you didn't see it" was legally binding, we wouldn't have to click to confirm that we'd read the EULA when it changed.  "Hey, we put a link to the EULA right there in the launcher, it's not our fault if you didn't see it and confirm that you read it," said no game company ever.

At any rate, the only way anyone can find out about the closure right now is by either logging into the game, or selecting City of Heroes in the launcher and looking very, very closely at what's in the lower right column.  If someone isn't doing that (let's say, for example, they're on a business trip, vacation, working a ton of overtime, otherwise distracted and unable to log into the game right now), they have no way of knowing what's going on unless they frequent the forums or follow the CoH feeds on Twitter or Facebook.

Regardless of whether or not email address change over time, they'd still get better coverage by sending out email to every address they have on file.

Edit: And, just for the record, I'm neither supporting nor attempting to dissuade anyone from considering legal action.  I'm just pointing out flaws I see in an argument.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #44 on: September 17, 2012, 05:08:15 AM »
This launcher?


Now I will grant that once you click "City of Heroes" you get to see this:


But 1) the story isn't on the news page, 2) the feature they want us to see here is that Nature Affinity is available on the Paragon Market, 3) the other features they want to draw attention to are Amplifiers, Water Blast, and More Enhancement Trays.

If "we put the story on the launcher, it's not our fault if you didn't see it" was legally binding, we wouldn't have to click to confirm that we'd read the EULA when it changed.  "Hey, we put a link to the EULA right there in the launcher, it's not our fault if you didn't see it and confirm that you read it," said no game company ever.

At any rate, the only way anyone can find out about the closure right now is by either logging into the game, or selecting City of Heroes in the launcher and looking very, very closely at what's in the lower right column.  If someone isn't doing that (let's say, for example, they're on a business trip, vacation, working a ton of overtime, otherwise distracted and unable to log into the game right now), they have no way of knowing what's going on unless they frequent the forums or follow the CoH feeds on Twitter or Facebook.

Regardless of whether or not email address change over time, they'd still get better coverage by sending out email to every address they have on file.

Edit: And, just for the record, I'm neither supporting nor attempting to dissuade anyone from considering legal action.  I'm just pointing out flaws I see in an argument.

Not to mention further that even if it was there, them going "Buy this new powerset!" 3 days before they're like "OK, all of you GTFO. Pool's closed, you don't have to go home but you can't stay here!", is a bit shifty either way.

There's certainly an argument to be made for the bait and switch, presuming of course, they don't sell the IP and Code to another developer, or rescind their closing of the game, which the passing of each day and the more developers and artists that find employment elsewhere becomes more and more unlikely.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #45 on: September 17, 2012, 05:08:59 AM »
From a law -student-, here:

I'd just like to note for the people talking about the EULA, that while the EULA is considered a valid 'terms of use' agreement, it is superseded by any actual legal contract.  The purchase of a service for money constitutes a legal contract.  While NCsoft has the right to cancel their service at any time, if you have paid for twelve months and only receive six they are effectively in breach of contract and may be required by law to remedy the breach.

Keep in mind, breach-of-contract and partial breach penalties are calculated on the concept of returning the involved parties to their standing prior to the harm caused by the breach.  Harm will be calculated by prorating the unfulfilled amount of the contract.

Fraud has a whole different set of rules, and is much harder to prove.  My coursework hasn't done a lot on that topic yet.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #46 on: September 17, 2012, 05:13:06 AM »
That's like saying a distracted driver shouldn't be held accountable if they run a red light. The information is right there in the top spot of the NEWS section. NCSoft has covered their bases by notifying people through the launcher as well as by stopping all recurring payments effective 8/31/2012. All I am saying is that one does not have an actionable case by stating "I was not informed directly by NCSoft" because all players have been given notice and all billing has ceased. The only people who have a legitimate grievance imo are those with account time paid in advance after 11/30/2012; to which I have repeatedly suggested getting in touch with their financial institution and/or speaking to a real live attorney face to face and not someone who claims to be one on the internet. My goal here is to interject a lil bit of reality into a passionate group who sometimes seem to think they have a multi million dollar case because their game is closing down. There are no punitive damages to be sought...there is no property to reclaim...the only LEGITIMATE claim anyone has is time they paid for after 11/30.2012.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #47 on: September 17, 2012, 05:18:03 AM »

Grrr there is no BAIT AND SWITCH at play here. Even if you bought Nature Affinity on 8/30/2012 you still have 3 months to play it. There is no guarantee of you are buying this set for 120 days...or 1 year. Same goes for Paragon Points....you bought them and can still use them; which is why the store was left open. Whether you choose to use them or not is your choice. Whether NCSoft chooses to give you credit in another game for them...is their choice.


