Nintendo Switch Controller Drift Claims To Be Arbitrated

A federal judge in Illinois has ruled that a gamer’s class action claim against Nintendo of America related to an alleged defect in the Switch video game console must go to an arbitrator to determine if the claim is arbitrable.

Judge Gary Feinerman opined that if the arbitrator finds that the claims are not able to be arbitrated, the plaintiff will be able to pursue the claims in court. The judge noted that, by entering into an arbitration agreement, the parties have delegated to an arbitrator about whether the claims against the defendant are arbitrable.

In the judge’s opinion, plaintiff Zachary Vergara “correctly observes that a party cannot be required to arbitrate a dispute that he has not agreed to submit to arbitration.” However, that principle, “does not mandate that the court, rather than the arbitrator, decide whether his claims must be arbitrated,” according to the judge.

Vergara filed his lawsuit in Illinois state court, claiming that the “Joy-Con” controllers that he purchased with his Nintendo product are defective. The case was later removed to federal court.

Vergara claims that he purchased a Nintendo Switch at a Best Buy in Chicago. Around 14 months after his purchase, he states that his Switch began experiencing the defect, with a drift appearing in the left Joy-Con controller.

The plaintiff avers that the drifting impedes his ability to play his Switch console and that the controller eventually became unusable for game play. He says that, as a result of the defect in the joystick, he had to replace the controller from a third-party, which cost him $19.99. 

Vergara’s Nintendo Switch controller drift class action lawsuit claims that the controller for his Switch product contains a defect that causes the joystick to drift on its own without the user manipulating the joystick. He says that the defect affects the video game play of the Switch and compromises the core functionality of the gaming console.

The plaintiff says that the analog stick will falsely register user input, or drift, on its own without the user actually manipulating the joysticks. The Nintendo Switch controller drift interferes with the user’s game play and the enjoyment of the Switch console as the entire purchase of the stick is to control the action of the video game.

Vergara maintains that internet complaints about the Nintendo Switch drift go back to 2017 on forums that are monitored by Nintendo. These complaints are numerous and can be found on different online forums throughout the internet.

Nintendo has allegedly not taken any measures to fix the issue with the defendant’s controllers and, in fact, refuses to disclose the problem to consumers prior to the purchase of the product. Thus, Vergara states that Switch owners are forced to send their controllers back to Nintendo and pay for them to be repaired, purchase a self-repair kit and fix the problem themselves, or replace the controllers altogether.

“Because of Defendant’s actions. Switch owners have suffered damages for loss of use of their Switch and Controllers, loss of property value, and loss of time and expense trying to fix the problem themselves or by contacting Defendant for support,” the Nintendo Switch drift class action lawsuit says.

The plaintiff states that, at the time that he purchased the Nintendo Switch, he was unaware of the joystick defect and Nintendo did not disclose the defect even though they had knowledge of the defect. If Vergara had known about the defect before his purchase, he would not have bought the console or would have paid less for it.

“Plaintiff and the other members of the Class were deceived and/or misled by Defendant’s misrepresentations regarding the quality and functionality of the Switch and the Controllers which they purchased,” the Nintendo Switch controller drift class action lawsuit argues.

Questions of law and fact in the Nintendo Switch drift class action lawsuit include: 1) whether the defendant engaged in unlawful conduct; 2) whether the joysticks are defective; 3) whether the defendant knew of the defect when marketing the Switch to consumers; and 4) whether the defendant violated the Illinois Consumer Fraud Act and other statutes.

There are two prospective Classes in the Nintendo Switch controller drift class action: 1) “The Class: All persons in the United States who, within the applicable statute of limitations, purchased Defendant’s Nintendo Switch or Controllers in the United States” and 2) “The Subclass: All persons in the United States who, within the applicable statute of limitations, purchased Defendant’s Nintendo Switch or Controllers in Illinois.”

Do you own a Nintendo Switch that has the drift defect? Leave a message in the comments section below.

The plaintiff is represented by Eugene Y. Turin of McGuire Law PC.

The Nintendo Switch Controller Drift Class Action Lawsuit is Zachary Vergara v. Nintendo of America Inc., Case No. 1:19-cv-06374, in the U.S. District Court for the Northern District of Illinois.

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