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Judge tosses Joy-Con drift class action because of Switch’s pop-up EULA

Waluigi figurine shaking fist at a joystick removed from a Joy-Con
Enlarge / Replacing a drifting Joy-Con joystick is a lot easier than finding standing to sue Nintendo about it.

A potential class-action lawsuit over the joystick drift experienced by Nintendo Switch owners has been dismissed, with a federal judge ruling that Nintendo’s end-user license agreement (EULA) for the console bars such lawsuits.

In a filing from late November, but seemingly only recently noticed by games media, William Alsup, US District Judge for the Northern District of California, ruled (PDF) that two plaintiffs, both minors, were not able to sue Nintendo because setting up the Switch requires agreeing to a EULA that has arbitration and forum-selection clauses. The minors and their mothers were the original plaintiffs, but after an arbitrator ruled that the mothers couldn’t pursue a claim because their children had accepted the EULA, they attempted to refile the case, with the children as plaintiffs. Because Nintendo’s EULA requires a person to be at least 18 years old to sign it, the mothers argued, the children could not have agreed to it and should be able to pursue their case.

But Alsup ruled that the parents who purchased the console were the true owners and that they had failed to assign ownership to the children. Having already sent the parents to arbitration, the judge denied the plaintiffs’ request to amend their complaint and dismissed the case.

The minors’ case is one of many filed against Nintendo over drifting Joy-Con joysticks, which have been lamented since the console’s 2017 debut. Nintendo started quietly addressing the issue in mid-2019, offering free repairs and reimbursements for prior repairs. Nintendo President Shuntaro Furukawa apologized for drift during a financial Q&A in mid-2020, specifically “any trouble caused to our customers.” Furukawa added that he couldn’t respond “about any specific actions” because of a different class-action lawsuit, one still pending in federal court in Washington state.

The most likely candidate for Joy-Con joysticks drifting is their inherent design: They’re not built to last. Joy-Cons register movement when a small wiper inside the joystick module (potentiometer) moves across a small pad, changing resistance levels and altering the recorded voltage. Over time, the pad develops wear in spots, causing improper voltage readings and making Link or Mario or Harrier Du Bois wander offer in improper directions. You can go deeper into this issue with a video dissection by Spawn Wave (or a post I previously wrote for iFixit).

Meanwhile, drifting continues to occur. A 2022 poll by UK consumer group Which suggested that roughly 40 percent of Switch owners in the UK have experienced drift. Four out of five owners who contacted Nintendo received a free repair, but half of all owners simply bought new Joy-Cons instead. The consumer group also had an independent lab confirm that joystick slider pad wear was the drift culprit, although dust ingress through the Joy-Con may be a contributing factor. Nintendo responded to Which’s findings with a statement that the percentage of drifting joysticks “is small,” and that it has been making “continuous improvements” since the Switch’s launch.

Disclosure: The author has previously worked for iFixit. He has no financial stake in the company.

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