Nintendo is facing legal trouble around the world for the continued problems surrounding Joy-Con drift. The issue — which causes the Switch controller to falsely register thumbstick input, leading to unwanted reticle and/or character movement — has been reported since the launch of the Nintendo Switch in 2017 and persisted on the Switch Lite in 2019.
Most recently, a Canadian law firm filed an application to bring a class action suit against Nintendo in Quebec, claiming Nintendo has violated the province’s Consumer Protection Act by continuing to sell Joy-Cons despite their “hidden defect.” The case is currently awaiting authorization from one of Quebec’s federally appointed Superior Court judges.
With this latest case pending, we set out to uncover the depth of Nintendo’s present legal trouble surrounding Joy-Con drift. The issue is the basis of three active class action lawsuits in the United States, a formal complaint to a public prosecutor in France, and a continent-wide investigation in Europe.
Lawsuit #1: Diaz v. Nintendo of America, Inc.
Background: Filed on July 19, 2019, in the United States District Court for the Western District of Washington (Seattle).
Claim: “Unfair, deceptive, and/or fraudulent business practices” by Nintendo related to Joy-Con drift. Specifically, the lawsuit names nine claims for relief, with counts ranging from violation of the Magnuson-Moss Warranty Act to a breach of implied warranty of merchantability, which means “the seller promises that the product will do what it is supposed to do,” according to the Federal Trade Commission.
Status: The judge granted Nintendo’s motion to compel arbitration, yet denied its request to have the case dismissed; the class action case is on hold pending results of the 18 plaintiffs’ individual arbitrations.
Lawsuit #2: Sanchez v. Nintendo of America, Inc.
Background: Filed on October 5, 2020, in the United States District Court for the Northern District of California (San Francisco).
Claim: “Unlawful conduct” by Nintendo related to its marketing and selling of Joy-Con controllers. Specifically, this suit contains seven claims for relief, citing violations of California’s unfair competition law, false advertising law, the aforementioned Magnuson-Moss Warranty Act, and the Song-Beverly Consumer Warranty Act.
Status: Nintendo has filed a motion to transfer the case to the U.S. District Court for the Western District of Washington (Seattle), where the two other active cases have been filed. This motion will presumably be granted considering the End User License Agreement (EULA) for Switch states any U.S.-based disputes will be settled exclusively in King County, Washington, home to Nintendo of America. (More on the EULA below.)
Lawsuit #3: Carbajal v. Nintendo of America, Inc.
Background: Filed on November 17, 2020, in the United States District Court for the Western District of Washington (Seattle).
Claim: “Unfair, deceptive, and/or fraudulent business practices” by Nintendo related to Joy-Con drift. The filing states Nintendo is aware of the issue yet fails to disclose it to consumers prior to purchase and has been “unable to successfully eliminate the defect or prevent it from re-manifesting” when repaired or replaced.
Status: Nintendo filed a motion to compel arbitration, which the court has yet to rule on. Previous cases suggest the motion will be granted. Nintendo notably declined to file for dismissal, presumably due to this same court’s previous denial of that motion in the Diaz case.
A History of Nintendo Hardware – 1977 to Now
Nintendo’s Class Action Safeguard: Its EULA
In every such case filed against Nintendo to date, the company has successfully compelled arbitration (an out-of-court method of dispute resolution where a neutral party decides whether or not the claimant is entitled to damages). Nintendo’s success in filing these motions is due to its End-User License Agreement, which Switch owners must agree to during the console’s initial setup. The EULA includes a provision in which Switch owners “waive their right to file a class action [suit] or seek relief on a class basis” and agree that disputes will “be finally settled by binding arbitration” (“binding” meaning the arbitrator’s decision is final and enforceable by a court).
All Switch owners have the opportunity to opt out of this provision (after being forced to accept it during the console’s initial setup) by sending a physical written notice within 30 days of their purchase (in the U.S., at least). However, according to the court records, none of the plaintiffs in the three cases above chose to do so.
Despite plaintiffs’ attempts to disaffirm the agreement, federal courts have thus far enforced the EULA, sending disputes to arbitration and safeguarding Nintendo against jury trials or settlements.
Potential Legal Action in Europe
While Nintendo isn’t currently facing litigation in Europe, there are active investigations into its business practices surrounding Joy-Con drift.
In May 2019, French consumer advocacy organization UFC-Que Choisir called for Nintendo to repair Joy-Cons for free, which Nintendo obliged. However, the group continued to receive complaints of Joy-Con drift into late 2020, leading them to issue a formal complaint to the public prosecutor in the French commune Nanterre. The complaint alleges “Nintendo is engaged in practices of planned obsolescence,” as evidenced by “the nature of the failure, its frequency of occurrence with players, the limited lifespan of these products and the inertia of the manufacturer, however informed of the malfunction.”
Nintendo France refuted the allegation by saying, in part, that only “around 1%” of Switch owners in France experienced Joy-Con drift, and over 90% of affected systems have been repaired for free over the last two years. It also points to the “long lifespan” of previous Nintendo consoles, namely the Wii and DS, as evidence that Nintendo doesn’t deliberately “shorten the life cycle of its products.”
In January 2021, a wider-reaching consumer group in Europe, the BEUC (the Bureau Européen des Unions de Consommateurs, or European Bureau of Consumers’ Unions), put out a call for Switch owners to report Joy-Con drift. The information gathered will be used to determine what (if any) further action will be taken against Nintendo of Europe.
What Happens Next?
In Europe, Canada, and the United States it’s now a matter of waiting for the investigations and arbitrations to play out. We’re keeping an especially close eye on the proceedings in the U.S. as those are currently furthest along in the legal process. Arbitration is typically the end of the road for these complaints unless an arbitrator rules that the dispute must be decided on in court. If that should happen, Nintendo will be faced with a potentially costly settlement or even a proper jury trial.
For the many Switch owners still affected by Joy-Con drift, Nintendo has offered a formal apology and continues to direct users toward its online form for free repair — though as the company notes, operations at its repair centers are currently limited due to the COVID-19 pandemic.
For those hoping for a faster solution, IGN’s wikis team has compiled a list of potential DIY fixes for Joy-Con Drift. You can also buy new Joy-Cons, though the cost is pretty steep ($80 USD) and there’s no guarantee the new controllers won’t be similarly afflicted.