Video Game Law Blog » Consumer Protection Cases

Class Action Firm and Austin Plaintiff Seek Class Action Status over WiiMote Strap

Dale Dietrich — Wed, 20 Dec 2006 18:01:57 +0000

It was bound to happen! Within days of Nintendo announcing its plan to replace thin WiiMote wrist straps with thicker one’s, a story emerges about a Wii purchaser in Austin, Texas filed a suit alleging Nintendo violated the Washington Consumer Protection Act, was in breach of warranty and engaged in unfair or deceptive practices:

by telling consumers that the wrist strap was to prevent the controller from flying out of a user’s hand during use, and then providing a strap that was “ineffective for its intended use.

As is typical in this kind of case, the plaintiff (or more accurately, his/her lawyers ) is seeking status as a class.

Nintendo to Replace WiiMote Wrist Straps/Recalls DS Adapters

Dale Dietrich — Fri, 15 Dec 2006 21:07:39 +0000

After several reports of personal injury and numerous reports of WiiMotes flying through the air and causing property damage, the US Consumer Product Safety Commission reports that Nintendo is voluntarily replacing the wrist straps that come with the WiiMote with stronger “enhanced” versions. There are an estimated 3.2 million straps to be replaced. Despite many press accounts to the contrary, Nintendo is not recalling existing straps. They are simply replacing existing straps upon request.

In a separate announcement Nintendo announced it was recalling some 200,000 AC adapters for Japanese versions of DS and DS Lite portable game systems.

Dale’s Comment: I’m happy to see Nintendo get out ahead of any possible lawsuits on this one. Numerous blog posts and podcasts have already started speculating about the inevitability of lawsuits if Nintendo doesn’t provide a more robust WiiMote wrist strap.

[Dec 20 Update: Well, as you can see from the related posts below, it only took 5 days from my original posting for a lawsuit story to emerge!]

Fall-Update “Brick” Class Action Brought Against Microsoft

Dale Dietrich — Sun, 10 Dec 2006 16:10:58 +0000

Text of Complaint (Nov 29, 2006)
Microsoft has been sued over an allegation that its XBox 360 Fall Update (ie: a mandatory XBox 360 download) caused a total system malfunction (turned the units into “bricks”) for some users.

The claim alleges that Microsoft is refusing to pay the shipping, repair or replacement costs of affected units. Microsoft says it is paying shipping costs to fix or replace all affected units. The claim alleges breach of contract, negligence and violation of Washington’s Consumer Protection Act. It seeks $5 million in damages – presumably for the a yet-to-be-certified class and not just for the particular aggrieved plaintiff Kevin Ray.

Of particular interest the claim alleges that the limitations of liability, warranty and remedies clauses contained in Microsoft’s Terms of Use (TOU) are unenforceable due to unconscionability in that:

XBox owners were never shown to the Class/Plaintiff: This isn’t likely. I specifically recall being presented with Microsoft’s TOU when I signed up for Xbox Live.
the limitations and disclaimers were not specifically shown to each member of the Class – Case after case have upheld click wrap agreements of this kind. Unless there is something specific under Washington consumer protection law on this point, I’d be enormously surprised if this is relevant to any court.
the limited remedy under the TOU fails in its essential purpose because it deprives the Class of the substantive value of its bargain – again, such clauses are commonplace in click-wrap agreements and routinely enforced by courts.

Toys ‘R’ Us Accused of Wii Bundling Bait and Switch on Black Friday

Dale Dietrich — Fri, 01 Dec 2006 22:24:40 +0000

The Better Business Bureau has been asked to look into a possible Chicago area Toy’s ‘R’ Us Bait and Switch operation where a consumer says an Toys ‘R’ Us flyer promoted the Wii for $249 on Black Friday but when the consumer went to purchase one, they were forced to buy additional items or go home empty handed.

Grandma Files FTC Complaint over Wii Bundling

Dale Dietrich — Wed, 29 Nov 2006 21:26:59 +0000

Shelly Peruso reserved two Wii Consoles at a local Pennsylvania Saturday Matinee store on October 13th. She put $100 down on deposit. When she went to pick them up last week the clerk said she must also purchase two games per console. She says she was never told this when she reserved the system.

Dale’s Comment: While I don’t believe she’ll have much success if she were to argue console/game bundling is problematic, she’ll probably have an actionable claim (if it goes that far) on both a basic contract formation and consumer protection basis. If the receipt she received isn’t explicit on the point, the verbal contract should govern.

Sources: GamePolitics.com | WJACTV

GameDaily.biz Feature: Do Mandatory Console Game Bundles Violate Anti-trust Laws?

Dale Dietrich — Sat, 11 Nov 2006 19:22:11 +0000

A phenomena of the recent three console launches (Xbox 360, PSP, DS, PS3 and Wii) is the mandatory bundling foisted on gamers by retailers looking to cash in on the extremely high demand for these consoles on launch.

GameDaily.biz has a feature article “Predatory Packaging: Are You Being Illegally Forced into Buying a Mega Console Bundle?“ on this topic is worth a read.

According to Bob Freitas, a technology and antitrust litigator and partner in Orrick’s Silicon Valley office, it’s possible that these bundles could violate certain anti-trust laws, but it’s not highly likely he explained.

Source: GameDaily.biz

Motion Filed to Dismiss Xbox 360 Overheating Lawsuit

Dale Dietrich — Mon, 02 Jan 2006 20:13:21 +0000

In the motion to dismiss, Microsoft notes that “Significantly, Plaintiff omits the fact that his Xbox 360, purchased in November 2005, is still covered by a 90-day warranty, under which Microsoft agreed to repair or replace it, or issue a refund. In fact, Plaintiff does not allege that he contacted anyone at Microsoft about the alleged defect, let alone that Microsoft refused to honor the terms of its warranty. Moreover, Plaintiff does not allege that his Xbox 360 ever malfunctioned. He alleges only that “members of the class have experienced malfunctions” with their Xbox 360s – not that he has.

[March 29, 2006 Update: ars technica reports that On March 29, 2006, the complainant Robert Byers filed for voluntary dismissal of the case.]

Sources: Xbox 360 Fanboy | Xbox Today | Planet XBox 360

Man Commences Class Action Suit Against Microsoft over Alleged Xbox 360 Glitch

Dale Dietrich — Mon, 05 Dec 2005 18:50:01 +0000

Text of Complaint

The proposed class action suit claims that Microsoft released a “defectively designed” product that is prone to failure due to overheaing.

Dale’s Comment: While initially denying the extend of this problem in late 2005 and early 2006, in October of 2006 Microsoft offered to replace all defective units without charge.

[March 29, 2006 Update: ars technica reports that On March 29, 2006, the complainant Robert Byers filed for voluntary dismissal of the case.]

Sources: BBC | GameIndustry.biz | GameDaily