Game Over? What Nintendo’s Motion to Dismiss Means for Importers Facing Class Actions for Tariff Refunds

By Brett W. Johnson, Derrick Kyle, and Thomas Williams

On July 20, 2026, Nintendo of America, Inc. (Nintendo) moved to dismiss a proposed consumer class action filed in federal district court seeking restitution of International Emergency Economic Powers Act (IEEPA) tariff surcharges on popular Nintendo products.¹ The plaintiffs – a putative class of consumers who purchased Nintendo products while Nintendo’s IEEPA tariff-related price increases were in effect – allege that Nintendo passed its tariff costs on to consumers and would thereby obtain a double recovery: once from consumers and again from the federal government following resolution of its lawsuit in the U.S. Court of International Trade.² The complaint asserts claims for unjust enrichment, money had and received, violations of the Washington Consumer Protection Act (WCPA),³ and declaratory relief.

This consumer class action is just one of many against companies and importers that are alleged to have passed along tariff costs to customers (end-use consumers and other businesses), and its resolution could have far-reaching downstream effects on other consumer class-action lawsuits.

However, Nintendo’s legal arguments center on three features that distinguish its position from those of other importers facing parallel litigation: a unitary pricing structure that leaves no discrete tariff for plaintiffs to claw back, advance disclosure that made each purchase knowing and voluntary, and the discretionary nature of its products.

I. Nintendo’s Motion to Dismiss

Nintendo’s central legal argument in its motion to dismiss is that the class-action plaintiffs have no legal entitlement to the IEEPA tariff refunds. Moreover, Nintendo asserts that consumers received exactly what they paid for – consoles, games, or accessories – at an agreed-upon price, and that the plaintiffs are not entitled to rebates because of the “intervening legal developments related to tariffs.”⁴ Taken to its logical extension, Nintendo argues, the plaintiffs’ rebate theory could create precedent requiring “every business that raises a price to recompute its prices and repay consumers if some pricing assumption proves mistaken, which could include not only invalidated tariff duties, but also any input cost that falls.”⁵

Nintendo contends that the equitable claims for unjust enrichment and money had and received both fail because consumers purchased the products voluntarily, and that Nintendo transparently incorporated genuine, government-imposed costs into its pricing. Nintendo emphasized that consumers paid a “unitary purchase price” and that its pricing decisions did not include any direct pass-through of tariff costs to consumers.⁶

As to the WCPA claims, Nintendo argues that the plaintiffs did not suffer a “substantial injury” because they never claim the products were defective, not as advertised, or worth less than they paid. Nintendo distinguished itself from other importers subjected to IEEPA tariffs, stating that it imposed modest price adjustments on some products while bearing the cost of tariffs on others, including on its flagship console.⁷

Moreover, because Nintendo charged a unitary purchase price for its products, plaintiffs cannot show that any price increase offset the tariffs on a one-to-one basis, particularly given other fluctuating cost inputs such as labor, shipping, and memory. Additionally, according to Nintendo, the consumers’ alleged injuries were reasonably avoidable.⁸ Nintendo argues that, in contrast to price-gouging on certain goods during the COVID-19 pandemic, its products are not necessities for which the plaintiffs had no other viable options. The putative class made discretionary purchases of products that are available from many different sellers, and ready alternatives exist in the marketplace.⁹

Importantly, Nintendo filed its motion to dismiss contemporaneously with a separate motion to compel arbitration of the lead plaintiff’s claims. Nintendo contends that the lead plaintiff agreed to arbitrate twice, and that both agreements delegate questions about the scope of arbitration to the arbitrator. Nintendo’s motion to dismiss therefore reaches the lead plaintiff’s claims on the merits only if the district court denies arbitration.

II. Key Strategies for Importers

The district court has not yet ruled, and the motion may never reach the merits if the named plaintiff’s claims are referred to arbitration. But there are three features distinguishing this case from parallel tariff consumer class action lawsuits – each suggesting a step that importers of record and claimants may consider.

First, how tariffs were folded into products’ prices could prove decisive. Nintendo used a single, unitary purchase price that blended tariffs with other cost inputs rather than an across-the-board surcharge or line-item pass-through, and it absorbed tariffs on some products entirely. If the district court accepts that framing, no plaintiff would be able to isolate a discrete tariff within the price – unlike suits against importers that itemized tariffs or billed consumers dollar-for-dollar as a pass-through conduit, which would more readily support the “specific fund” theory behind a money-had-and-received claim. Absorbing future tariffs or input costs into unitary pricing, rather than a discrete labeled charge, may leave plaintiffs no specific fund to chase and protect against consumer tariff-refund claims.

Second, “voluntariness” may independently defeat the plaintiffs’ equitable claims. Under this theory, money voluntarily paid with knowledge of the facts (i.e., tariff impact) could not be recovered simply because the law later shifted, and a later refund would not be the sort of “unearned benefit” that an unjust enrichment claim is meant to remedy. That outcome would distinguish this case from suits premised on concealment or mistake because Nintendo disclosed in advance that tariffs were just one factor among others driving its pricing. Disclosing the cost drivers behind price changes ahead of time, as Nintendo did, strengthens the argument that any resulting purchase was knowing and voluntary.

Third, the ready availability of alternatives could foreclose the plaintiffs’ WCPA claim. Nintendo’s consoles and accessories are discretionary goods available from many sellers, not the pandemic necessities that let earlier price-gouging claims survive, so any alleged injury would be reasonably avoidable, and a price increase alone would not be a cognizable WCPA injury absent a product objectively different from or worth less than what was advertised. Importers selling discretionary goods, with advance notice of price changes and available substitutes, are better positioned to show consumers could have reasonably avoided any claimed harm.

Taken together, these features – unitary pricing, voluntary and informed purchases, and discretionary products with ready alternatives – are what may distinguish this case from the other pending tariff-refund consumer class actions. Importers of record and those claiming tariff refunds from higher-tier supply chain suppliers should evaluate the basis of the transactions underlying tariffs, review contract terms, consider individual state consumer protection laws, and communications strategies to determine potential liabilities. If such risk exists, developing a plan that is coordinated with legal counsel under the attorney-client privilege is important, rather than waiting for a future demand from customers or attorney general offices.