LGJ: Gaming's professional plaintiffs and class actions
Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
The term "professional plaintiff" is thrown out at the idea that some people make their living as someone who partners with an attorney to bring so many lawsuits that their entire livelyhood rests on suing people. Googling the term will bring up dozens of results in many different areas of the law, but a series of events this week made me wonder if the game industry might just be the next target of this kind of behavior. Specifically, the reports of a class action over Xbox Live bannings and reports that the same person who sued Sony over being banned in Resistance is now suing Microsoft over red rings and Nintendo over homebrew.
So how does this professional plaintiff idea work? Speaking extremely generally, to bring a lawsuit, someone has to have standing, that is they suffered an injury and are substantially related to the harm that caused that injury so that they can sue over it. Past allegations of professional plaintiffs have often been related to suits related to the Americans with Disabilities Act, such that one disabled person is suing multiple establishments because they have standing to sue based on the lack of compliance with the Act. I'm sure many readers are thinking, "But how would this work in gaming? There are no gaming statutes that could give gamers standing to sue like that." Well, it's a pretty straightforward answer, actually.
In the case of gamers, it's being part of a discreet group that would all be in similar standing rather than having a statute to sue on. That is, many gamers would be able to sue over game related complaints because of their participation in gaming. In particular, hardcore gamers are likely to own all consoles and be active in all online systems. Therefore, there is a pretty solid group of gamers who could sue Sony, Microsoft, and Nintendo if there were actual harms done against large number of gamers.
And that's where the class action idea ties in. Often, these plaintiffs are the entry point to a class action since class action suits tend to be larger and thereby more profitable, especially to a law firm on a contingency fee basis. If you had a group of gamers who were always sufficient to get a class established, which is likely with the right group of hardcore gamers, you could easily have a number of suits filed on that basis.
But how legitimate are these claims? Just as a casual observer and without reading any of the documentation, the claims seem weak at best. Most of these claims are related to clear violations of the terms of use of the system software, and courts have upheld those terms and licenses over and over again. Furthermore, the monetary damages are often minimal, if not questionable. For example, what is the inability to unlock one character really worth? What is being banned from a service for being abusive really causing in monetary damages? Yes, there can be non-economic damages, but in many cases, a measure of economic damages is required to reach non-economic damages like 'pain and suffering' or 'emotional harm.'
So then why does this even go on? The unfortunate answer is money. This is not to say that all claims are bogus and all plaintiffs are just in it for profit; far from it. There are plenty of legitimate cases in courts at all times. Nor is it to say all plaintiff's lawyers are just in it for the money; this is again far from the case. However, given the deep pockets of some of these game companies and the ongoing huge revenues, the small minority of people with less than genuine motives for lawsuits would likely see the game industry as a potent new target, just as so many other industries have been in the past. And the stories that make the press are really just the tip of the iceberg; those who have connections in game studios can likely hear some humorous and equally sad stories of some of the threatened and filed suits that range from unusual to downright insane.
It's unlikely that we'll be seeing any fewer reports of these kinds of claims pop up on the radar as time goes on. But there's no major need for concern, as these industry giants have substantial legal teams to deal with these kinds of suits. What should concern consumers would be a series of victories against gaming companies. If plaintiffs are successful, then there are two potentially larger problems facing the industry: are companies becoming more dishonest and predatory, and should we be concerned about the continued viability of those studios with substantial legal settlements against them? Of course, I would certainly hope things would never come to that point, but stranger things have happened.
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
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