Origin Systems and its parent company Electronic Arts have been named as defendants in a class action lawsuit filed by customers who bought Ultima Online.
Five customers are named as plaintiffs in the case: Carlos Royal, Ken Hinther, Allen Bennett, Shane Benson, and Theodore Allan. They are being represented by Bauer and Schultz, a law firm located in Chula Vista, CA.
The heart of the complaint alleges:
This suit would seem to be a first for the computer gaming industry. Shareholder class action lawsuits have in the past been brought against game companies, most recently against GT Interactive, but consumer class action suits are terra incognita for this industry.
"It's unprecedented," says George Schultz, the attorney representing the plaintiffs, as he is not aware of any other suit being filed against a computer game company by consumers. (Nor are we.) "But [computer gaming] is a billion-dollar industry that is really falling into disfavor with a lot of consumers," he says.
But Schultz stresses that the game design of Ultima Online is not what's at issue here.
"We're not trying to tell anybody how to design a good game or a bad game," Schultz tells us. "Any developer has a right to make a good game or bad game. We're not getting into whether there should be player killing or not player-killing.
"What it's about is holding Origin and EA to the promises they made on the box, in their advertising, and the manual. It's about the misrepresentations they've made.
"A big problem with the gaming industry is that they think there is some special rules that apply only to them," says Schultz.
He cites as an example the fact that game companies are aware of many bugs and other problems during the beta test stage. In fact, these problems are even talked about publicly by the game's beta-testers, yet the games still go to market with these problems still in them, often undisclosed by box copy, Schultz says.
"Some huge problems exist, and if you don't disclose that, there's a word for that, and the word is fraud," says Schultz.
The plaintiffs echo those sentiments.
Shane Benson, one of those taking Origin to court, says that the reason he got involved in this suit was a growing frustration with Ultima Online, and particularly with Origin's explanations for the crashed servers.
Benson and a friend of his, Allan Bennett (also a plaintiff in the suit) both work for an Internet service provider (ISP), and he says they were able to determine that the problems they encountered were not on their end. Instead, they felt that it was Origin's authentication server, a computer called 'Scooby' used to validate user passwords, that was frequently crashing.
"We can play off a T-1," he tells PC Gamer, "We could do traceroutes and we could see it was their servers that were at fault. They were telling us it was our ISP's problem, not knowing we worked for an ISP."
Increasingly frustrated with the explanations he was getting, Benson kept calling, trying to get through to someone in charge.
"They would give us the runaround in tech support," he says. "It was just a constant lie." Finally, it got to the point where whenever he or Bennett called Origin's tech support, they were disconnected.
"They also promised unlimited call backs," Benson says. "But they didn't want to help us, they just said, 'Why don't you return the game?' "
So why didn't Benson take that advice, take the game back? Why not just give up?
"I love the game," he says. "I play it a lot."
Still, he does note that many of his friends within the game have quit, and lately he has been considering quitting as well. "It's really lost a lot of its flavor," he says.
As for what Benson expects of the lawsuit, he says he is not looking for money. He just wants his time to be credited. But does Benson think an Internet RPG like Ultima Online is possible, given latency, bandwidth and other technical considerations?
"I think it is possible," he says. "I'm looking forward to Everquest. I just think Origin has some bad code and they don't want to change it."
The way a consumer class action law suit works is this: the suit represents at once the complaints of consumers of a particular product or service, who if they filed individually, would all be filing in small claims court. In other words, it represents many people who say they were injured in a minor way by one particular company's actions.
Though dissatisfied gamers frequently gripe online, even threatening lawsuits of one kind or another, this is the first instance we're aware of where such complaints have actually resulted in a lawsuit. How this came about is unique, since the lawyer involved (George Schultz) is also a gamer, a player of Ultima Online, and he frequents the news groups where such discussions took place.
"I've been a gamer since Pong, and I probably buy a 100 games a year," Schultz tells PC Gamer. "I bought Ultima Online and participate in the news groups. There was a post going on about the legal effects, people saying someone ought to sue. I jumped on there and said, I'm a gamer, and a lawyer and someone who works in this area of the law, and here's my humble opinion." Schultz says he was then contacted by the five individuals who are named as plaintiffs in the suit, and so the suit went forward.
Since the filing of the suit, Schultz says he has been approached by ten more people who wished to be added as plaintiffs. Schultz also stresses that plaintiffs named in the suit do not receive any more in potential damages than other people who bought the product. Being a plaintiff in a class action lawsuit is strictly voluntary, and confers no special privileges if and when damages are awarded. If the plaintiffs win the suit, anyone who bought Ultima Online and goes through the claims process is eligible for their own share of the award, whatever that amount might be.
Schultz is not being paid by the plaintiffs, nor is he working on contingency (contingency means the lawyer doesn't receive a previously agreed upon percentage of the award unless the suit wins). Instead, Schultz's fee will be determined by the courts, what is known as a "fair fee."
There are statutory provisions in place that award fees to the attorneys who represent the class in a class action lawsuit. Normally they are paid their hourly rate as lawyers, as well as whatever expenses are involved in bringing the case to trial -- taking depositions, filing papers, etc. They can also persuade the judges that if the suit was particularly beneficial to the public, they should be paid "multipliers", in effect, multiplying their fees. But if the suit goes to trial and the plaintiffs lose, the lawyers aren't paid at all.
Will Schultz seek such multipliers?
"Possibly," he says. "It would really depend. A lot of my fees will be determined if I have to battle [the defendants] for five years out of my own pocket," or if the defendants settle right away.
Still, these kinds of consumer class action lawsuits rarely come to trial, according to Imagine's own legal counsel. Usually the company will settle the case out of court. And frequently, the company does not give money back to the consumers, but offers a rebate or a coupon on future products.
Schultz agrees that most of these kinds of suits are settled out of court, though he notes that that is true of 95% of lawsuits. But he says what would constitute an acceptable settlement, howeverr, is not something that can be determined right now.
"In order for me to know, I would have to know how many copies were sold, that kind of thing," he says. Also, a huge factor that will determine any potential settlement (presuming, of course, that Origin is found at fault at all) is whether or not Origin acted incompetently in making its claims, or if it acted knowing full well its claims were not true.
"Negligence or incompetence versus intentional actions has a major impact on the value on what any settlement might be," says Schultz.
"In general what I would like to see is a refund, some free time, and an enforceable promise of fixing some of the technical issues," says Schultz. A full refund is unlikely since the game does in fact actually work most of the time for most people, he says.
Whether or not Origin acted improperly and if they did, to what extent, will most likely come to light during the process now known as 'discovery'.
"Once the lawsuit is filed, as the attorney for the plaintiffs, I now have subpoena power, so I'm entitled to subpoena their memos, their records, take Lord British's deposition, and so on," he says. For example, he'll ask the game designers what they meant when they said that they had "resolved" the lag problems with the game, and what they based those statements on.
This phase won't begin for another four to six weeks. First, the process servers must serve the defendants with the court papers. Thirty days from that date, the depositions and the like would begin, assuming the defendants don't immediately seek a settlement.
A spokesperson for Origin told us that Electronic Arts and Origin both have an official policy of not commenting on pending or current litigation.
The plaintiffs are in the process of making the full text of their suit available online. (Note: this page is still under construction.)
By Jason Bates
-- Jason Bates