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Mass Effect 3 Ending: Legal Experts Weigh In On "Deceptive Advertising"

Better Business Bureau claims blown out of proportion say attorneys

No matter how good a particular video game might be, some gamers will always find something to complain or have misgivings about; it's been a reality of the business practically since video games have been in existence. However, since the average gamer is now older and more aware of his/her rights as a consumer, repercussions can end up being much greater than just angry remarks on a message board.

Take, for example, the recent comments put forth by the Better Business Bureau (BBB) in the US, which fueled by angry consumers, recently downgraded Capcom from an "A+" to a "B" rating. This stemmed from several complaints relating to Street Fighter X Tekken's on-disc DLC. More prominently, the BBB has raised the possibility that Electronic Arts and BioWare misled consumers with the advertising for Mass Effect 3.

"Consider this: If you had purchased a game for $59.99... and were told that you had complete control over the game's outcome by the choices your character made and then actually had no control over the game's outcome, wouldn't you be disappointed? The issue at stake here is, did BioWare falsely advertise? Technically, yes, they did," said Marjorie Stephens, Director of Communications at BBB of Northern Indiana.

Given how lawsuit happy so many Americans tend to be, we posited a question to a few legal experts: is there actually any legal ground for consumers in a class-action lawsuit or are players and the BBB just blowing this whole scenario out of proportion? The response was almost universally towards the latter.

"In many situations, our litigious nature is just a waste of everybody's time"

Patrick Sweeney

"I would tend to fall on the 'blowing things out of proportion' side of the line," said Mark Methenitis, Author and Editor-in-Chief at Law of the Game. "While there may be enough for a false advertising kind of suit here, even a class action one, neither case seems that egregious to me. For the Capcom one, unless Capcom had advertised those characters as being free, it's almost a non-issue entirely. All they're really doing is saving some bandwidth for the DLC."

"Mass Effect is a better case, since the outcome wasn't dictated by choice to the effect suggested in interviews, but interviews aren't generally treated as true ads. Moreover, this is the first case I can think of where 'I don't like the ending' has led to this kind of uproar. How many other games and movies have had bad endings without this kind of backlash? I could name dozens."

"The claim is based on deceptive business practices, where the vendor lies to the consumer and gives a different product than promised," noted analyst and lawyer Michael Pachter, Managing Director of Equity Research for Wedbush Securities. "That means dog meat instead of beef, not rare instead of medium rare. I agree that 'only' 3 endings didn't give gamers what some expected (unlimited permutations based on player choice), and agree that it was disappointing to have so few choices at the end, but the 'damage' here is at most a refund for those who were dissatisfied, not any massive government action against EA/BioWare."

"I am not sure that I even accept the premise of the complaint: as far as I know, the company said player choices would influence the outcome, but I don't think there was a guarantee of limitless outcomes. Rather, the player was offered a choice of three ending paths," Pachter continued. "Arguably, this could be construed to mean player choice affected the outcome. I suppose there may have been a comment from someone at BioWare that 'every' choice would affect the outcome, but it would be difficult to prove that furnished the sole basis for the purchase. Curiously, NO reviewer that I am aware of pointed out the lack of ending choices. That means this is just one more thing blown out of proportion by the gaming press."

To Patrick Sweeney, head of Reed Smith's Video Game Practice and a member of the Video Game Bar Association's board, it's less about legalities and more about customer service.

"It's primarily an advertising and marketing issue," said Sweeney. "Game companies just need to be careful in what they're saying, just like with any product. Those parameters are pretty well established - if something isn't there as was advertised, the company will have to answer for it. If it's as simple as a decision at the end of the game and people are unhappy, that's really more of a customer service issue. But it depends on the particulars of what was actually said and what the final product actually is."

After we mentioned that gamers are older on average now and are more legally savvy (evidenced by a recent class action lawsuit against GameStop that settled for the plaintiff) Sweeney said, "Leaving aside my legal opinion and purely on a personal level, if you're unhappy with a game you purchased, is a class action lawsuit the way to go? Can't you contact customer service, ask for a refund or try to trade it and sell it?"

"In many situations, our litigious nature is just a waste of everybody's time. There are activities that are egregious and that may require a legal course of action, but in some cases, it's just an opportunity for some consumers to be be heard."

