Author Topic: "Bait and Switch"/Fraud Class Action Suit?  (Read 16318 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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Dark-Eve

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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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emu265

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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. 

Paindancer

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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."

Riff

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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.

uninventive

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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.





castorcorvus

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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...