Is it morally correct?? Depends on who you ask. Is it legally actionable...imo no. But if you seriously think you have a case; by all means seek out an attorney in the real world....it's your money/time.



Not to mention further that even if it was there, them going "Buy this new powerset!" 3 days before they're like "OK, all of you GTFO. Pool's closed, you don't have to go home but you can't stay here!", is a bit shifty either way.

There's certainly an argument to be made for the bait and switch, presuming of course, they don't sell the IP and Code to another developer, or rescind their closing of the game, which the passing of each day and the more developers and artists that find employment elsewhere becomes more and more unlikely.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #48 on: September 17, 2012, 05:19:40 AM »
All I am saying is that one does not have an actionable case by stating "I was not informed directly by NCSoft" because all players have been given notice and all billing has ceased.
If they weren't already paid up ahead of time (multiple month subs) and have opened the launcher specifically to the CoH page.

You won't see any notice at all if you don't open the launcher.

You won't see any notice at all if you open the launcher to start up Aion.

And if you've paid in advance, not seeing NCsoft bill your credit card this month is business as usual.

This isn't like someone running a red light they didn't see.  This is like someone driving the normal speed limit through a school zone that was "clearly" marked by a sign that was hiding behind a tree that had grown over it.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #49 on: September 17, 2012, 05:19:54 AM »

And most financial institutions should be able to help you resolve this issue without ever stepping foot in a courtroom..and in a MUCH more expedient manner.



From a law -student-, here:

I'd just like to note for the people talking about the EULA, that while the EULA is considered a valid 'terms of use' agreement, it is superseded by any actual legal contract.  The purchase of a service for money constitutes a legal contract.  While NCsoft has the right to cancel their service at any time, if you have paid for twelve months and only receive six they are effectively in breach of contract and may be required by law to remedy the breach.

Keep in mind, breach-of-contract and partial breach penalties are calculated on the concept of returning the involved parties to their standing prior to the harm caused by the breach.  Harm will be calculated by prorating the unfulfilled amount of the contract.

Fraud has a whole different set of rules, and is much harder to prove.  My coursework hasn't done a lot on that topic yet.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #50 on: September 17, 2012, 05:22:01 AM »
Mercedes yours is a truly unique situation as you were compensated for a service provided...I truly hope you can get your situation resolved through a competent attorney. If going through your financial institution is not possible regarding your husbands prepaid subscription time...I am hopeful that the legal system will grant you the financial relief he deserves.

Part of that unique situation is that she has a guy whose job it is to look at her contracts with a microscope.  Maybe it would be useful to hear what he has to say.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #51 on: September 17, 2012, 05:22:15 AM »
However, if it means that I would get MONEY back instead of game credits, then I'm in.
There was already someone who posted on the official boards that they got their money back on unused VIP time. It seems to have gotten eaten in the fuffle that happened from the troll who posted the falsehood that people wouldn't get refunds.

YOU WILL GET REFUNDS. The troll posted a falsified comment from a GM - a comment that was never made - and has been banned.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #52 on: September 17, 2012, 05:23:10 AM »
Grrr...

We have angered The Toast!   ;D

EDIT: I guess I hit "Post" right after Agg...
I wouldn't use the word "replace," but there's no word for "take over for you and make everything better almost immediately," so we just say "replace."

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #53 on: September 17, 2012, 05:24:10 AM »
Now, see, if I see a refund show up on my credit card from NCsoft, that might clue me in, but I don't expect to see that until after Nov. 30.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #54 on: September 17, 2012, 05:25:46 AM »

"Reasonable Effort" it is a legal term... look it up :) NCSoft has made a reasonable effort. As part of that effort I am willing to bet that prior to November 1, 2012 a bulk email will also be sent out notifying anyone on their mailing list of the closure.


