Commentary: The Life and Times of Erik Estavillo

Consider Erik Estavillo, a man with a dream.  What dream?  A dream to sue many, many games companies.  And not just sue them, no!  He wants to sue them in the most high-profile way possible!  Below is a summary of what Erik has got up to, and what you could do to ensure you don’t find yourself a target of something similar.

Example the first: Erik takes on Sony

In July 2009, Erik sues Sony Computer Entertainment America (SCEA) in California following SCEA’s banning of his Playstation Network account over comments he allegedly made on a SCEA forum and which appeared in some way to relate to the PS3 game “Resistance: Fall of Man”.  Among other things, Erik bravely claimed his freedom of expression was protected by the US First Amendment and therefore his account should not have been banned.  Also, he claimed $55,000 punitive damages and an injunction against SCEA banning further players in the same way.

In September 2009, the California court threw Erik claim out following a summary judgment application by SCEA, which argued that the First Amendment did not apply to PSN.  The Judge, he say yes.

In October 2009, not to be deterred, Erik filed an appeal against the court’s previous judgment. (Which seemed a bit ambitious, given that Erik was unrepresented and generally appellate courts will only consider genuine uncertainty in the law and will not simply hear a rehash of the previous case – appeals are not meant to be a second bite at the cherry).  As to that appeal, no word has reached the interwebs so far.

Example the second: Erik turns to Microsoft and Nintendo of America

In November 2009, Erik commenced a separate claim against Microsoft over the well-known ‘red rings of death’ problem.  In a nutshell (and without having seen the detailed court documents), it appears that he argued that Microsoft should pay the cost of fixing this hardware error, since Erik himself is disabled.  Erik also commenced a claim against Nintendo over its actions which allegedly led to certain of his characters in Mario Kart Wii becoming locked unless he bought Super Mario Galaxy.

Relatively little seems to be have been said about legal niceties such as establishing an arguable cause of action.  (For example: it is difficult to see why Microsoft should be forced to bear liability in respect of the ‘red rings of death’ beyond its (quite generous) warranty coverage – however ill or disadvantaged any of its players may be).

Example the third: Erik battles Activision-Blizzard

More hot legal actions a-coming.  Also in November 2009, Erik sues Activision-Blizzard over certain aspects of WoW.  This claim attracts the most publicity, because Erik claimed that he would sub-poena (i.e. witness summons) individuals including Winona Ryder and some chap from Depeche Mode (the reasons for which we will not waste time typing about).   Once again, relatively little (i.e. nothing) seems to be said about the precise details about Erik’s legal case.

What do we think? Vexatious litigation

Many people have commented across the net that Erik Estavillo must be a vexatious litigant.  Whether or not that is the case will no doubt be decided out in court in due course.

But let’s think about this in more general terms.  All games companies have the hypothetical risk that one of their players could after them (or many of them) with legal claims at any time.  In the usual course, the merits of that claim will be determined in Court. 

But sometimes people can use court claims tactically, to try to obtain quick commercial settlements on the basis that the claim is not worth fighting to trial either financially or for other (e.g. PR) reasons.  Or, sometimes, a person may have a perceived grudge with a company or another person and may pursue court claims as a way of ‘getting back’ at them.

What can you do about this?  Here are some quick tips/thinking points:

  • Think about the applicable law in the countries in which you operate and which govern your contracts (in particular, end user agreements such as EULAs).  What steps can you take to reduce the litigatio risk?  Bear in mind some legal systems are more ‘litigation friendly’ than others.  For example, it is sometime said that the US is (in very general terms) more claimant friendly than the UK because the US has no ‘loser pays the winner’s legal costs rule’ – which in the UK can be a big disincentive to legal action
  • If you do find yourself being pursued by a vexatious litigant, what steps can you take?  Depending on the laws of the jurisdiction, you may be able to take your own court action – for example, seeking an injunction against him/her.  If you have to fight a Court claim, discuss with your lawyers what aggressive actions you can take to knock the claim down (for example, you may be able to ‘strike out’ the claim if it has no realistic prospects of success).  And there is always the costs-hammer with which you can try to hit the claimant (see above)
  • Leave aside the legals and consider what other risk management strategies you should have in place.  What potential pitfalls are coming on the horizon and how are you dealing with them?  What is your customer-base happy or not so happy about? 

In the meantime, we will of course continue to keep an eye on Erik and his litigation machine…

[thanks for many links to GamesPolitics!]

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