Update — Class Action Against Microsoft About Xbox LIVE Points
Welcome to Washington! The state where litigation against Microsoft Corporation goes to die.
Back in January, Siouxsie blogged about a new class action lawsuit against Microsoft. The case was widely reported by the mainstream media to be about Microsoft’s fraudulent use of its Xbox Live point system.
At that time, Siouxsie pointed out that the complaint lacked any allegations to support such a claim. The complaint instead alleged only that Samuel Lassoff, the named plaintiff for the proposed class, never received complete downloads of games for which he had paid. Siouxsie also warned that Mr. Lassoff should not continue as both the named plaintiff and the attorney in the case.
Since then, plaintiff/attorney Lassoff has twice amended the complaint, completely changing the substantive allegations.
Mr. Lassoff also removed himself as named plaintiff, and substituted an individual who is a resident of California.
But apparently, Mr. Lassoff failed to realize that Microsoft has a forum selection clause in its terms of use agreement. Mr. Lassoff filed the case in Pennsylvania (where he lives and is licensed). But the terms of use agreement states that all disputes regarding Xbox Live are to be litigated in Washington state. Oops. And so Microsoft filed a motion to dismiss. Microsoft argued that there was no good reason why a California resident would not be willing to litigate the case Washington over Pennsylvania.
Rather than attempt to counter Microsoft’s motion, Mr. Lassoff amended the the complaint for the second time and substituted a Pennsylvania resident for the California one. Mr. Lassoff’s substitution is an obvious and blatant attempt at forum shopping. Mr. Lassoff probably would like to keep the case in his home state of Pennsylvania because that is where he lives, and is licensed to practice law. If the case is transferred, Mr. Lassoff will incur greater travel and litigation expenses. Plus he will have to hire local counsel (and that means either paying their hourly rate or (more likely) agreeing to divvy up any fees in the unlikely event of a victory).
On March 16, and in response to Mr. Lassoff changing the named plaintiff again, Microsoft filed another motion to dismiss or, alternatively, to transfer the case to Washington.
Siouxise is no fortune teller, but she predicts that the court will likely send the case to Washington state. And if that happens, this will likely be the end of the case. Game over.
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Wow. I wonder if Mr. Lassoff tells his clients that it takes him two or three tries at drafting a complaint before he gets it right. I think it is a bad sign that the complaint has been amended so many times.
[...] Fast forward a few months, and Mr. Lassoff has amended the complaint several times to avoid dismissal. Siouxsie wrote about the amendments at this link. [...]
Update — Class Action Against Microsoft Over Xbox Live Point System « Siouxsie Law said this on April 13, 2010 at 3:06 pm |
[...] Siouxsie previously blogged about this case here and here. [...]
Xbox LIVE Points Class Action Dismissed « Siouxsie Law said this on November 16, 2010 at 4:13 am |