Bethesda sued because Fallout 4's all-inclusive Season Pass did not include everything

Bethesda and parent company Zenimax Media are facing a class-action lawsuit concerning the DLC for Fallout 4, which is currently in the discovery phase. The action was launched in 2019 and revolves around Fallout 4's Season Pass, which was sold before the game's release with the following promise: “To reward our most loyal fans, this time we’ll be offering a Season Pass that will get you all of the Fallout 4 DLC we ever do for just $30 [...] Based on what we did for Oblivion, Fallout 3, and Skyrim, we know that it will be worth at least $40, and if we do more, you’ll get it all with the Season Pass.”

That seems pretty unambiguous, and Fallout 4 was released with the Season Pass in 2015 to great commercial success. In 2016 Bethesda increased the price of the Season Pass to $50. And then, in 2017, it announced the launch of the Bethesda Creation Club: “a collection of all-new content for both Fallout 4 and Skyrim. It features new items, abilities, and gameplay created by Bethesda Games Studios and outside development partners including the best community creators. Creation Club content is fully curated and compatible with the main game and official add-ons.”

The Creation Club content was not included in the Fallout 4 Season Pass.

Venturebeat has a comprehensive report in which it speaks to one of the plaintiffs in the case, Jacob Devine, who bought the Season Pass in 2019 for $50 when it was still being advertised as offering "all Fallout 4 DLC for one S.P.E.C.I.A.L. price." The suit traces back to June 2019, when Devine's mother Suzanne filed against Bethesda in Maryland.

“I bought the first season pass, and I was like, cool. That’ll give me all access for the rest of the game, right,” says Jacob Devine. “Then they dropped that new batch. I’ll go check it out, just to find out I had no access at all. And I had to buy another season pass basically to have access to it. I was just disappointed. I felt like I was ripped off.”

The basic argument of the suit is that players like Devine were deceived, and that Bethesda is drawing a distinction between Fallout 4 DLC and Creation Club content that doesn't really exist. Importantly, the majority of the Creation Club content is made in-house by Bethesda: "Most of the Creation Club content is created internally," the company explains on its own site, "some with external partners who have worked on our games, and some by external Creators.” It was described in contemporary interviews by Bethesda's Pete Hines as “almost like mini-DLCs.”

Filippo Marchino is one of the attorneys at the X-Law Group who is bringing the suit. "[The Creation Club] clearly is downloadable content,” Marchino told Venturebeat. “It walks like a duck, quacks like a duck. So it is DLC. They try to slap a sticker on it and call it Creation Club content to remove it from the purview of the people that had already bought the Season Pass. But that’s artificial in nature. And it’s part of the fraud.”

The lawsuit charges Bethesda with a bunch of behaviours including breach of contract, unjust enrichment, deceit or fraud, fraudulent concealment, and negligent misrepresentation, among other things. One wild aspect of it is the damages being sought: “It’s a multibillion-dollar lawsuit," Marchino claims. “Even a conservative multiplier of four or five times the damages would yield multibillions of dollars in damages.”

It's clear that this lawsuit does have elements of a good argument, and Bethesda in some ways is being hoist by its own petard: I didn't buy the Season Pass myself, but it seems reasonable that people who bought it would have expected the Creation Club content to be thrown-in as well. However, the X-Law Group does come across with a slight whiff of ambulance-chasing, and the website dedicated to this class-action suit is unintentionally hilarious. Check out this poor soul.

Whether this all adds up to 'billions' in punitive damages is highly questionable (this calculation seems to based on accepting that the Creation Club's content is worth just under $300 per player who bought the Season Pass). This all of course comes shortly after Microsoft paid $7.5 billion for Zenimax Media late last year, which adds a further complication in terms of which company may be ultimately liable.

It's unclear whether this will go to trial or be settled, though the Maryland Court's recent demands around the original suit show it ordered a settlement conference in December: so the timing of this class-action suit being suddenly publicised may seem suspicious to some. It's certainly one to keep an eye on regardless and a reminder that maybe, possibly, Bethesda should be more careful with its promises.