Shawn Foust, Vice President of Business Development & General Counsel at PlayMesh, generally concurred with this sentiment, saying, "People are upset, I can empathize. But let's be honest: each of the Mass Effects incorporated a number of interesting forks in the road based upon player decisions. A lawsuit seems like a tremendous waste of time and resources. Believe me, I know. I'm a lawyer."

On the plus side, the fact that so many gamers are getting up in arms about the ending at least shows a maturation of the video games medium, Arkadium's Matt Plotecher argued in a recent editorial.

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Latest comments (11)

Meelad Sadat [a]list daily editorial director, Ayzenberg Group9 years ago
"In many situations, our litigious nature is just a waste of everybody's time." Thanks for summing it up, Patrick.
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James Brightman Editor, North America, GamesIndustry.biz9 years ago
@ Meelad, yeah It amazes me sometimes how people want to sue companies for every little thing in America.
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Ryan Leonski Indie Dev 9 years ago
I seriously hope that if this does go to court for a class action suit it loses. The implications of it winning means that any source of entertainment is up for legal action if a group of people do not like or agree with the material. For example if George Martin decides that the last book of A Song of Ice and Fire is about how everybody turns into robots and starts to techno dance should he be under legal threat just because its his artistic vision. Even if that artistic vision is absolutely ridiculous and doesn't bend to the rules already established with previous works within a series doesn't mean that they are obligated to hold to what the fans believe should be done with a piece.
However even though legally not obligated to give fans exactly what they want that doesn't mean that the author should completely dismiss their complaints. I just do not believe that consumers should be getting so upset that they would take legal actions about an ending they did not like. What about the 100 hours of enjoyment they had with the game? What is that worth?

Now I do believe that this situation is also somewhat good for the games industry seeing as consumers are expecting more from games in terms of story telling and artistic visions. I hope everyone learns a lesson from the situation at hand.
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Show all comments (11)
Paolo Giunti Localisation Project Manager, GlobaLoc GmbH9 years ago
While the disappointment over the ending is what brought ME3 to the attention of the BBB, the legal action is only in regard to it's advertisement not reflecting the reality. Therefore, the mere fact that users didn't like part of the content doesn't actually apply.

That said, i agree that takign to court is truly excessive. The issue was between Bioware and their fans, and should have been settleded among themselves.
Then again, when thousands of people are involved, it's easy to find among them some idiot that takes things too far.
Do not make the mistake of assuming that all the Retakers are the same. They're actually a very disorganized bunch from a wide demographics. They only share the love for the series and the hate for the last 10 minutes of the game, but then each is pretty much acting on his own.

Anyway, now that the ball is rolling, I do see the possibility of some good coming out even if the class action lawsuit wins. It would get the people tasked with advertising the game to be more cautious and hopefully communicate more with the dev team.
It wouldn't be the first time that i see the marketing department making crazy promises without consulting the developers first (but then it's the developers who have to go trough the trouble of keeping said promises and it's again the devs who get the blame if they can't).

....or maybe i'm just being too optimistic here.

I agree that 'only' 3 endings didn't give gamers what some expected
Heh, I'd argue that if there were only 3 endings but offering actual variety among them, no plotholes and no deus-ex-machina that made most players feel helpless, none of this s**tstorm would have happened.
If i'm not wrong, it's in the ABC of Game Design to "reward the players for their effort". It's in this point that the infamous ending totally failed.

Edited 4 times. Last edit by Paolo Giunti on 20th April 2012 10:41pm

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Lewis Pulsipher Game Designer, Author, Teacher 9 years ago
If people didn't flock to new games like lemmings immediately the game becomes available, many of the disappointed would have heard about the lack of endings before buying. Then they could have chosen not to buy the game, if this was so important.

Sensible consumers ordinarily research the quality something before buying it.

The idea of a lawsuit for this is ludicrous.
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Paolo Giunti Localisation Project Manager, GlobaLoc GmbH9 years ago
Sorry, I agree that the idea of a lawsuit is ludicrous, but yours doesn't seem to be the right kind of argument, here.

1) In regard of false advertisement in general, the fact that it fooled 10 instead of 10000, just because most people cautiosly waited for the feedback of those who played the game before making their own purchase... well, doesn't actually make the advertisement any less false. So, theoretically, the problem would still exist, even if you got a workaround to limit the damage.

