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Category — Product Liability Cases

Mother Sues Vivendi and Sony over Alleged Spyro-Enduced Seizures

Categories: Product Liability Cases

Despite a warning notice on the inside front cover of the instruction manual warning that some users may experience epileptic seizures (a warning contained on most every video game I’ve ever purchased), a New York woman is suing Vivendi, Sierra Entertainment and Sony alleging that her young son suffered seizures as a result of playing the Spyro video game.

Nintendo obtained a summary judgement in its favor over a similar lawsuit in 2003 when a woman claiming her son died of a seizure when playing Nintendo 64 failed to respond to the summary judgment motion.

Dale’s Comment: Given the warning label, this doesn’t seem like a winning case. Parents may wish to take these precautions suggested by epilepsy action to minimize the possibility of their children experiencing video-game related seizures.

Sources: GameSpot | EuroGamer | joystiq | GamesDog | Kotaku

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Microsoft Retroactively Extends Xbox 360 Warranty from 90 Days to One Year

Categories: Product Liability Cases

Text of New Xbox 360 Warranty

In the wake of both an online petition “demanding” Microsoft extend its warranty and a possible class action suit for “bricked” Xbox 360′s, Microsoft is retroactively extending its XBox 360 warranty from 90 days to a full year in North America. This change brings Microsoft in line with Sony and Nintendo, each of which provide 1 year warranties on their PS3 and Wii consoles respectively.

Xbox 360 owners that have previously paid out-of-warranty repair charges within their first year of ownership will automatically receive reimbursement checks within 10 weeks for the amount of their console repair from Microsoft.

The text of the new warranty can be read here.

Sources: Joystiq | Xbox360 Fanboy | Team Xbox | GameSpot | ZDNet | Daily Tech | MSN Money (AP) | Gizmodo | Seattlepi.com | GameDaily.biz | Gamasutra | XBox.com – How to Contact Us | Xbox.com | Microsoft Press Release | Text of New 360 Warranty

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

Categories: Consumer Protection CasesController CasesProduct Liability CasesUnfair Business Practice Casses

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.

Sources: GameSpot | Next Generation | GameIndustry.biz | GameDaily.biz | Kotaku | Bit-tech.net | Daily Tech | Gamasutra | Engadget | Green Welling (the Class Action Firm representing the plaintiff)

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Nintendo to Replace WiiMote Wrist Straps/Recalls DS Adapters

Categories: Consumer Protection CasesController CasesProduct Liability Cases

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!]

Sources: Nintendo’s Wii Strap Replacement Form | GameSpot | Next Generation | GameDaily.biz | CNet Blogs | CNN Money | ABC News (AP) | Guardian Unlimited | Times Online | Playfuls.com | Washington Post (Reuters) | EuroGamer | Forbes (XFN) | BBC | PC World | Red Herring | GamaSutra

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Fall-Update “Brick” Class Action Brought Against Microsoft

Categories: Class Action CasesConsumer Protection CasesProduct Liability CasesUnfair Business Practice Casses

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.

Sources: ars technica | Seattle Post Intelligencer | GameSpot | ZDNet | Joystiq | Next Generation

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Motion Filed to Dismiss Xbox 360 Overheating Lawsuit

Categories: Consumer Protection CasesProduct Liability Cases

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

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

Categories: Consumer Protection CasesProduct Liability Cases

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

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Video Games Create a Whole New World of Legal Liabilities

Categories: CheatingFeatured ArticlesProduct Liability CasesStartup Game Developer IssuesVirtual Crime CasesVirtual Property CasesVirtual Property Taxation

Chris Bennett, of Davis & Company, LLP describes numerous possible new legal liabilities flowing from video game play. He discusses online theft, online assault, offlline assaults and cheating.

Source: Lawyers Weekly

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Sony Settles PS2 Class Action Suit

Categories: Class Action CasesProduct Liability CasesSettlements

Ruling on infamous “disc read error” issue could give qualifying PS2 owners $25, a free game, free repairs, or a replacement system. Canadian and U.S. courts must approve the settlement before it is finalized.

Sources: Gamespot | Gamasutra

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