Microsoft Demands Xbox “Drift” Lawsuit Move to Arbitration

Ryan J. Farrick — January 5, 2021

An Xbox controller. Image via PxHere. (CCA-BY-0.0).

Microsoft retroactively changed its warranty to keep this suit out of court.

Microsoft has asked that a lawsuit alleging problems with its Xbox controllers be taken out of the courts and moved into arbitration.

The lawsuit, which was filed in April 2020, claims that Xbox controllers suffer “drift” with regular use. In other words, controllers may input incorrect commands as a result of expected wear and tear.

The “drift” phenomenon, says the Video Games Chronicle, has been observed across controller models and configurations.

In their complaint, the plaintiffs said Microsoft was aware that its controllers may suffer time-related defects but failed to warn consumers of the potential consequences thereof. Several gamers joined the litigation in October, prompting calls for a swift jury trial.

However, Microsoft has since asked the court to consider whether moving to trial is necessary or legal. According to Microsoft, most Xbox users are compelled to arbitration, having electronically signed or otherwise agreed to the company Services Agreement upon purchasing their gaming consoles or controllers.

Arbitration, adds the Video Games Chronicle, would compel the plaintiffs to cease litigating in court. Their case would then be presented in front of a supposedly impartial arbitrator, whose decision would be final and legally binding.

While arbitration is often positioned as an “impartial” process which allows companies to resolve legal disputes outside of courts, adjudicators are notoriously biased towards corporate defendants. That’s because arbitration rules tend to favor the same corporations which coordinate adjudicatory proceedings. And—despite depriving plaintiffs of many of the rights they would have in a government court—complainants still often have to hire an attorney to fight on their behalf.

image of a legal gavel and books — Legal gavel and books; image courtesy of
succo via Pixabay, www.pixabay.com

Arbitration also tends to disallow class action-type complaints—meaning that consumers who may have suffered a minor financial loss, such as a defective Xbox controller, would have to pay thousands of dollars in legal fees to resolve a complaint which resulted in relatively low loss. Traditional class actions, on the other hand, permit plaintiffs who lost individual small sums to band together for a larger reward and less personal risk.

Nevertheless, Microsoft says the Services Agreement means gamers cannot bring their case in court—in spite of the fact that relatively few likely even read through the terms and conditions.

“Plaintiffs repeatedly agreed not to bring a lawsuit like this in court,” Microsoft said.

“Instead, they assented to the Microsoft Services Agreement (‘MSA’) and to warranty agreements in which they promise they would arbitrate n an individual basis using a consumer-friendly process before the American Arbitration Association (‘AAA’),” Microsoft said in a court filing. “The Federal Arbitration Act requires enforcing these agreements.”

The Chronicle and several other sources observe that Microsoft retroactively extended the warranty on some drift-affected controllers only after the plaintiffs registered their class action.

Unfortunately, precedent may be on Microsoft’s side—another drift case, brought against Nintendo, saw the class forced into arbitration after the judge acceded to the company’s arguments.