Banned Xbox User Slaps MSFT With Class-Action Suit

Disgruntled Xbox customer Ann Talyancich has filed a class action suit against Microsoft. Talyancich claims she was banned from Xbox Live after having an independent repairman fix her DVD drive on her Xbox. As part of her ban, as is conventional with all bans, Microsoft stripped Talyancich's account of her credits. Talyancich filed the lawsuit to not only get her account unbanned and have her points restored, but also to have similar done for those who got banned under similar circumstances.

Microsoft's latest terms of service strictly prohibits class action suits:

"You and Microsoft agree that any proceeding to resolve or litigate any dispute, whether in abritration, in court, or otherwise, will be conducted solely on an individual basis, and that neither you nor Microsoft will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you or Microsoft acts or proposes to act in a representative capacity."

Whether or not this filing will actually make it to court is interesting and proves a test to Microsoft's "no class action" policy in its terms of agreement. Microsoft isn't the only company out there to have a "no class action" policy. In fact, companies in the past have had similar policies, but courts have overruled them. Watch this space for more on this case.

Catherine Cai is a freelance writer whose work has appeared in Tom's Guide, Tom's Hardware, VG 24/7, RipTen, and The Game Fanatics. She has also worked as a lead producer for video game projects, a manager and lighting director for the stage, and a software engineer. Currently, she works as a Production Engineering Manager for Shopify.

  • mihaimm
    It's funny a TOS can forbid you to have class action suits. I wonder... is it legal to have a TOS that saying "if you open this box you are never allow to sue us"?
  • drwho1
    I can't see why it would be cause for M$ to ban anyone for getting their consoles fixed by someone NOT working with M$.

    M$ said:
    we want to make as much money from our customers as we can. so pledge to make a horrible console that will break so they have to send it back to us "for repair" for a FEE

    That is a horrible mentality, users should be able to repair their consoles on their own or have their own choice of technician to repair their own consoles.

    None of this should be in any way an excuse for M$ to ban an user.

    Now if she or anyone would "fix" their console to play pirated software/games then that's another story.
    But even then I think that the penalty should be End of Warranty and NOT a ban from a service that they PAY for.

    PS: I'm NOT a 360 user, I do my console gaming on PS3, but this is NOT fair for 360 users.
  • jaquith
    No TOS can superseded law, so if the TOS is deemed to be unlawful then it will be very interesting to watch this lawsuit.
  • back_by_demand
    Funny, the latest TOS states that but she agreed to abide by the previous TOS
    Unless they un-ban her she will be unable to agree to the new TOS, therefore in order to stop the class action suit they should just remove the ban and get her to tick the box
  • Despite what they may put in the TOS, there are certain inalienable rights which take precedence over anything you could possibly sign. For instance, microsoft could not enforce a clause which states "if you use this service you agree that your sister will be raped once per month by a microsoft employee". You cant just sign your life away because you agreed to use a product.

    As far as I know, class action suits are actually one of these. All microsoft can actually uphold is that you agree to TRY arbitration first. Obviously the goal here is to exhaust the user since arbitration would require you to fly to Microsoft's headquarters and set up a discussion with their lawyers within their jurisdiction. BUT, if you actually did this, and failed to reach an agreement, THEN you could sue.
  • o_tipper_x
    MS can be horrible to deal with. This is another example.
  • Onus
    Microsoft is so blatantly wrong here, there must be missing details. Assuming the repair was legitimate, a simple call to M$ (and maybe a faxed repair receipt) ought to have fixed this. Did the woman's kid ask for help playing a pirated disk? One side or the other probably needs to be slapped, except that poo splatters.
  • wiyosaya
    Micro$oft is God. Thou shalt not have no other Gods before thee. Thou shall not stick up for thou fellow citizens before Micro$oft. Micro$oft cannot be questioned because Micro$oft can do no harm. Micro$oft rules the world; the world does not rule Micro$oft.
  • zeratul600
    i can't believe that in USA they can force you to sign a contract where you give up your rights! that its just wrong dude!, hey by signing this you become our slave, also we can have sex with you whenever we want to... that doesn't seem right!!!
  • choji7
    This just depends of the the courts deem the TOS to be superseding the law. For instance, a TOS can't say something like "you agree not to sue us if we murder your family". You can agree to that, but you can sue the company and win.

    TOS are simply agreements, they aren't made to bypass the law or people's rights. Microsoft has amazing lawyers though, so they'll be safe.