The US company Migliaccio & Rathod is currently looking for individuals who want to sue Blizzard. The subject of the lawsuit: a modified item in Diablo Immortal with allegations of fraud. MeinMMO spoke with the well-known German lawyer Christian Solmecke about whether such a thing is also possible in Germany.
Why should Blizzard be sued?
- Blizzard operates a shop in Diablo Immortal where various items can be purchased, including upgrades for the notorious legendary gems, but also a gem itself.
- The “Blessing of the Worthy” is available in packages that cost between €30.99 and €119.99 and was among the strongest items for many classes. However, the item was modified afterwards. More specifically: the description was adjusted to match the effect.
- Because, in the view of the lawyers of the US company Migliaccio & Rathod, it is fraud, they now want to sue Blizzard and are looking for people who want to start a class action.
Class actions of this form do not exist in Germany. We therefore spoke with “internet lawyer” Christian Solmecke about how such a lawsuit would actually be classified here.
Who is Christian Solmecke? Solmecke is a specialist in internet and media law and works as a lawyer and partner at the Cologne law firm WBS.LEGAL. Previously, he worked as a journalist, including at the West German Broadcasting Corporation. His portfolio also includes:
- Several books on the topic of online law. The latest is titled “The Pocket Lawyer“
- The founding of IT startups
- Solmecke is also managing director of the German Institute for Communication and Law in the Internet (“DIKRI”) and the cloud-based law firm software Legalvisio.de.
Solmecke became known as the “internet lawyer” through his YouTube channel. He often addresses current topics in the field of internet and gaming and answers questions in his videos. We were also able to ask him some questions on the topic.
The subject of the dispute is, as so often, the legendary gems. In the video, we explain to you what it is all about:
No class actions in Germany, but: “This form of lawsuit will have to come”
MeinMMO: There are no class actions like in the USA in Germany – What alternatives do affected persons have here?
Solmecke: In Germany, there are no class actions (“class action”) similar to the US model. In the USA, it is possible for lawyers to conduct legal proceedings on behalf of many victims, which then is binding for all affected. It does not matter whether one has actively participated in the lawsuit – it is sufficient to belong to the affected group (“class”). One can only actively withdraw to have the matter clarified individually.
However, there has been a so-called model declaratory action in Germany since 2018 due to the diesel scandal. In this case, an authorized model plaintiff (e.g., the consumer protection office) leads the proceedings, the outcome of which is only binding for the victims who have actively joined the proceedings. However, it is only established that a claim exists. The specific amount of compensation must be individually claimed by each person afterwards.
Furthermore, there are now also “legal tech service providers” who let claims from many thousands of affected individuals be assigned to them and then assert them in a bundled manner. They sue other people’s rights in their own name. The result is only binding for all who have assigned their rights.
Finally, the European legislator adopted the so-called Collective Actions Directive at the end of 2020. Accordingly, EU states were to establish a new class action by December 25, 2022, which must come into force 6 months later (June 25, 2023). This is meant to allow concrete claims against companies to be sued. Although a corresponding Consumer Enforcement Act (VDuG) with a new “remedial action” is already under discussion in Germany, it has not yet been passed. Thus, Germany is actually lagging behind. However, it is clear that this form of lawsuit will have to come.
In addition, there are already lawsuits in specific areas of law that resemble class actions, such as model proceedings in the Capital Investors’ Model Proceedings Act (KapMuG) or collective actions in environmental law.
“In German law, the chances are very good”
MeinMMO: Can I join a class action in the USA as a German to receive compensation?
Solmecke: Joining a US class action has been possible in some cases in the past, especially if one was genuinely affected by a case outside the USA. In other cases, however, non-US citizens have been explicitly excluded from such proceedings, for example, with the remark on the lack of enforceability of a decision from a “US class action” through German courts. It always depends on the individual case and primarily concerns US law.
MeinMMO: What are the chances of success for this lawsuit?
Solmecke: As a German lawyer, I can hardly assess the chances of success of the lawsuit according to US law conclusively. However, American law is likely not to be entirely different from German law. And in German law, the chances are very good.
MeinMMO: What are the chances of success of a lawsuit regarding this issue in Germany?
Solmecke: A lawsuit of this kind could only be filed in Germany as a so-called individual lawsuit by a player. Here, the chances of success of a lawsuit would be quite good. After all, a specific characteristic of the item was promised, and only under these circumstances did players acquire it with real money. However, the item did not have the promised characteristic.
According to the provisions on digital products in the Civil Code (BGB), various claims due to a defect would be possible, such as subsequent performance, withdrawal, or damages. Furthermore, it would be possible to contest the contract due to a mistake about an essential characteristic and to get back one’s money.
MeinMMO: Thank you for the answers!
Activision Blizzard has only recently recovered from the major sexism scandal that has plagued the company for many months. The result was a hefty fine:
After the sexism scandal: Activision Blizzard pays a fine of 35 million dollars