I find it very hard to believe that in the next 6 weeks people who have 3-6-12 month subs will not find out about the closure; whether it be through the launcher, an email, reading an article online, twitter, etc etc etc. And to those people I will continue to suggest the same thing...talk to your bank/credit card company or a licensed attorney in your area.



If they weren't already paid up ahead of time (multiple month subs) and have opened the launcher specifically to the CoH page.

You won't see any notice at all if you don't open the launcher.

You won't see any notice at all if you open the launcher to start up Aion.

And if you've paid in advance, not seeing NCsoft bill your credit card this month is business as usual.

This isn't like someone running a red light they didn't see.  This is like someone driving the normal speed limit through a school zone that was "clearly" marked by a sign that was hiding behind a tree that had grown over it.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #55 on: September 17, 2012, 05:29:14 AM »

Nah not angry...frustrated. Tired of people thinking they are OWED anything. the only people OWED anything are those with long term subs. And instead of going on and on about class action suits etc...they should be focusing on getting their money back the fastest/easiest way possible - instead of daydreaming that a lawsuit over paragon points and $90 worth of sub time will save CoH and/or show NCSoft! hehe



We have angered The Toast!   ;D

EDIT: I guess I hit "Post" right after Agg...

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #56 on: September 17, 2012, 05:31:51 AM »

Considering that her situation is unique and not applicable to you or me...it bears no legal relationship to our situation.


If/when she is compensated it is because she had a contract with NCSoft for 5 years (roughly $900) of game time as payment for her authoring services. NCSoft never guaranteed the average player that the game would be around next week or next year.





Part of that unique situation is that she has a guy whose job it is to look at her contracts with a microscope.  Maybe it would be useful to hear what he has to say.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #57 on: September 17, 2012, 06:01:53 AM »

There are a lot of 'what ifs' going on right now.

The most important, hinging on 'what if' NCSsoft says thanks for the money, you long term subscribers, now go play GW2.

If they offer refund, or give a choice for refund or a higher equivilant of game play, then it makes it harder to do.

The way I see it, this would only apply to long term subscribers.  Nature affinity, paragon points, etc, probably will not warrant a legal position.

Its a fair long shot in either case, but interesting to look at.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #58 on: September 17, 2012, 06:58:45 AM »
Semi related question:

there are those of us who bought VIP time in bulk.
Now players are having their accounts set as VIP and/or their renew dates removed.

So essentially we paid for a service in advance that has now been rendered free. If we had been paying month to month, there would be 3 months we did not pay for the service, but we are now since we paid in advance.

There anything that can be done about that, aside complaining to NCSoft?

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #59 on: September 17, 2012, 08:54:07 AM »
I'm still waiting for a real lawyer to weigh in on this.  I know there are a couple here.  Forgive me but the minute you preface your words with "I'm not a lawyer but...." it just becomes "In my opinion as someone who watches a lot of TV."

law is not my profession, though I have taken classes in law and I gave as helpful information about this case as possible, it's technically an internet crime and therefore is normally un-prosecutable, though you could sue for bait and switch based on their actions, technically they have amnesty because internet bait and switch is not recognized in the court of law. for best results you should address the issue from the Internet tax law's perspective because then the court will recognize that this is a law suit against a business rather than an internet organization.

as I hinted in my first post the internet is almost completely lawless and unregulated.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #60 on: September 17, 2012, 09:22:39 AM »
as I hinted in my first post the internet is almost completely lawless and unregulated.

As the internet market continues to grow, and more things like this happen, that's going to change.

Enough people call companies on their bullshit- and eventually regulations will be put in place.

Consider a moment the precedence this event could set for other MMOs:
"When the game starts to not do quite as well as we like, promote new things to draw people in.. then pull the plug."

