District Court Judge Gary Feinerman, on Thursday, May 21 rendered a ruling in the litigation brought against Nintendo over their consoles Joy-Con drift defect. Though the courts recognize the issue does exist, the Judge has ruled the issue must be arbitrated, not litigated.
A quick recap, the Joy-Con drift is a prevalent issue where the controller after the input has stopped continues to register input. Resulting in gamers likely dying or in the most severe instances, unable to utilize the controllers that came with the consoles. For their part, Nintendo now repairs all impacted hardware for free, but for consumers buying a defective product is unacceptable.
Part of the judge’s ruling picked up by Nintendo Life, lays out his verdict, moving the issue to arbitration by the American Arbitration Association.
“Vergara correctly observes that a party cannot be required to arbitrate a dispute that he has not agreed to submit to arbitration. That principle, however, does not mandate that the court, rather than the arbitrator, decide whether his claims must be arbitrated. By entering into an arbitration agreement that incorporates the AAA Rules, the parties delegated to the arbitrator the question whether Vergara’s claims must be arbitrated.”
Parsing through that word salad, what the Judge has ruled is because Vergara agreed to Nintendo’s Terms of Service Agreement he must abide by the provisions contained within. One of those provisions, specifically Section 13, dictates all disputes or claims referred to collectively as a “Claim” must be resolved through arbitration by the American Arbitration Association under their consumer protection guidelines. Vergara or anyone else through direct or implied consent waves the right to litigate the issue unless the arbitration determines otherwise.
(B) Any matter we are unable to resolve and all disputes or claims arising out of or relating to these Terms or your use of the Services (each, a “Claim”), with the exception of the matters described in section 13(d) below, shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all Claims. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The parties understand that, absent this mandatory provision, they may have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. ANY SUCH ARBITRATION SHALL BE CONDUCTED BY THE PARTIES IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. If any court or arbitrator determines that the class action waiver set forth in the preceding sentence is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth in this Section 13 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims.
That may seem rather unfair, but if you do not agree to the arbitration clause, you must notify Nintendo within 30 days or implied consent is enforced under US Law. Provision (e) formally explains the details, but the short of it is provision 13 is null, and one can proceed with litigation rather than arbitration if notification is sent.
(e) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Section 13 by sending written notice of your decision to opt out to the following address: Nintendo of America Inc., Attn: CS Admin, 4600 150th Ave NE, Redmond, WA 98052 within 30 days of the start of your use of the Services. If you send this notice, then Section 13 will not apply to either party. If you do not send this notice, then you agree to be bound by this Section 13.
If this sounds rather unfair, in part, it is. In a sound legal system, it would be impossible or detailed how far one could overrule the laws of the land with an independent agreement. In some regards, one cannot use a signed or implied agreement to skirt the law. See prostitution for example, but in the realm of entertainment and consumer goods the law permits this to occur.
An argument could and should be made for nullification of that exception. Under the Rule of Law, which dictates there are no exceptions to the letter of the law even for the enforcers of the law, these exceptions wouldn’t exist. Though that is a vastly more complicated issue that as a nation needs to be discussed. Unfortunately, though it would resolve a lot of issues both the left and right have with society, that discussion isn’t likely to occur anytime soon.
As Vergara did not send in notification voiding Provision 13 implied consent was implemented after 30 days of purchase. Unfair as it is, the law is universal in its application when it comes to declaring the “I didn’t read the terms of Conditions” excuse to be void.
In 2013 Dmitry Agarkov successfully won $700,000 in a lawsuit against Tinkoff Credit Systems after they violated the terms of conditions in a modified contract he sent them, and they didn’t veto within 30 days, as reported by The Moscow Times. His terms were rather ludicrous. On some purchases, the credit card company was required to give him 30% cashback. In addition to that term, he would have a 0% interest rate, and there would be no commissions or fees. If Tinkoff attempted to terminate the contract prematurely, it would cost them six million rubles.
As hard as these stories are to track down, he is not the only one to have ever pulled this off. We are just waiting for someone to pull it off in the video game sphere.
