Though Nintendo may currently be winning the state-side court case regarding Team Xecuter, they're not doing as well in Germany. A legal dispute that has been ongoing since 2018 has reached a conclusion, and while Nintendo initially won the case, the ruling has been overturned. The court case was centered on Nintendo's eShop pre-order policy; originally, customers were completely unable to cancel any pre-orders made on the Nintendo Switch eShop. Two European regions--Norway and Germany--didn't find the policy agreeable, due to the fact customers weren't protected after making irreversible pre-orders of a product that wouldn't be immediately usable.
In 2020, following the legal complaint, and despite its victory in court, Nintendo changed its policy to allow customers to refund a pre-order so long as the game is set to launch in more than 7 days. However, both the Norwegian Consumer Council and Germany Consumer Organizations appealed the decision, resulting in the court changing its ruling in their favor. The fact that customers can purchase and receive a pre-load of a game that is unusable until launch, is what the German court took issue with. It's currently unknown as to when or whether Nintendo will be changing its pre-order policy following this ruling.
Nintendo had already offered video games for download in its e-shop before the official release date. The download usually included a software-comprehensive "pre-load" of the game as well as an icon displayed on the game console. The unlocking of the game took place via update only on the official start date. Such online purchases can usually be revoked within 14 days without giving reasons.
However, Nintendo had excluded the right of withdrawal and relied on a legal exception. However, the prerequisites for the right of revocation were not met, as the download made available after the pre-order did not yet contain any usable game. Until the release date, the game is worthless for the buyers and the contract of Nintendo is not fulfilled in any way.
...The Regional Court of Frankfurt am Main had dismissed the vzbv's action at first instance. With their appeal to the Higher Regional Court of Frankfurt, the consumer advocates have now been successful. At the hearing, after discussing the legal situation, the judges had advised Nintendo to recognise the vzbv's claim for injunctive relief as justified. The company complied with this. In the acknowledgment judgment, the court upheld the vzbv's action in its entirety. As is customary in such judgments, the acknowledgment judgment does not contain any grounds for decision.
Source (Translation courtesy of NintendoLife)