What happens when it's not just MMOs though? Let's just say Steam decides to close it's doors. Adds a bunch of new titles, and runs a huge sale..  and then a week later announces the service will be shutting down.  Or Ultra Violet? or iTunes? Once companies realize they can get away with this shit.. they will take advantage of it.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #61 on: September 17, 2012, 02:35:47 PM »
Here is something that might add a little fuel to the fire. Gamestop is still selling the City of Heroes VIP Starter Kit http://www.gamestop.com/pc/games/city-of-heroes-freedomtm-vip-starter-kit/99614.

Also Amazon has NCSoft 30 day time cards. I am going to try adding one to my new VIP account once it get here.http://www.amazon.com/NCsoft-30-Day-Game-Time-Card-Pc/dp/B000P9IID2/ref=sr_1_7?ie=UTF8&qid=1347893416&sr=8-7&keywords=city+of+heroes
« Last Edit: September 17, 2012, 02:52:41 PM by Mold »

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #62 on: September 17, 2012, 03:37:19 PM »
From a law -student-, here:

I'd just like to note for the people talking about the EULA, that while the EULA is considered a valid 'terms of use' agreement, it is superseded by any actual legal contract.  The purchase of a service for money constitutes a legal contract.  While NCsoft has the right to cancel their service at any time, if you have paid for twelve months and only receive six they are effectively in breach of contract and may be required by law to remedy the breach.

Keep in mind, breach-of-contract and partial breach penalties are calculated on the concept of returning the involved parties to their standing prior to the harm caused by the breach.  Harm will be calculated by prorating the unfulfilled amount of the contract.

Fraud has a whole different set of rules, and is much harder to prove.  My coursework hasn't done a lot on that topic yet.

Tarelgeth is exactly right here.  The "easy" remedy in this situation is to try to enforce the contract, not to start an action for fraud.

As Tarelgeth noted and as explained in the Legal Considerations thread, when a party fails to comply with the terms of a contract, that party has breached the contract, and the other party may seek damages (i.e., money).  In contract law, damages are most often calculated based on the positions the parties would be in if the contract had been performed.  This doesn't mean that you get the additional months for which you've prepaid for City of Heroes.  They need not keep the servers on just because a court rules that they've breached the contract.  Rather, you get the value of those months.  In other words, as people in this thread have pointed out, you get a refund.  (NCSoft might also try to pay you in an equivalent money value of time on their other games.)

Keep in mind, though, that all that depends on the player's convincing a court that there's been a breach in the first place.  In a situation like this, NCSoft would use documents like the EULA as evidence of the contract's terms, even if the court is disinclined to treat the EULA itself as "the contract."  Translation: Don't read any of this to suggestion that going out and suing NCSoft would be easy.

Note that parties, when creating a contract, can try to control the damages in advance.  Oftentimes, you'll see things along the lines of "the parties agree, in case of a breach of this contract, that liquidated damages of $50 will be paid."  The phrase I used there means that, in our NCSoft example, when NCSoft cancels service and the player is entitled to the remaining time, NCSoft just pays the player $50 rather than the full value of the unused subscription time.  In our case, this kind of term isn't as likely because the value of a subscription is pretty low, by international business standards.

Where we might see a term like this is something along the lines of, "In the event of a breach, the subscriber will be compensated for the full, unused value of the subscription, in property to be determined by NCSoft."  Yes, parties can agree to something like that.  Such a term is what would enable NCSoft to compensate a player in time on their other games, rather than money, without potentially running afoul of a judge who doesn't like the contract.

So, all in all, if NCSoft weren't offering refunds, contract law would provide an avenue for obtaining them.  But it is providing refunds.  Anglo-American-style contract law is one of the best-known bodies of law in the world.  Every U.S. law student studies it.  So, I suspect, does every in-house attorney drafting contracts for the Western market.  Thus, NCSoft knows enough not to get painted into the corner of contract.

Notice that this reasoning appears to apply just as much to Ms. Lackey's five-year "lifetime" subscription as it does to any ordinary player's subscription.  The specific terms of the contract might vary, though; look for a clause describing what happens in the event of cessation of service.  Obviously, none of us around here can say much that's helpful; this sounds like a matter for a private attorney.

All of this is totally separate from fraud.  And that's separate from class action issues.  I'll have more to say on those topics later today, I hope.

