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Xbox Drift Class-Action Case Heads to Arbitration

— April 26, 2021

Xbox controller drift issue will be arbitrated outside of court.

A lawsuit dealing with controller drift in the Xbox One’s Elite controller is now entering arbitration, meaning that it will be settled out of court.  The case was originally filed by Chimicles Schwartz Kriner & Donaldson-Smith (CSK&D) law firm in April 2020, alleging negligence in creating a defective controller design.  The drift occurs when the controllers start to get worn out from use and the joystick gets locked in a ‘drifting’ position.

The lawsuit alleges that Microsoft is “fully aware of the drifting defect after numerous online complaints received from its customers, and yet failed to disclose the defect and routinely refuses to repair the controllers without charge when the defect manifests.”

Since the filing, players who’ve experienced the drift have come forward, and Microsoft pushed to have the case settled by an impartial adjudicator.  The company previously claimed that the plaintiffs “agreed to its Services Agreement,” which states that all disputes should be resolved in this way, when they first signed into Xbox Live or when they purchased their controllers and used them.

Xbox Drift Class-Action Case Heads to Arbitration
Photo by Lalesh Aldarwish from Pexels

“The avid Xbox gamers who bring this lawsuit repeatedly agreed with Microsoft to submit their disputes to a consumer-friendly, individual arbitration process,” Microsoft’s counsel wrote in court documents. “The Court therefore should compel Plaintiffs to arbitration, where they can litigate their arguments as to scope, unconscionability, and disaffirmance.”

The attorneys continued, “Because ‘the Services’ include Xbox Live, the online service for Xbox play, any dispute concerning Xbox gameplay is arbitrable.  Here, Plaintiffs have Xbox Live Gamertags, and their claims center on the allegation that supposed controller defects prevent ‘accurate gameplay.’  An arbitrator could easily conclude this dispute concerns gameplay…Finally, it makes no difference that the full terms of the arbitration agreement appeared only online, with a thorough summary in the controller product guide.  Here, the product guides in the controller boxes summarized arbitration terms, and the URL both on the boxes and in the guides led directly to the warranties page, not a generic homepage.”

CSK&D partner Benjamin Johns announced that this is likely the “end of the road,” but that his firm will continue to fight to ensure each player affected gets an adequate payout.

Nintendo has been hit with similar lawsuits regarding drift with the Switch’s Joy-Con controller since 2019.  The litigation indicates the issue often continues to be evident even after the controllers are repaired and Nintendo charges for these services.  A case filed by gamer Luz Sanchez in Washington previously went to arbitration.

“Within a year,” the plaintiff had claimed, “the drift became so pronounced that the controllers became inoperable for general gameplay use…Defendant continues to market and sell the products with full knowledge of the defect and without disclosing the Joy-Con Drift defect to consumers in its marketing, promotion, or packaging.  Defendant has had a financial motive to conceal the defect, as it did not want to stop selling the products, and/or would need to expend a significant amount of money to cure the defect.”


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