Microsoft hit with lawsuit over Fall Update woes

You know, major manufacturers should just start handing out class action lawsuit form letters and business reply mail envelopes with their various electronics, just to make these things easier for everyone involved. A mere year after Microsoft got hit with its first major class action lawsuit regarding the Xbox 360 -- one which was quickly and thoroughly trounced by Microsoft legal -- a certain Kevin Ray of California is drumming up his own, this time in regards to that Xbox-destroying Fall 2006 Update. Unfortunately for Microsoft, Kevin has a bit more traction with his lawsuit, given the fact that the update has bricked his own Xbox 360 (last time around it was unclear if the accuser had even encountered any of the problems listed in his suit), and that Microsoft is refusing to replace his console. So instead of forking over $140 for the repair, Kevin is seeking $5 million in damages -- pain and suffering if we ever heard it -- along with free repairs for all 360s damaged by the update. Some of the wording of the suit is a little shaky, such as a claim by Ray's lawyer that "a Google search of the terms 'xbox 360' and 'brick' or 'bricking' shows over 15,000 results," but there does seem to be a lot of corroborating evidence for the basic claim of the Fall Updating damaging Xbox 360s, so if Microsoft doesn't come up with a fix quick, or start replacing affected boxes on the double, they could be facing a decent bit of hurt from Kevin and co.

[Jonathan Zencovich @ Dec 8th 2006 6:33PM]

I think that a lot of these lawsuits are going way over the edge. You know what I should do? Buy SOME product, and WHEN (not if) it goes wrong, I should sue!

You can sue for an unlimited amount of reasons, and just about any product will have a defect or "feature", it's just a matter of finding it.

This is a waste of time and frivolous, absolutely absurd!

--Jon

[Jake @ Dec 8th 2006 7:46PM]

If Microsoft's firmware update made his console unusable, then they should have offered to replace or fix it, unless he modified it in some way which contributed to the update rendering it unusable. It's as simple as that.

To people saying he is asking for too much, I completely disagree. Why should he only be entitled to a replacement? They already refused that. If a customer has to go through the legal system to remedy a situation where the company's actions are, frankly, indefensible, I think a message needs to be sent; if you engage in this type of practice you'll be punished. And not only for the amount that you should have had to pay in the first place.

[CharlieX @ Dec 8th 2006 6:38PM]

we searched on Google for the word "glove" and the words "ice cream" and obtained these results:
Glove: 14,400,000
Ice Cream: 32,600,000

[Eddie @ Dec 8th 2006 6:40PM]

I couldn't disagree with you more on this one, Jon.

This problem was directly caused by Microsoft. This is a fairly large problem. I know quite a few people who had their Xbox's bricked.

For example:

Would you like it if someone sold you a computer, then 2 months later, someone forcefully updated your computer, and this update made your computer unusable. Then, that someone who installed the "update" said that you had to give them money for them to fix it for you.

How would you like it?

[brian @ Dec 8th 2006 6:47PM]

Eddie,
I had thought that he had modded his 360. That would void any warranty.

Even if he is right.... FIVE MIL?!?! Someone's a tad greedy this holiday season.....

[rainking187 @ Dec 8th 2006 9:45PM]

"For example:

Would you like it if someone sold you a computer, then 2 months later, someone forcefully updated your computer, and this update made your computer unusable. Then, that someone who installed the "update" said that you had to give them money for them to fix it for you."

Yeah, that's essentially extortion. And to the people saying it's not that widespread, it doesn't matter. If Microsoft damaged just one console with their upgrade and then refused to fix it they're in the wrong. If this lawsuit does get thrown out though it'll be for the ridiculous $5 mil thing.

[Eh @ Dec 8th 2006 6:44PM]

Microsoft will never win this. If they try to fight it then its going to result in extremely bad press for the 360 when they need all the good press they can get to fight the Wii and PS3. And if they DO actually win this through some miracle loophole? All future Xbox systems will be stamped with a permanent "buyer beware" sticker.

They'll probably change their policy on repairs before the media can do too much damage.

[IceHedge @ Feb 19th 2007 2:40PM]

Actually, the press has taken this lawsuit quite light-heartedly, defending Microsoft by stating there's 'nothing new under the sun,' referring to the abundance of lawsuits against Microsoft, or more specifically, the lawsuit involving the 360 just a year ago.

My 360 bricked due to the update. I'm currently calling Microsoft and finding ways to become involved in defending the man in California, because not only have I had it MS's poor hardware manufacturing, but I've had it with big corporations making ME pay for THEIR faulty products.

