The lawsuit brought by a Chicago man displeased with the Xbox 360's overheating problems is due to be heard on January 10th, but Microsoft are trying to get it thrown out of court before it even begins. It seems that Robert Byers hasn't even contacted customer support about the problems with his own 360--and it's not even clear his 360 is malfunctioning. He may be bringing the lawsuit on the strength of others' complaints, which will make for an interesting argument in court.

In the motion to dismiss, Microsoft notes that "Significantly, Plaintiff omits the fact that his Xbox 360, purchased in November 2005, is still covered by a 90-day warranty, under which Microsoft agreed to repair or replace it, or issue a refund. In fact, Plaintiff does not allege that he contacted anyone at Microsoft about the alleged defect, let alone that Microsoft refused to honor the terms of its warranty. Moreover, Plaintiff does not allege that his Xbox 360 ever malfunctioned. He alleges only that "members of the class have experienced malfunctions" with their Xbox 360s - not that he has.