Guardians of the Tower v. Xûr, Agent of the Nine

This is one of those things that’s so up my alley I’m kind of annoyed with myself that I didn’t think of it first, though I realize the target audience for it (the intersection of Destiny players and people interested in reading legal motions) might not be huge.

Some context for people who might not play Destiny: Xûr is a NPC vendor that shows up in the Tower (the social hub of the game) on weekends to sell end-game weapons and armor. Xûr’s inventory is randomly generated every week, and this randomness is a common cause of grief for players looking for specific equipment to fill out their inventory.

The Complaint

Well, reddit user Agent–Orange decided to take action on behalf of all the City’s Guardians and filed a class action suit against Xûr for intentional infliction of emotional distress.

xurcomplaint1 xurcomplaint2 xurcomplaint3 xurcomplaint4

Class Action Lawsuits

In a class action, a whole bunch of people who have suffered a similar harm come together to collectively sue the party responsible for the harm. Class actions are handy when a defendant’s wrongdoing is responsible for a substantial harm to a large number of people, but the individual injury to each person is so small that it’s not likely to be worth it for each one to individually sue the defendant.

Since the whole point of a class action is that it would be impractical for all the harmed parties to show up in court at the same time to sue the defendant, the interests of all harmed parties are represented in a class action by one or more named parties/representatives. The named parties’ interests must be typical of the class, and must ensure the fair and adequate representation of the interests of absent members of the class. Fed. R. Civ. P. 23(a).

One recent example of a real-world class action lawsuit in the video game industry comes from Sony. PlayStation owners may recall that in 2011, the PlayStation Network suffered a fairly egregious security breach that resulted in customer data being stolen and PSN being down for a good while. This is a situation where a class action makes total sense: that much customer data being stolen, plus the PSN service being unavailable for an extended period of time, probably resulted in a total loss of millions of dollars across all affected Sony customers, but each individual only lost a comparatively small amount (i.e., the value of not having the use of PSN for that time, plus any costs associated with their data being stolen, like identity theft or fraudulent credit card charges).

Rather than have thousands of tiny lawsuits to recover individual losses, some plaintiffs were named as representatives of the class and sued on behalf of all people affected by the hack. As often happens these kinds of high-profile situations involving huge international corporations, Sony agreed to a $15 million preliminary settlement while denying the allegations. (“We’re not saying it’s our fault, but here’s money so go away.”)

“Jesus, fine, here, have a PSN game or whatever, just leave us alone. Goddamned orphans.”

“Jesus, fine, here, have a PSN game or whatever, just leave us alone. Goddamned orphans.”

When the class action is resolved, the judgment binds all members of the class unless they specifically choose to “opt out” of the class action by notifying the court. In the case of the PSN hack class action, as a result of the settlement, all members of the class (everyone who had a PSN account at the time of the hack) can file a claim for some free PSN games and/or PS+ time, but in so doing would accept the judgment and waive the right to sue individually. If for whatever reason someone in the class feels that the judgment did not adequately represent their interests, they can opt out of the class action and retain their right to sue the defendant on their own.

Intentional Infliction of Emotional Distress

Yes, you can sue someone for causing emotional distress, but it’s not quite as simple as having your feelings hurt and suing the person that said the mean thing. In general, the required elements for intentional infliction of emotional distress are: 1) defendant’s extreme/outrageous conduct (that “transcends all bounds of decency”), 2) defendant’s intent to cause severe emotional distress to the plaintiff (or recklessness as to the effect on plaintiff), 3) defendant’s conduct caused plaintiff’s emotional distress, 4) actual damages, i.e., severe emotional distress, more than a reasonable person would be expected to endure.

As you can imagine, some courts are reluctant to entertain these types of lawsuits due to the inherent difficulty in establishing what exactly constitutes “extreme/outrageous conduct” and “severe emotional distress.” Examples of where courts have found such conduct actionable include situations where there is an abuse of authority (teachers threatening students, employers abusing employees, etc.) or involving the death of a relative (e.g., mishandling a relative’s corpse, misinforming someone about a relative’s death).

Physical injury/damage, such as ulcers or headaches, can be used to help prove severe emotional distress, but is not absolutely necessary. Severe emotional distress can also be proved with the help of a mental health professional documenting one or more specific mental disorders (e.g., paranoia, severe anxiety, major depression, etc.) caused by the defendant’s outrageous conduct.

The Answer

Not content to let Xûr fight this legal battle alone, reddit user ACbullman23 filed the following Answer and Affirmative Defenses on Xûr’s behalf:

xuranswer1 xuranswer2 xuranswer3 xuranswer4 xuranswer5 xuranswer6 xuranswer7

Conclusion

I’m going to have to side with ACbullman and the case for Xûr here. Even if the court did certify all Titans, Hunters, and Warlocks in the Tower as one big class, it’s not likely to find “not selling the thing I want” as outrageous behavior transcending all bounds of decency, and as ACbullman states in the Answer, even if plaintiffs suffered severe emotional distress, a reasonable Guardian isn’t likely to react to such a degree.

(If anyone is in touch with the Nine, let them know I’m willing to write an amicus brief on their behalf for a few dozen Strange Coins, or even just an Ice Breaker or Gjallarhorn. Or if they’re hiring for an in-house counsel position, Attorney of the Nine would look nice on a business card.)

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