And, once again, the above and all my other posts around here (and, I imagine, all the other lawyers' and law students') should not be taken as legal advice!  Soundtrack's and Toast's posts earlier are right on the money.  If you want to sue NCSoft, at some point, you need to consult a reputable attorney in real life.
« Last Edit: September 17, 2012, 03:48:28 PM by Olantern »

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #63 on: September 17, 2012, 03:43:07 PM »
Exactly...


Taking advice from someone who claims to be a legal expert/lawyer/etc regarding a legal issue over an internet forum - NOT a good idea.


If you are SERIOUSLY considering small claims etc - go see a real lawyer or at least call one.


No matter what though - I am urging people to contact their financial institution/credit card company soon as there are explicit time frames for disputing charges.

Also really good points, in my opinion.  All anyone can do on a forum like this is provide commentary.  And, like the astrology column in your local paper, it's "for entertainment purposes only."  Listen to the Toast.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #64 on: September 17, 2012, 03:44:51 PM »
I just read your larger post, Olantern, and well put together. Thanks for lending your opinion on things. :)
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #65 on: September 17, 2012, 03:55:51 PM »
While there is no harm in looking at some options there, it's probably premature to spin up a suit untill NCSoft reveals their hand.

But it might also be useful to let the media know that it's a possibility - it could help to increase the pressure on NCSoft.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #66 on: September 17, 2012, 04:34:49 PM »
But it might also be useful to let the media know that it's a possibility - it could help to increase the pressure on NCSoft.

Or come across as a threat. We're playing a delicate balance here, we can't go too far in either direction. We can't be too soft, but we can't go too hard either.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #67 on: September 17, 2012, 04:38:46 PM »
Nah not angry...frustrated. Tired of people thinking they are OWED anything. the only people OWED anything are those with long term subs.

Disclaimer: I am not a lawyer, but I have seen a few episodes of Law & Order and I participated in a mock trial in eighth grade history.  Please put exactly as much weight into the following comments as those qualifications merit.

When I spent $100 to buy a block of Paragon Points, I did so based on the hype of, for example, Issue 24 being released, the post-apocalyptic costumes being shown off, talk of upcoming powersets and additions to existing powersets, etc.  While I'm sure that "Hey, we're working on this new costume!" wouldn't be considered as a legally binding agreement that such a costume would be made available, I do think that a case might be made that a reasonable person would expect the game to be around longer than three months based on how it was being promoted, which would encourage people to spend money that they wouldn't normally spend absent such promotion, especially if they were informed that the virtual items they were purchasing would be gone after November.

And again, I'm not blaming Paragon Studios; they had good reason to think the game would be around longer than three months, presumably based on things like financial data showing that the game was going well, employment contracts, etc.  In a very real way, they were being used as a middleman, misled into hyping things for sale that NCsoft knew would either never be released or would be useless after November.

Also, I am not in favor of filing lawsuits just for harassment.  I'm pretty sure that is itself illegal.  However, if there are enough people out there seeking legal recourse who genuinely feel that they were misled and spent money they wouldn't have spent based on what NCsoft knew and did not tell them, and if enough people demand refunds for time paid past November instead of simply letting NCsoft keep the money, then regardless of whether or not they end up winning cases, the hassle and cost of having to defend them might encourage NCsoft to sell the property--including legal liabilities that go along with it--to someone else.

As I've posted before, though, all of this is hypothetical.  I'm not encouraging people to do this, nor am I encouraging people against doing this.  Don't count on a Call to Action: Sue NCsoft! post anytime soon.  If you go that route, it's something you have to decide for yourself--you're on your own until and unless it reaches class action status, and even if it does, we'll probably report on it and newsworthy, but for a multitude of reasons, probably won't actively participate in it.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #68 on: September 17, 2012, 05:38:40 PM »
I just want to reiterate, in case people didn't see it before, that someone on the official forums has already gotten a MONETARY refund. It was in the troll thread where the OP falsely claimed that players would get alternate-game time or points. Note that this GM comment never happened. The OP was trolling. She thinks she was doing the player base a favor to "rally us together". By trolling us.

YOU WILL GET REFUNDS.

