Author Topic: "Bait and Switch"/Fraud Class Action Suit?  (Read 16437 times)

Zolgar

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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 »

Olantern

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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note for the people talking about the EULA, that while the EULA is considered a valid 'terms of use' agreement, it is superseded by any actual legal contract.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 »

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.

DrakeGrimm

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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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DrakeGrimm

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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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TonyV

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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.

Aggelakis

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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 »

StarRanger4

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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.

Aggelakis

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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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eabrace

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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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Olantern

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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...

Teege

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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."

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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...