Microsoft’s upcoming acquisition of Bethesda Softworks and its parent company ZeniMax Media could be delayed by a new class-action lawsuit over Fallout 4 DLCs. A new report from VentureBeat reveals today that the X-Law Group, which filed a lawsuit against Bethesda for false advertising back in July 2019, has now filed papers to seek more information, and this could potentially block Microsoft’s upcoming acquisition of Bethesda.
The subject of the 2019 lawsuit was the Season Pass for Fallout 4, which failed to include all post-launch content for the action RPG title, contrary to what Bethesda previously promised. The Season Pass for Fallout 4 was announced back in September 2015, two months before the game actually shipped. At the time, Bethesda promised that the Season Pass would include "all of the Fallout 4 DLC we ever do for just $30.”
However, Bethesda raised the price of the Season Pass to $50 in March 2016, and the company later announced a Creation Club including curated content for Fallout 4 and The Elder Scrolls V: Skyrim that wasn’t included for free with Fallout 4’s Season Pass. That’s what led the X-Law Group to file a lawsuit against Bethesda for false advertising in July 2019.
Here’s what Filippo Marchino, attorney at the class-action law firm believes Bethesda did wrong:
“Simply put, Bethesda sold a Season Pass with the understanding that it was going to give the holders of the Season Pass any and all DLC content there was going to be created for the game Fallout 4 on a go-forward basis,” Marchino said in an interview with GamesBeat. “They released a limited amount of DLC. Then they released a second wave of DLC, but decided to call it the Creation Club content and artificially removed it from the definition of DLC. Meaning that they promised people at the onset, we will give you everything we made. And then they reneged on that promise, and they did so to their benefit or the detriment of the plaintiffs. So that’s where they did something wrong. They lied. They took money from gamers, and then they made more money.”
If the X-Law Group wants to prove that the Creation Club is downloadable content that should have been included for free with the Fallout 4 Season Pass, Bethesda apparently did a couple of other mistakes. Indeed, the developer failed to include an End User License Agreement with Fallout 4, and it also failed to clearly detail what type of content would be included in the game’s Season Pass and if some future additional content could be excluded from it.
If the lawsuit from the X-Law Group has yet to be certified as a class-action, Marchino told VentureBeat that Bethesda could avoid being held accountable by transferring its assets to another company or Microsoft before the latter acquires the Bethesda's parent company ZeniMax Media. “What we’re going to try and do is go in and ask a judge to stop the sale between Microsoft and Bethesda to preserve the assets. And it’s known as a motion for preliminary injunction,” Marchino explained.
If the cases goes forward, Bethesda could potentially risk a penalty that exceeds the $7.5 billion that Microsoft will spend to acquire ZeniMax Media. “It’s a multibillion-dollar lawsuit, depending on the factor of the punitive damages,” Marchino said. “Even a conservative multiplier of four or five times the damages would yield multibillions of dollars in damages. We can’t reveal the exact number of people that bought the season pass, but you know that it is a substantial portion of the people that bought the game.”
Both Microsoft and Zenimax Media declined to provide a comment to VentureBeat about this lawsuit. If it does go to trial, it may not happen before 2022, but a settlement could happen before that. “It seems like the easiest thing to do would be to open up the Creation Club to everyone who bought the season pass," said David Hoppe, managing partner at Gamma Law to VentureBear.