X-Box suit moves forward with two fewer counts

Amelia Flood Sep. 2, 2009, 2:16pm

A suit against Microsoft over alleged flaws in one of the company's video game consoles will continue to move forward in Madison County.

At a hearing earlier in the week, Madison County Circuit Judge Daniel Stack denied Microsoft's motion to dismiss in its entirety.

This is the second complaint filed in the suit. Stack dismissed the original suit last month but gave plaintiff Jason Johnson leave to file an amended complaint.

The amended complaint was filed in August.

Johnson is suing the company for alleged defects in its X-Box 360 video game console. Johnson alleges the company sold the product knowing it scratched video games and made them unplayable.

He is seeking damages of $50,000 and costs. Johnson is seeking damages from the Washington-based company's alleged violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, negligence, breach of implied warranty and strict product liability.

Microsoft's attorney Robert Shultz argued that the complaint failed because Jason Johnson had received the X-box as a gift from his wife. He argued that Johnson did not have the standing to sue Microsoft.

Johnson's attorney, Emily Johnson, argued that Illinois law does give Johnson the standing to sue the company under the state's Consumer Fraud Act because it applies to "all persons" who may have suffered damages due to the transaction.

Emily Johnson had filed a motion for sanctions against Shultz on Sept. 1 for allegedly misrepresenting the facts in a case he used to support his argument.

Stack denied that motion.

At a hearing Wednesday, Stack had indicated he would strike the strict liability and negligence counts from the suit, but the order he entered indicated all counts would remain intact.

Microsoft has 21 days from Sept. 2 to respond.

A case management conference is set Oct. 28.

The case is Madison case number 08-L-1141.

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