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THREAD: Twitter is circulating that Nintendo has argued "Joy-Con drift isn't a real problem" in answer to a class-action lawsuit. I put on my investigative cap and downloaded the court docs to get a fuller picture. Spoiler, it's more complicated, but still Not Great. (1/26)
For background, recent discussion of the lawsuit began with this Reddit thread. The OP says he received an email from the plaintiffs' law firm, soliciting short videos of Joy-Con drift in action to show Nintendo's attorneys. (2/26) https://www.reddit.com/r/NintendoSwitch/comments/j3fu5w/nintendo_joycon_drift_class_action_lawsuit/?sort=top
The thread copypastes the email text, in which the plaintiffs' attorneys allege Nintendo says Joy-Con drift "isn't a real problem" and "hasn't caused anyone any inconvenience." They want to put the videos in a montage to "humanize" the issue and show its consumer impact. (3/26)
I'm no lawyer, but I speculate there's another reason for the videos — the plaintiffs' attorneys want to gin up public pressure against Nintendo as a Hail Mary in what, as far as I can tell, might already have become a losing case. (4/26)
There haven't been any filings in the Joy-Con lawsuit since a federal judge's order March 2, 2020 — not surprising, given the timing. The order kept the case open but sided with Nintendo's motion to compel individual arbitration of claims from 18 current gamer plaintiffs. (5/26)
The judge directed the parties to file a joint status report within 14 days of finishing arbitration or by Dec. 31, 2020, whichever comes first. Even though the arbitrator -could- award "public injunctive relief," this seems to be an uphill climb for the gamers. (6/26)
For those unfamiliar, arbitration empowers one or more third-party arbitrators to decide a legal dispute outside the courts. And consumers are virtually guaranteed to get the short end of the stick when powerful corporations foist this method upon them. (7/26)
The nonprofit Economic Policy Institute found in 2017 that arbitrators granted consumers relief in 9% of disputes vs. 93% for corporations, which favor arbitration as a means for avoiding class-action cases and reducing their legal bills. (8/26) https://www.epi.org/publication/correcting-the-record-consumers-fare-better-under-class-actions-than-arbitration/
I wouldn't go this far into the legal weeds if Nintendo weren't following this playbook to a 'T,' using a little tool you might or might not have paid attention to in first setting up your Switch: the End-User License Agreement (below in full). (9/26) https://tinyurl.com/y39k8ctn
The way Nintendo's attorneys tell it in their legal replies, each gamer plaintiff who experienced Joy-Con drift agreed to individual arbitration because they checked "Accept" for an EULA on this screen. You don't accept, you can't go on to use your Switch. (10/26)
If the gamers didn't consent to arbitration, Nintendo continues, they could've returned their Switches for a full refund or provided written opt-out notices within 30 days. Not the first thing most would consider upon receiving a console for their birthday or Christmas. (11/26)
Another wrinkle, Nintendo says these EULAs extend beyond each Switch console to include future "accessories" purchased for it. In other words, you agree to arbitration not just for disputes over issues with the console's initial Joy-Cons, but all replacements, too. (12/26)
Of note, none of the replies from Nintendo's attorneys address the actual Joy-Con drift problems raised by the gamer plaintiffs — problems that mirror those several of you have shared on social media over the past few days. (13/26)
The closest the big N's attorneys get? Brushing aside claims that the company released the Switch Lite with irremovable Joy-Cons, without remedying known drift issues, because none of the 18 gamers' claims involved Switch Lites. (14/26)
The lone plaintiff in the lawsuit's first version, a California gamer named Ryan, experienced Joy-Con drift 11 months after he first bought his Switch. Nintendo sent him a replacement controller within the one-year warranty, but that, too, began drifting after 3 months. (15/26)
Funnily enough, to show that Nintendo must be aware of Joy-Con drift because of internet complaints, the lawsuits include a handful from sites like GameFAQs, r/NintendoSwitch and IGN as evidence. Here are just a few examples. (16/26)
This is a pause where I chuckle about that argument. You'd think forum posts would make Nintendo would wise up as to how prevalent Joy-Con drift is, but then again, it took the Smash Ballot for them to realize K. Rool had any popularity at all. (17/26)
Ahem. It's true that Nintendo stopped charging for Joy-Con repairs — a decision the company reportedly announced days after the lawsuit was first filed in July 2019, in an internal memo to customer service reps. (18/26) https://www.vice.com/en/article/8xzzva/internal-nintendo-memo-instructs-customer-service-to-fix-joy-con-drift-for-free
The gamers' attorneys, however, assert that Nintendo engaged in "unfair, deceptive and/or fraudulent" business practices through its failures to disclose material info about drifting and to fix the defect, even in cases where it has repaired or replaced Joy-Cons. (19/26)
One last relevant aspect of the Joy-Con lawsuit I found compelling was, the gamers' attorneys enlisted a technical expert to break down the controllers and help determine why drift issues are as ubiquitous as they are. And they brought receipts. (20/26)
The expert analyzed controller pieces with a scanning electron microscope, and found that joysticks' steel brushes were scraping against the soft carbon pads and polyethylene pieces used to transmit player movements. (21/26)
This, in turn, resulted in abrasive debris accumulating on the brush tips, and corresponding wear patterns on the flexible circuits tasked with sending electric signals to the controllers' motherboards — potentially a source of drifting. (22/26)
The gamers seek a few outcomes: certification for a class of U.S. Switch or Joy-Con buyers; to permanently ban Nintendo from the alleged anti-consumer practices; a recall or free replacement program; a device buyback; and damages in an amount TBD at trial. (23/26)
Again, not being a lawyer, I can't predict how exactly this Joy-Con lawsuit will end, though everything I've heard/read about arbitration paints a bleak picture for the gamers who, like so many of you, just want to play on controllers that don't continually go kaput. (24/26)
To close, I wrote this thread mostly to inform, but also to underscore points my account co-owner and I have made several times: multibillion-dollar companies aren't your pal; support developers, not execs; and the corporate actions fans tolerate are the ones they'll get. (25/26)
You can view the most recent version of the gamers' lawsuit and submit your own Joy-Con drift complaints at this link. Their law firm also is accepting drift videos up to 90 seconds, emailed to nintendoclassaction@chimicles.com by Friday, Oct. 16. (26/26) https://chimicles.com/cskd-files-class-action-lawsuit-against-nintendo-of-america-inc-relating-to-joy-con-drifting-issues/
