Fallout 76 players are getting refunds despite 'no refunds' policy and it's confusing

Bethesda warned us ahead of the release of Fallout 76 that there would likely be some technical hurdles to overcome during the beta, but some major issues have lingered into the final release. While the game has pleasant moments of exploration and cooperation, as said in our review, it's ultimately shallow and laden with bugs. 

Some Fallout 76 players have sought refunds, which isn't unusual immediately following release, when glitches and hardware-specific issues tend to be at their highest. What has been unusual, though, is the inconsistent manner in which refunds have been issued so far. Some players are receiving refunds for digital copies of the game, according to a few threads on Reddit (like this one, or this one), but others, like ZPKane or IAMA_Plumber-AMA, claim that their requests have been refused.

Confusing the issue further is the fact that Bethesda hasn't committed itself to anything beyond what's laid out in the ZeniMax (Bethesda's parent company) terms of service. The TOS states that downloadable content "is not returnable, exchangeable, or refundable" once it has been redeemed, although it leaves the door open a crack for situations "approved by ZeniMax or required by applicable law." And Bethesda does appear to be giving its approval in many cases, but why and under what circumstances is entirely unclear.

On Monday, law firm Migliaccio & Rathod LLP waded into the fray by announcing that it is "investigating Bethesda Game Studios for releasing a heavily-glitched game, Fallout 76, and refusing to issue refunds for PC purchasers of the game who found it to be unplayable because of its technical problems." 

"While minor bugs and glitches are expected with the release of most new games, Fallout 76 launched with a 56GB patch that has proven to be but a starting point for the game’s problems," the firm wrote on its blog. "Gamers who have tried to receive a refund because of the game’s myriad glitches have been unable to do so since they downloaded the game, leaving them to deal with an unplayable experience until patches bring it back to a playable state." 

The company said in an email that it began looking into the matter when it became clear that Fallout 76 was released in a worse state than anyone expected. "We have heard from many consumers who believed they could receive a refund, attempted to do so, and were denied," a rep wrote. "Assuming what they say is true, that is classic consumer fraud." 

"Some typical forms of unfair and deceptive trade practices include the omission of a material fact in connection with a sale such as failing to disclose that a product suffers from a debilitating defect or promising something (like a refund) and not delivering on that promise. Those examples should probably resonate with Fallout 76 users. We are still finalizing our legal strategy but will likely have a formal class action complaint on file in federal court by the end of the week." 

But Richard Hoeg of Hoeg Law told GameDaily.biz that the odds of the threatened lawsuit going anywhere are essentially zero. "In general, software is not sold to users, it is licensed. Because of that, use of any software is subject to the terms of the licensing contract," he explained. Some countries do have more consumer-friendly refund requirements—recall Valve's years-long beef with Australia's Competition and Consumer Commission—but ZeniMax covers that base with the "required by applicable law" statement.   

Migliaccio & Rathod's investigation draws attention to the firm, but it doesn't really mean anything until filings are made. Whether it will be willing to actually launch an action against Bethesda, which has demonstrated in the past that it's happy to step in the ring, is another question entirely. I suspect it will not.

Bethesda so far it seems content to let its TOS speak for its refund policy, which may be legally sufficient but appears contrary to its recent acknowledgment that fans are "frustrated and angry at the state of things right now." Which doesn't necessarily mean that it needs to handle them any differently, but a little clarity could go a long way among dissatisfied players. I've reached out to Bethesda for more information and will update if I receive a reply.