United States District Court, N.D. Illinois, Eastern Division
JAMES MAHER, individually and on behalf of other persons similarly situated, Plaintiff,
MICROSOFT CORPORATION, Defendant.
MEMORANDUM OPINION AND ORDER
B. Gottschall United States District Judge
Microsoft Corporation (“Microsoft”) operates a
service called Xbox Live, which works in conjunction with its
Xbox 360 video gaming console. The amended complaint
(“AC”) describes Xbox Live as “an online
multiplayer gaming and digital media delivery service.”
AC ¶ 12, ECF No. 21. The plaintiff, James Maher, claims
that he and other similarly situated individuals he would
like to represent in a class action, see Fed. R.
Civ. P. 23(b)(3), do not get their money's worth from
Xbox Live because Microsoft cuts them off the service without
refunding them for periods lasting between one and twenty-one
days. Microsoft has filed a motion to compel Maher to
arbitrate his individual claims under its Master Services
Agreement (“MSA”). ECF. No. 24.
reviewing the parties' initial briefing, the court
ordered them to answer four questions. ECF No. 35 at 1-3. The
parties have supplemented the record with evidence and
argument. For the reasons discussed below, the court grants
the motion to compel arbitration.
signing up for Xbox Live's Silver level is free, playing
with others online and other premium features requires a
prepaid Xbox Live Gold subscription. Decl. of A. Holbrook
¶ 2 (“Holbrook Decl.”), ECF No. 26.
Microsoft sells Xbox Live Gold subscriptions for one-,
three-, six-, and twelve-month terms. AC ¶¶ 14-15.
People can sign up for Xbox Live Gold using a credit card, or
they can buy a prepaid subscription card like the one at
issue here. Holbrook Decl. ¶ 3. A consumer buys either a
physical card or downloads one and then enters a 25-character
“prepaid code” (a protective layer must be
scratched off to reveal the code on physical cards) printed
on the card into the Xbox 360 console, the Xbox.com website,
or the Xbox Windows 10 app to redeem the subscription.
See AC ¶¶ 16-18; Holbrook Decl.
circumstances under which Maher purchased the subscription
that is the subject of his claim were not initially clear. In
supplemental briefing, Maher represents that in March 2016 he
bought a twelve-month subscription card from a Best Buy store
in the Chicago area. ECF No. 38 at 10. His son redeemed the
card's code using his personal Xbox Live account, AC
¶ 22, but according to the complaint, Microsoft
deliberately interrupted his Xbox Live service, effectively
locking him out of it, on several occasions during the
ensuing year, see AC ¶¶ 24, 33.
brings claims under the Illinois Consumer Fraud and Deceptive
Business Practices Act, 815 Ill. Comp. Stat. 505/1 et
seq., for unjust enrichment, and for conversion. AC
¶¶ 47-68. He proposes to represent two classes of
Illinois purchasers of Xbox Live subscription cards, one for
his ICFA claim and one for his conversion and unjust
enrichment claims. See Id. ¶¶ 36-37
(proposing class definitions).
The Prepaid Subscription Card
set forth the full text of both sides of the prepaid
subscription card, which he alleges is typical of
Microsoft's cards, in his amended complaint. See
AC ¶¶ 27-28 and the images therein. The card does
not explicitly mention arbitration or the MSA. See
Id. Leaving out system requirements and Microsoft's
address, here is what the card's back says:
*Games and media content sold separately. Additional
subscriptions and/or requirements apply for some features.
Multiplayer between Xbox One and Xbox 360 not supported. For
features requiring Gold, see xbox.com/goldfeatures. Free
Games Offer: Paid Gold members only. Active Gold membership
required to play redeemed Xbox One games. Kinect and/or hard
drive required for some games. Some restrictions apply. See
TO REDEEM CODE ONLINE:
Have a Microsoft account or Xbox Live profile? Simply log in
to your account on xbox.com/redeemcode and enter the 25-digit
Need an account? Go to xbox.com/live, follow the steps to
create a new account, then enter the 25-digit code.
For more information on how to redeem codes on your Xbox
console, visit xbox.com/howtoredeem-console.
CARD HAS NO VALUE UNTIL ACTIVATED AT ...