TL;DR: You're not an attorney, and Bungie's trade practices were perfectly aboveboard. [quote]I would like to begin by saying I am a licensed attorney and have spent some of my free time looking into this matter (purely out of anger at Bungie, thanks for the motivation guys!). [/quote] So the first sniff test is your handle--Major Payne89 implies you were born in 1989, which makes you about 25. The typical age of college graduation is 21-23, which means if you went straight from university to law school you've just barely finished. So it's not impossible that you're a "licensed attorney", but if so you're a very inexperienced one. [quote]I want Deej to respond to this, because I feel Bungie would much rather have him defend why this game doesn't fit the bill for false advertisement than Bungie's legal department.[/quote] And here's the second sniff test. Actual attorneys don't post actual legal threats on Internet forums, and they [i]definitely[/i] don't post legal threats and then ask the PR guy to address them. So you're not an attorney, and the first two paragraphs of your post are lies. [quote]I'll start with a brief over view...[/quote] Someone with a couple of years of practice briefs behind them would know that "overview" is a single word. [quote]Federal law set up the Federal Trade Commission and directs it to "prohibit entities from engaging in unfair or deceptive acts or practices in interstate commerce." The letter linked above outlines the standards the commission is to use in fulfillment of its mission. The FTC Policy Statement on Deception states that the Commission analyzes deceptive business practices under the following criteria: There must be a representation, omission or practice that is likely to mislead the consumer. This includes the "use of bait and switch techniques." The practice is examined from the perspective of a reasonable person in the circumstances. If the practice "is directed primarily to a particular group," such as Internet users, "the Commission examines reasonableness from the perspective of that group." The representation, omission or practice must be a material one, i.e., it is likely to affect the consumer's conduct or decision regarding the produce or service... So what does all this legalize mean, exactly?[/quote] It's "legalese", and you're correct that it means is there's a three-pronged test. Unfortunately, you fail to meet the test at any point. [quote]Lets start at the beginning with the hype. Destiny was one of the most hyped games in recent memory.[/quote] Citation needed. [quote]Bungie teased us with trailers, game play footage, and developer interviews. All of these media releases built expectations as to what was in the game.[/quote] "All of these media releases" are also common industry practice for AAA games, as well as analogous entertainment products. Holding Bungie liable on that basis would set a massive precedent, and therefore sets a very high bar for the case you're trying to build. Keep that in mind as we explore the remainder of your claims. [quote]We could see that certain features and mechanics would be in the game. We were explicitly told certain things would be int the game, and that we could expect others. This media frenzy satisfies two prongs of the test outlined above. The practice (of marketing a video game) was directed specifically at a group of people, i.e. video game players.[/quote] That's a tautology: you're saying their marketing was directed specifically at a group largely defined by its interest in the type of good being marketed. If this were held to satisfy the first prong of the test, the test would be meaningless. But even worse, accepting your argument for this prong of the test weakens your claim elsewhere. We proceed: [quote]We as gamers "reasonably relied" on Bungie's claims. They told us- "hey this is what you can do in Destiny, these are the features it will have. Aren't they great." Is it unreasonable for us as a group of people excited to play this game to expect that those features be in said game? Of course not![/quote] This is actually where your argument is strongest, although that's damning with faint praise. The linked Policy Statement on Deception says this: "Certain practices, however, are unlikely to deceive consumers acting reasonably. Thus, the Commission generally will not bring advertising cases based on subjective claims (taste, feel, appearance, smell) or on correctly stated opinion claims if consumers understand the source and limitations of the opinion... The Commission generally will not pursue cases involving obviously exaggerated or puffing representations, i.e., those that the ordinary consumers do not take seriously." A "reasonable person" who has played other video games--that is, the video gamer at which Bungie's marketing push was specifically directed--could be held to understand the source and limitations of that marketing push, namely that the content and gameplay of an early preview may not reflect the final product. In fact, it would be your responsibility as the plaintiff's attorney to demonstrate conclusively that a typical consumer of video games would [i]not[/i] understand that there may be differences between the previewed content and the final product. I doubt that claim would hold up under scrutiny. [quote]Now the big question is are these omissions, i.e. the stuff we were told would be in the game but wasn't, a "material omission"? This means that had you known about the games short comings before it was released would you have bought it?[/quote] Presumably "had you known about the games short comings" means "the game's shortcomings", and I promise I'll stop harping on your errors in spelling and grammar just as soon as you admit that you're lying about your qualifications. Moreover, however, you're underestimating the bar for this test. Again, from the Policy Statement on Deception: "Injury exists if consumers would have chosen differently but for the deception. If different choices are likely, the claim is material, and injury is likely as well. Thus, injury and materiality are different names for the same concept." Accepting for the sake of argument that Bungie's marketing was deceptive, you would need to identify specific aspects of their marketing that were deceptive, forge a causal link between those deceptive practices and the purchase, and then bridge from the purchase to a specific, actionable injury. In other words, you would have to prove (as an example) that people bought the game because they thought they'd be able to swap between two primary weapons. In that case, the injury you've identified is that people own a game where they have three weapon choices instead of four, which falls fairly low on the scale of materiality. Any injury stemming from Bungie's "deceptive" claims has the same problem: you'd have a difficult time convincing a judge or jury to buy the idea that Bungie owes you anything other than what you purchased. [quote]This speaks specifically to the people who relied on Bungie's claims and pre-ordered the game or bought it on the release date. There was no information to rely on at that point other than what Bungie was spewing out about how awesome the game was. Once reviews start to come out, you as a consumer can make a more informed decision about whether the game lives up to the hype. So I can honestly say, had I seen a review about the game I would not have bought it. That, in the legal world is the definition of a "material omission."[/quote] Have I mentioned that you're not an attorney? Because you quite definitely aren't an attorney. You've just torpedoed your entire case by admitting that you could have waited for reviews but didn't. Remember the earlier bits about the "reasonable" consumer? You made a rash purchase based on marketing--that is, opinion claims and puffery--despite the fact that you were in no way compelled to make a pre-release purchase. If you can honestly say "had I seen a review about the game I would not have bought it", you're demonstrating that to the extent an injury exists, it was [i]entirely[/i] avoidable, and you have no claim.