Class Action Lawsuit Filed Against Microsoft for Xbox360 “Bricking”

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Topic: Torts

Following a class action lawsuit filed against Microsoft regarding "bricked" Xbox 360s, Next-Gen spoke with one of the plaintiff’s lawyers, who said M’soft’s only defense could be, "We’re Microsoft, and we can do anything we want."

Next-Gen spoke with Brian Kabateck, senior partner at Kabateck Brown Kellner, who admitted that his firm has "no idea" what the actual amount of damages sought after actually is, because it’s unclear how many people this issue has affected (although Microsoft claimed shortly after the update that less than 1 percent of Xbox 360 users were affected). The firm pleaded the $5,000,000 amount as a procedural measure for the Federal Court in order to make sure the plaintiff and law firm had triggered appropriate jurisdiction.

Kabateck contested Microsoft’s official claim that the company would pay all shipping, repair and/or replacement costs for affected consoles. “If that were true, that would go a long way to solving the problem,” Kabateck said. “Unfortunately, all the reports we’re getting is that Microsoft is saying ‘Send your Xbox in and for 140 bucks we’ll fix it.’ In our opinion, they’re turning their screw-up into a profit center.”

Some onlookers have criticized the lawsuit as frivolous and lacking in evidence, as the complaint cites shaky sources such as independent bloggers, message board posts, Google search results for “Xbox 360 bricking” and Ray’s personal account.

However, Kabateck explained that none of those things, aside from Ray’s testimony, would be admissible in court. He said that for this case, evidence would be drawn from two primary sources. One would be first-hand accounts from live witnesses that experienced the problem. Secondly, lawyers also plan on subpoenaing records from Microsoft, such as internally-kept complaint documentation.

Blog posts from Microsoft employees such as Xbox Live director of programming Larry "Major Nelson" Hyrb would also be admissible as evidence, according to Kabateck. "[Those posts] are an admission of the problem. … They acknowledged this problem. [Microsoft] may have excuses for this, but they acknowledged this problem."

Hyrb had referred to the problem in a November blog post.

The full suit can be read at the Seattle Post-Intelligencer (.pdf).