[KHugh @ Dec 8th 2006 6:45PM]

I've only seen the term 'brick', as in I bricked my 360, in relation to modding the DVD drive. on the forums you see, "I tried to flash my firmware and bricked my 360 drive, please help me fix it, Hax0rs?? :

[Andrew Terry @ Dec 8th 2006 6:47PM]

It's not just the Fall Update.. the "1080p Update" that was pushed out at the end of November is also bricking consoles. Major Nelson's blog was getting a lot of comments on this subject - so many that comments have now been closed. But still no word on a fix.... Guess I won't be playing GoW on Christmas morning!

[Eddie @ Dec 8th 2006 6:50PM]

No modding. The Fall update bricked many unmodded consoles. It's completely Microsoft's fault.

[The Jeremy @ Dec 8th 2006 7:01PM]

How many results turn up for Xbox360+Brick using Microsoft Search Live?

I bet much less than using Google. :)

[Sam @ Dec 8th 2006 7:01PM]

This lawsuit is ridiculous. The bricking problem is not that severe, and not that widespread. Google with the syntax "Internet Echo Chamber" and you will find out why. One person reports a problem, it gets posted on every blog, and suddenly it sounds like 50 people reported the problem. I updated my 360, and everyone on my friends list did aswell, and none of them had any problems. It's absolutely guaranteed that an update is going to cause problems for somebody somewhere, and in this case maybe it happened to the guy that is bringing the lawsuit, but class action lawsuits were designed so that hundreds if not thousands of people could come together with their claim and avoid killing themselves with their own personal lawyer fees; not for one guy who is a little pissed off to do so. More than likely this will end with a fixed Xbox 360, a dropped lawsuit, and the whiner getting on with his life.

[Bill @ Dec 9th 2006 7:33AM]

wrong dude. Mine died last night, December 8th. No echo here. A dead 360- YES!

[Notung @ Dec 13th 2006 5:00PM]

That is really absurd..

How do you possibly be sure about that?. I was a happy owner since its release, the console was fine for many months, and after the update, bang!

I don't call that a mere coincidence. It is a fact, in a undisclsed number, some of us are really sad to have a broken console at home while you nerdly google search terms to infer what?

Give us a break, smart guys!

[bxbailey @ Dec 8th 2006 7:03PM]

Once again good thing this wasn't an issue with Sony's PS3.

[... @ Dec 8th 2006 7:04PM]

I don't know, but it seems a little fishy that they refused his console... The only thing I can think of would be that he modded in it some way... In that case it is his own damn fault...

Oh noes!! The firmware update on my xb0x fux0red it m$ won't take it back since I reflashed the dvd drive to play pirated games!!!!!!!111111oneone

BTW, "kevin ray stupid" turns over a million hits on google...

http://www.google.com/search?hl=en&lr=&rls=GGLG%2CGGLG%3A2006-28%2CGGLG%3Aen&q=Kevin+Ray+stupid

"kevin ray pirate" turns up even more...

http://www.google.com/search?hl=en&lr=&rls=GGLG%2CGGLG%3A2006-28%2CGGLG%3Aen&q=Kevin+Ray+pirate

I think you get the idea...

[RTFM @ Dec 8th 2006 7:07PM]

Kevin Ray needs to go ahead and stop wasting good O2. Seriously at most hes entitled to a refund or replacement.

I would love to see a MS counter-suit just to cover legal fees to defend this farce.

Oh, well. Its the New American Dream, something for nothing (no chicks for free yet ...)

No wonder only large corporations dare to innovate and market new products. Cest la'vie.

[myscrnnm @ Dec 8th 2006 7:12PM]

Serves him right that Microsoft isn't doing anything. He should have known what he was getting into when he chose an Xbox.

[Gary T @ Dec 8th 2006 7:15PM]

I'm working on a fairly large site now and I have no intention of allowing unaudited posted of comments. There's no way in hell I, or those that maintain the site with me, are going to allow the commentary to be hijacked by special interests (read: Microsoft representatives, Objectivists, or anti-government-regulation neoconservatives).

The comments on this story illustrate the need for strong editorial control of what comments make it onto sites.

[adam @ Dec 8th 2006 7:23PM]

gary, there is a little thing called free speech. you censoring comments is denying people their rights promised to them in the first ammendment of the constitution.

[Jeff @ Dec 8th 2006 7:23PM]

I hope he wins. The Xbox 360 is a piece of junk. Several people I now have been through more than one. The update also bricked my console. If you do any research at all, you will find that this is a widespread problem that MicroShaft is trying sweep under the rug. To damage someones property and charge them to fix it is downright criminal. Some companies never change.

