Xbox 360 Class Action: The Disk Scratching Suit

Joystiq is reporting that the first class action lawsuit against Microsoft over the Xbox 360 has been filed. The suit, which I have verified was filed, is in Florida and is asking $5 million on a combined warranty and strict liability theory.

There are two thoughts this case brought to mind. First, it seems as though there is a better chance of recover here than on the ubiquitous “Three Red Lights” issue. Microsoft has at least made some effort to correct the red lights through the warranty extension (although those who took some action which voided the now re-instated warranty during the gap period may have better standing in that regard). The disk scratching, however, has largely gone unaddressed.

Second, while I understand the warranty theories presented in the case, the strict liability theory seems to be a bit of a stretch. While I am no expert on Florida law, strict liability usually requires a physical harm (physical injury) or unreasonably dangerous condition to be created by the product. In fact, paragraph 66 of the pleading makes this claim. I see no such issue with a scratched disk, unless users are suffering heart attacks when Gears of War won’t read or a repetitive stress injury from ejecting and re-inserting the disk, hoping it will work.

Scans of the lawsuit are available on Joystiq for free, or through the Florida ECF/PACER system (not free). This may be the first Xbox 360 suit, but it may also not be the last.

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About Mark Methenitis

Mark Methenitis is an attorney in Dallas Texas. Mark received his Juris Doctorate and his Master of Business Administration from Texas Tech University and his Bachelor of Arts from The University of Texas.

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