I edited the OP to add this comment.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #69 on: September 17, 2012, 05:46:57 PM »
If they do refunds, it makes pretty much all of  the talk of legal recourse moot, unless someone somehow can make a IP case stick on AE or charicter content, which would be very unlikely.
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #70 on: September 17, 2012, 06:44:37 PM »
In a situation like this, NCSoft would use documents like the EULA as evidence of the contract's terms, even if the court is disinclined to treat the EULA itself as "the contract."

City of Heroes never had a EULA. At a time like this, I feel it's especially important to make it clear to everyone that people have been using the wrong term for that thing we clicked "I Agree" to every time we played the game. The user agreement defines a code of conduct; it is not in any way a legally-binding document, as no license was ever involved in regards to the customer. That said, the terms of the user agreement are largely useless to determine any breach of "the contract," since it's not a contract in the first place.

We gave our money to NCsoft. It's been stated by the company as well as Paragon Studios community managers that all of that money in its entirety, from a legal and business standpoint, was part of a transaction to purchase a service. The service in question, as NCsoft clearly points out at the time of purchase, is access to the game and its features for the predetermined length of time. Prior to Freedom, we paid to play. After Freedom, we paid for the perks of VIP status. The potential legal trouble for NCsoft at this point is that the service which was purchased, for many people, is being taken away before the purchased amount of time has elapsed.

Keep your eyes open for what NCsoft will do in this situation. They've already offered to transfer the unused time to their other games, but if that's not what we want, we need to let them know that. It's entirely possible that if we don't stop them from running off with our money, then no one will stop them from running off with our money. There's no global agency of Business Police out there making sure everyone is treated fairly, and hopefully NCsoft will offer monetary refunds before they have a big mess on their hands.
« Last Edit: September 17, 2012, 11:00:39 PM by TonyV »

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #71 on: September 17, 2012, 08:47:43 PM »
Also, since they clearly decided this ahead of time, they SHOULD have had said refund policy ready to go out to the subscribers IMMEDIALY.  Not leave us hanging for this long.

Not wait till the last minute and MAYBe say "oh, have credit for something you dont want"

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #72 on: September 17, 2012, 11:40:35 PM »
Keep your eyes open for what NCsoft will do in this situation. They've already offered to transfer the unused time to their other games.

I think that particular bit was the troll post that Zwillinger removed after verifying with NCSoft that the person who was being quoted didn't actually exist, and that the entire message was fabricated.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #73 on: September 18, 2012, 06:34:01 AM »
I think that particular bit was the troll post that Zwillinger removed after verifying with NCSoft that the person who was being quoted didn't actually exist, and that the entire message was fabricated.
I've only posted it twice in this thread, with ginormous unmissable text. *frustrated sigh*
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #74 on: September 18, 2012, 06:36:48 AM »
I've only posted it twice in this thread, with ginormous unmissable text. *frustrated sigh*
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #75 on: September 18, 2012, 03:50:03 PM »
I (finally!) posted my thoughts about the fraud claim.  I stuck it in the Legal Considerations thread, since it's an awfully long post.  I'm hoping to add some discussion of what class actions are in there, too, when I get a chance.

To summarize for people who don't want to read that thread, I concluded that there probably was not fraud because not all of the elements, a legal checklist of necessary things, either weren't present or were too speculative to prove.  But, for the umpteenth time, if you believe you have been the victim of fraud and want to sue, consult a reputable attorney, preferably face to face.

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #76 on: September 18, 2012, 08:35:20 PM »
Not to be a Puppy Upper, and my strong disclaimer is that I am most emphatically not a lawyer, all of this is hypothetical, and I am really hoping that it doesn't come to that, but there are a few things that I think makes this case unique.

First, as was pointed out in the top post, NCsoft was actively taking money from people for a service and virtual items that they knew would be worthless in three months.  Yes, the Terms of Service say that they have the right to cancel the service at any time, but there's just something skeevy about taking money from people--in some cases, $100+--for something that you know is going to be completely worthless after November.  It's a little like selling someone a car "AS IS" that you know has a bum engine in it that will give out in three months and not disclosing that fact.  Based on financial reports, the active development team, posts regarding future content (which I am not blaming Paragon Studios for--they were misled as well), it was a reasonable expectation for the people plopping down money that the service would last more than three months. And if, for example, I had just re-upped for a year or plopped down $100 in the store for a block of Paragon points, I would feel strongly that I'd been ripped off--effectively sold a car with a bum engine that NCsoft knew would stop working November 30 without that being disclosed.