[SOCOMRAIDER @ Dec 8th 2006 7:32PM]

They should start by removing your comment for not sticking with the topic at hand.

Back on topic:

Even if this happens to a few consoles, they should still replace or repair the consoles. They should take all affected consoles in, then require you to have a credit card on file. Then determine from there if any of the boxes are modded boxes. Any modded boxes will result in a call from Microsoft with the following options: be sent back to the owner with a bill for shipping and charged onto the credit card, or pay the full disclosed $140 to fix it. If they do indeed find it is an un-modded 360, fix it or replace it.

[SOCOMRAIDER @ Dec 8th 2006 7:40PM]

Comments can be determined on a per company basis. As you will see on certain sites obviously remove posts due to vulgar comments. It all depends if they have a user agreement you have to say "yes" to when you join the site. This gives the website complete oversight on comments posted.

After all you can see how many posts/comments were deleted by CNET (that has a user agreement) on the James Kim story.

[Chuck @ Dec 8th 2006 8:29PM]

The update bricked your console? Did you call Microsoft? Did they want you to pay to fix it? That's the part I don't quite believe about Ray ray's suit. Oh, and is it modded?

[Jeff @ Dec 11th 2006 3:48PM]

I'd like to recant my statement above:

I've been having delusions lately. I really had no right to say these things. I have no evidence to suggest that this problem is widespread nor being swept under a rug, I just thought they were. I really don't think MS is doing anything wrong, and I don't know anyone who has gone through more than one console, I just know of them.

[Brian @ Dec 8th 2006 7:38PM]

If you live in the UK you get the repairs free for 1 year under warranty but in the US it is 90 days which is why so many people in the US are upset. Mine died but was replaced (3 weeks later)

[Brian @ Dec 8th 2006 7:42PM]

wow 5mil huh. That damn 360 must have also trash talked his momma, burnen down his house, and drove off with his car.

while he's at it, he should sue the clouds for raining on his parade when he loses.

[Joe Shmoe @ Dec 8th 2006 7:43PM]

First amendment doesn't apply here. Engadget is private property they can do whatever they like with your comments. Regardless editorial moderation over user comments is stupid. Half of the reason I, and doubtlessly many others even come here are the comments left by readers. A little defamation, a little praise, tons of astroturfing, it goes along with the territory.

[Gary T @ Dec 8th 2006 7:43PM]

adam: Websites in the US aren't bound by free speech protections in the US Constitution, and not even in principle if the site operates outside of the US.

SOCOMRAIDER: The problem is that Engadget doesn't agree with me. Too bad for you, I guess...

[smartorange @ Dec 8th 2006 9:07PM]

This is from http://www.engadget.com/2006/12/08/microsoft-hit-with-lawsuit-over-fall-update-woes/

Xbox 360 Update Bricking Consoles: Now Fixed
If you have been holding off on connecting your Xbox 360 to the Internet for a few days due to fears that the update will only cause you problems, you were probably very smart, but now you can go ahead and connect up, as Major Nelson reports the problem that was bricking consoles has been fixed.

An updated version of the Fall Update is now available on Xbox Live which has elminated issues relating to new or refurbished consoles failing after applying the Fall Update. Users who have already applied the Fall Update and are seeing an error message should call their local Xbox Support telephone number. If you already have the update, you will not be prompted for another update.


You know I never here stuff this skewed towards Apple. iTunes 7.0 has killed my itunes video playback. They have NEVER created a fix for this. I have tried all thier resolutions. They aren't gonna do anything for me, but I guess its OK becuase they are Apple.

This article seems 2 minutes too late.

[Scott @ Dec 8th 2006 8:23PM]

How about a google search on "I just dropped a brick" (in my toilet) Results: 2

[Zo @ Dec 8th 2006 8:46PM]

These comments make me laugh!

The 5 million is just for show -- what you say you want and what you get are two different things.

If the Microsoft Update did brick the machine, MS should repair it at no cost. Hopefully MS will learn in a newer version of the xbox that sh!t happens and they include a way to undo the last update. In the end, the guy is only entitled to make him whole -- which means at worst case a new Xbox 360. The burden of proof will be on this guy and the lawyer to repro the problem for the court otherwise it is just he-said-she-said. If this guy did mod the Xbox360, he will have his own trouble under DRM.

Myself and the 10 other people I know with an Xbox 360 all applied the most current updates without any issue. I believe there are others who have had problems but the issue is not as wide spread as people make it out to be.