2) Even by doing your reasearch, you'd just want to dig out infromations regarding graphics, gaemplay... you read a few reviews to see if the game is well polished or if there's swarms of bugs all over the place. But you definitely stay well away from any spoiler (which means learning any detail about the ending). On that front, you generally just have to trust the authors. And when, like in this specific case, they did an excellent job for 100+ hours of the series, it's hard to believe they could have screwed up big time in the last 10 minutes.
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Ryan Leonski Indie Dev 9 years ago

I'm scared for Peter Molyneux then.
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Paolo Giunti Localisation Project Manager, GlobaLoc GmbH9 years ago
That was brilliant!

Good one. ^^
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Rick Lopez Illustrator, Graphic Designer 9 years ago
Look i truly consider the game to be a masterpiece, those 100 hours were great, but I was dissapointed by the ending. It offered no closure, it was kept too vague leaving much up to speculation. If the indoctrination theory is true then the ending is good as it is and only needs to be explained better or better written. And when you got so many fans screaming for closure, as the creator I feel compelled to respond in the best way possible, because this only shows how much they value my creation. So as the creator you can choose to be a bastard about it or try to meet half way. because quite frankly consumers had high expectations for the conclusion of the game, and as the creator the right thing to do would be to address this to the fan base, who are just as passionate or if not more passionate of the creation then the creator is.

However the fans are not entitled to anything nore should they be given power to dictate the artistic vision of the creator. It goes against the right people have of freedom of expression and it is not right for others to dictate an artist creaytive vision or act against a persons integrity.

But sometimes, as the creator its good to listen to others opinions about your own work. cause other people will probably see things that you as the creator do not see. i think its healthy for a creator to be open to other peoples perspective of there own work, and if appropriate make changes based on what the creator finds appropriate.

If i were Bioware, I would do something. The Mass effect Story is truly epic and it really does need a better ending and loyal fans need closure. And I think closure is not an unreasonable request. I felt the ending to be incomplete, vague and much left to speculation. Not the type of fitting end the series deserves.

Its wrong to force them, but Im hoping and praying Bioware responds to fans in a satisfactory way and that "WE" can get a truely fitting end, to one of the greatest science fiction stories of all time.
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Sarah Carter Studying MSc Computer Games Technology, University of Abertay Dundee9 years ago
The quote which I've seen people rallying behind as an example of this false advertising was something Casey Hudson, Project Director on Mass Effect 3, said, perhaps unwisely in hindsight. It was in an interview with Phil Kollar from Game Informer.
"Yeah, and I'd say much more so, because we have the ability to build the endings out in a way that we don't have to worry about eventually tying them back together somewhere. This story arc is coming to an end with this game. That means the endings can be a lot more different. At this point we're taking into account so many decisions that you've made as a player and reflecting a lot of that stuff. It's not even in any way like the traditional game endings, where you can say how many endings there are or whether you got ending A, B, or C... The endings have a lot more sophistication and variety in them."
When you compare this to the ending, which has quite clearly got a solid A, B, or C ending (as the other consequences of your previous choices are not shown on screen, only implied), then the claim of false advertising begins to start to hold water.

I can't see the fans, no matter how upset, actually putting forward a class action lawsuit. They've been told that Bioware is working on a free closure DLC to fix the problems so I suspect 99% of them are going to wait to see what it's like, not push forward with expensive and time-consuming legal action.

I think it's interesting that there is so much speculative theorising about it in the legal world. I do hope that these sorts of articles aren't taken as "the fans have put forth a class action lawsuit" or "Bioware is going down for false advertising", when it is all still just speculation, however.

Edited 1 times. Last edit by Sarah Carter on 24th April 2012 10:07am

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Adam Jordan Community Management/Moderation 9 years ago
And this is where I seem to zone out and let the legal people fight amongst themselves.

Sorry but as a gamer and an avid Mass Effect fan, while disappointed in the endings I really couldn't care less about anything occurring around the last 10 minutes.

I bought the games because I enjoyed them, for me playing the games wasn't about the endings, it was the journey. Sure when you compare Mass Effect with Knights of the Old Republic, you don't have that freedom from before but that doesn't stop me from enjoying the game.

In fact I am actually replaying each game, starting from 1 and ending at 3 and choosing all the options I never chose before. I know it won't change much at the end or if I wanted to I could watch the sequences on Youtube but I didn't buy the games to change the ending or to watch those sequences on Youtube.

That might be my way of thinking, I don't know but sometimes I do think people over the end of the day it is a game ending, I honestly cannot think of anyone ever doing that 10+ years ago, especially over an ending of the game.
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