Second, while class action lawsuits rarely recompense the class in any meaningful manner, they are expensive to defend.  If there were such a lawsuit, it would cost NCsoft a lot of money and other resources, money and resources they undoubtedly don't want to spend.  Even if there were no class action lawsuit but people started filing mass numbers of small claims cases all around the United States, it would cost even more money and other resources.  My point is that even if there is little to nothing for any individual person to gain from doing this, the sheer hassle of it might entice NCsoft to seek to transfer the property--including any potential legal liability--to someone else so that they don't have to deal with it.  (And if it happens to be someone who keeps the game up and running, it would be highly likely that the legal liability goes away since the service will remain intact.)

Having said all of that, while I understand how you feel, I'm not suggesting any specific course of action one way or another.  And I must reiterate, I am not a lawyer.  If you want to follow this course of action, I'd suggest retaining the services of one.  If someone reading this is a lawyer, under the understanding that you're not providing legal advice, feel free to chime in.

I have been a player since April 2004 and in the recent years paid annually for the bit of savings available doing that.
I paid for my next annual installment in May 2012.  If the service ends in November 2012, I have paid for 6 months of unavailable service.

I called my credit card company concerning services purchased but not rendered, and discussed the situation with their fraud department.
They said to wait until the service ends and then I could possibly get a pro-rated refund, and they logged my call within their system for future reference.

Meanwhile, I contacted NCSoft about receiving 6 months of funds back and this is what they replied via email to me (some content cut to protect my identity ;D

"Regarding your request for compensation, what I would like for you to do is keep this reply as a record of our conversation. Typically, when a game has run its full course and the decision has been made to end services and support for the game, a compensation package is rolled out to all those players who qualify or have remaining paid game time, point, or currency balances left on their game account. In the past, these packages have been very generous and have sometimes included complementary copies of other NCsoft games, depending on how much time or currency was left on the account in question.

Since the compensation package for City of Heroes has not yet been finalized, and I do not yet have authorization of offer compensation for the closure of City of Heroes, I would very much like for you to wait to see what the official offer will include. If what is offered is not up to your satisfaction, please reply to this message and we can address your request at that time."

1. I am not interested in a compensation package - I want my money back.
2. I have no wish to receive any "complementary copies of other NCSoft games".
3. NCSoft, with their belligerent actions, has lost me as a future customer.
4. COH is the only online game I've ever played, or have ever been interested in playing.

We'll see what happens when November arrives...

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #77 on: September 18, 2012, 09:49:25 PM »
I also posted this in the "News?" thread. From the official forums:

 http://boards.cityofheroes.com/showthread.php?t=297472
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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #78 on: September 19, 2012, 03:55:29 AM »
Did eabrace say something?  I wasn't paying attention, what with all the searching on ambulancechaser.com and all.   :roll:
I wouldn't use the word "replace," but there's no word for "take over for you and make everything better almost immediately," so we just say "replace."

Burnt Toast

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #79 on: September 19, 2012, 04:10:37 AM »

Luckily you won't have to wait until November now....and should receive back all your unused pre-paid time in cash :)


So Yay :)



I have been a player since April 2004 and in the recent years paid annually for the bit of savings available doing that.
I paid for my next annual installment in May 2012.  If the service ends in November 2012, I have paid for 6 months of unavailable service.

I called my credit card company concerning services purchased but not rendered, and discussed the situation with their fraud department.
They said to wait until the service ends and then I could possibly get a pro-rated refund, and they logged my call within their system for future reference.

Meanwhile, I contacted NCSoft about receiving 6 months of funds back and this is what they replied via email to me (some content cut to protect my identity ;D

"Regarding your request for compensation, what I would like for you to do is keep this reply as a record of our conversation. Typically, when a game has run its full course and the decision has been made to end services and support for the game, a compensation package is rolled out to all those players who qualify or have remaining paid game time, point, or currency balances left on their game account. In the past, these packages have been very generous and have sometimes included complementary copies of other NCsoft games, depending on how much time or currency was left on the account in question.