[Michael @ Dec 8th 2006 8:53PM]

Microsoft's lawyers will have a field day with this. I feel bad for the guy that bought a 360 that got bricked, but I doubt there's thousands, much less hundreds of people affected by this. A class-action suit typically acts in the interests of numerous people, not just a few.

That being said, Microsoft should have fixed his console, assuming it's not modded (only an idiot would sue M$ when they had a modded xbox). After this lawsuit becomes more widely known, I would be that Microsoft will do the right thing and begrudgingly fix his system :-p

[Aaron @ Dec 8th 2006 8:54PM]

Damages?! please! if the xbox exploded and the disc came flying out and took your arm or leg off, then that would be damages. pain and suffering?! get over it!

[Molly C @ Dec 9th 2006 4:12AM]

smartorange, rather than whining about Apple's iTunes 7 (which was indeed bug-ridden), do something about it. Sue Apple for 100 million dollars!! :-)

[keith waddington @ Dec 8th 2006 9:23PM]

stupid comment: itunes 7 killed itunes 7. haha. And thats the same as xbox turning into a brick.

If your computer cannot handle video playback through itunes 7, it's obvious you need to get a new computer. Oh and try to pay more than 299 with discount coupons on your next one!

Better still, get a Mac.

Now on topic (kinda)
it's hilarious that most of the people complaining about MS in this thread are sitting in front of a MS Winnows machine!

Now tell me again you folks: why do you by PC compatible computers and lock yourselves into a single OS (linux notwithstanding) made by a monopolistic enterprise with all the charming characteristics of a retarded school yard bully? Tell me please.

keep smiling (or at least grin and bear it!)
waddo
http://www.waddo.net/

[Matt @ Dec 8th 2006 10:57PM]

A few things.

-He said iTunes 7 killed iTunes video playback, not iTunes 7 killed iTunes 7.

-His computer was obviously able to handle video playback before he "upgraded" to iTunes 7.

-He said nothing about the specifications of the computer. How you came to the conclusion that he is using some cheap computer is beyond me.

-Even if he was using a "$299 machine with discount coupons", are you suggesting that it wouldn't be capable of playing back video? Funny that even the cheap computers you'll find are often perfectly functional machines.

-Yes, because we all know that using an Apple computer is the solution to all the problems in this world, including the war in Iraq, terrorism, and vaginal discharge.

-You're never on topic anywhere in your entire post.

-Again, you're assuming everything. Also, you should know that in terms of the corporate structure of Microsoft the people that are working on developing and supporting Windows have very little to do with the people developing and supporting the XBOX and associated products. The only thing they really have in common is the Microsoft logo.

-This comment is really highlighting the extent of your stupidity. Up untill reciently, the only operating system officially supported by Apple was Apple's OS itself. Now the total number of officially supported operating systems by Apple's hardware is 2. However when you buy a "PC", you are essentially open to any OS that was compiled for x86, not just Windows. The only reason the "PC" can't run Apples OS is because Apple makes it illegal.

[evilfixx @ Dec 8th 2006 10:10PM]

Well, time for me to point out that the Xbox has been around for a year and they're still pissing people off with these problems... I want to see if Sony has any of these issues in a year. If M$ is making a profit off of their systems, as they say they are, then they should be able to replace any if problems crop up.

[Juaquin @ Dec 8th 2006 10:26PM]

I think the $5 million is bullshit. Ok, so they bricked your 360. They should have to fix it, free. That I can understand. And they should even throw in a free game or something for the inconvenience. But $5 million because you went through a little inconvenience? No way.

[Sarkus @ Dec 8th 2006 10:27PM]

I guess there's something terribly wrong with my experience. Why the hell did I buy extended warranty from BB when I could just pray for my unit to die and sue MS for millions.

[unL33T @ Dec 8th 2006 10:48PM]

I think if he's suing for $5 million it should go to some kind of account and anyone that has had their console brick from the update should get a certain payout for the inconvenience. It shouldn't all go to the guy that started the suit.

Otherwise I think the suit is completely valid.

[FrankTheCrank @ Dec 8th 2006 10:59PM]

HAHAHAHAHAHAHA....

Good thing I didn't get one.

I'll just sit back and play my PS3...and PS2..

Life is good.

[Sam @ Dec 8th 2006 11:24PM]

I love it how if you post in favor of a microsoft product, any product, be it windows, the Xbox, etc, you are immediatly some sort of Microsoft employee or troll. I got the original Xbox very late, so late infact that I bought it to play Halo 2. I use XP, but so does the majority, and I now own an Xbox 360. If everyone with this set of circumstances were to be an employee of microsoft, Microsoft would gain a few million employees.