Since the compensation package for City of Heroes has not yet been finalized, and I do not yet have authorization of offer compensation for the closure of City of Heroes, I would very much like for you to wait to see what the official offer will include. If what is offered is not up to your satisfaction, please reply to this message and we can address your request at that time."

1. I am not interested in a compensation package - I want my money back.
2. I have no wish to receive any "complementary copies of other NCSoft games".
3. NCSoft, with their belligerent actions, has lost me as a future customer.
4. COH is the only online game I've ever played, or have ever been interested in playing.

We'll see what happens when November arrives...


dwturducken

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #80 on: September 19, 2012, 04:45:03 AM »
Luckily you won't have to wait until November now....and should receive back all your unused pre-paid time in cash :)


So Yay :)

Yep

<dusts off hands>

Guess that closes the door on this thread!
I wouldn't use the word "replace," but there's no word for "take over for you and make everything better almost immediately," so we just say "replace."

StarRanger4

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #81 on: September 19, 2012, 07:45:32 AM »
Yep

<dusts off hands>

Guess that closes the door on this thread!

Sort of.  And I find it really interesting that they'd not worked any of this out beforehand.  I mean, this should have been worked out in between when the executives made their decision and when it was announced and implemented.  Personally I find it really interesting that this only happened after we seriously started talking about "is this legally actionable"...  Remember what Olantern said about avoiding litagation in the first place in his discourses about the legal aspects?  Somehow I feel this is related.



So, they've done somethng they've never done before.  Theyv'e blinked.  So, what do we do next?

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #82 on: September 19, 2012, 08:51:49 AM »
Sort of.  And I find it really interesting that they'd not worked any of this out beforehand.  I mean, this should have been worked out in between when the executives made their decision and when it was announced and implemented.  Personally I find it really interesting that this only happened after we seriously started talking about "is this legally actionable"...  Remember what Olantern said about avoiding litagation in the first place in his discourses about the legal aspects?  Somehow I feel this is related.



So, they've done somethng they've never done before.  Theyv'e blinked.  So, what do we do next?

Check out my "Light A Fire" threads.
I will go down with this ship.  I won't put my hands up in surrender.  There will be no white flag above my door.  I'm in love, and always will be.  Dido

Terrafan

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #83 on: September 20, 2012, 01:41:14 AM »
Sort of.  And I find it really interesting that they'd not worked any of this out beforehand.  I mean, this should have been worked out in between when the executives made their decision and when it was announced and implemented.  Personally I find it really interesting that this only happened after we seriously started talking about "is this legally actionable"...  Remember what Olantern said about avoiding litagation in the first place in his discourses about the legal aspects?  Somehow I feel this is related.



So, they've done somethng they've never done before.  Theyv'e blinked.  So, what do we do next?

NCsoft DID also offer refunds AS WELL as time for other games when they shuttered TR.  This is not totally unprecedented.   Someone in the discussion thread of this announcement on the COH forums posted the TR shutdown letter, and in one part it does specifically mention refunds. 

StarRanger4

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #84 on: September 20, 2012, 01:44:28 AM »
NCsoft DID also offer refunds AS WELL as time for other games when they shuttered TR.  This is not totally unprecedented.   Someone in the discussion thread of this announcement on the COH forums posted the TR shutdown letter, and in one part it does specifically mention refunds.

Okay.  But if they had an already established policy, why wasn't it ready to go as soon as they announced this to the world?  why make us wait 3 weeks?

Terrafan

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Re: "Bait and Switch"/Fraud Class Action Suit?
« Reply #85 on: September 20, 2012, 01:49:35 AM »
That I do not know, and I'm not willing to speculate.

Perhaps their legal team still had to look over the release document.  Perhaps our protests did make them take pause.  Perhaps they really and truly care SO little for us that coordinating the shutdown announcement and this one was of absolutely no concern.  (wouldn't surprise me if the payment division wasn't involved in the decision, and thus..wouldn't have known either).

There's no factual evidence to draw a conclusion from.