This lawsuit is a very thinly veiled attempt at milking some money out of Microsoft. The bringer of the lawsuit probably got one of those "You don't pay if we don't win your case" lawyers to avoid paying them (obviously he's a cheapskate) unless he hits the jackpot with microsoft.

To summarize 3 pages of posts; His console was probably modded, the security devices taken off, or some other combination of things that are his fault. You break your warranty by modding, you pay the price when something goes wrong. Tough luck.

[Andir3.0 @ Dec 9th 2006 12:05AM]

I love the comments here.

If it were Sony getting sued:
--------------------------------
YeAh! StIck iT to thE DeVil so PhoNy!!
Yeah, eat that!
Where's the crying Sony fanboy's now?? Huh!!

When it's Microsoft getting sued:
--------------------------------
Stupid user.
There's no call for this.
He's just being greedy.
My system and 50 other systems I've personally used are all fine.

Because we all know that out of the ~8 million units sold, 5 million of those are in your neighborhood and you happen to know each and every one of them personally. Of the ~.5 million PS3s shipped, at least 300,000 of them are in your neghborhood as well, and they are catching on fire left and right and eating your babies. Oh, and you have a game developer friend who told you the 360 is "total pwnage!" and the PS3 "tot41ly 5ucks!".

Nice double standard. Just an observation. Support the Microsoft empire if you must, but don't come crying when the smoke clears and your paying for it in the end.

[Brandon @ Dec 9th 2006 2:18AM]

Exactly right, I can't understand why these people are upset at this guy... If it happened to me, and MS refused to fix it, I'd see about doing the same thing.

What? We're supporting the mega corperations now? Come on all you hipsters, you're supposed to be... you know PROGRESSIVE!

[CyberWuff @ Dec 9th 2006 1:18AM]

1) My roommate has an unmodified XBox360 which was working fine since he purchased it in March. Right after the Fall Update, it started freezing up in games, sometimes within minutes. There are many people with unmodified XBox360s who are having this issue or the "3 Red Lights"/hardware failures right after the update was released. (Microsoft is saying this is simply coincidence). So - don't assume that this is just "people who have modded consoles".

2) Even if it's a small number of consoles experiencing problems, Microsoft shouldn't be charging people for repairs caused by a bad update. Really, if there was a way to revert to an earlier version of the firmware (for those systems that at least get to the dashboard), that would prove whether it was "a coincidence" or not... but Microsoft isn't making that possible.

3) $5M probably is some arbitrary "large number", like in most suits, where the final settlement is much less. Really, I think most people affected by this issue would just be happy with a free, quick repair (or new console) and a "mea culpa", with a change in their repair policies stemming from updates. It's probably unlikely, but many console owners feel they have to at least try and put some pressure on Microsoft for what comes across to them as callous behavior towards their users.

4) European gamers enjoy at least a 1 year warranty on consoles, while in the US and Canada, we have only 90 days standard. This really should change - and better policies enacted on electronics that can be updated past the warranty period by the manufacturer.

[Bricked Console @ Dec 9th 2006 1:36AM]

This guy must have been smoking something. $5million dollars? If your console is bricked, don't look a gift-horse in the mouth. Mine has been bricked for about a week, and while I was pissed at first, I kind of like it now. It grows on you, just give it a chance. Having said that, I'd still like to have a working 360, but cannot justify $140 after just paying $400 in August.

One bricked 360 is still better than a PS3.

[Monte @ Dec 9th 2006 3:36AM]

Perhaps the more lawyer-like folks out there can correct me if I'm wrong, but, since this is a *class* action suit, the $5M dollars would not simply go to the person initially filing the suit, but would instead be split among the entire *class*. Depending on the size of the class and the actual final settlement, if any, each member of the class could end up only receiving a fraction of the cost of a new 360.

The figure may also legal fees, which would likely be quite a few bucks if they end up having to battle this out in court. A large team of lawyers may be necessary to go up against the army of a legal team I'm fairly sure MS has at their disposal.

[tomdoz @ Dec 9th 2006 11:54AM]

Monte is right, the $5 mil would be for the whole class, not the one guy. You can get a copy of the actual suit from this post:

http://blog.seattlepi.nwsource.com/microsoft/archives/109471.asp

This is what it says about the monetary damages: "Awarding Plaintiff and the Class damages for Defendants� breach of contract in an amount to be determined at trial but not less than an aggregate amount in excess of $5,000,000;"