With a Wii U at least, there's a clause in the license agreement that you waive your right to sue unless you send written notice.
1) protection of intellectual property rights (by either party)
2) small claims court
So if you just want your money back for your games it shouldn't be a problem to get it.
The exception for intellectual property claims is perhaps more interesting. Nintendo insists on stacking the deck and forcing anyone they've screwed to individually go through their rigged kangaroo court(1), except when enforcing their own intellectual property rights. I wonder how effective they would be pursuing pirates with mandatory binding arbitration, which the pirates haven't agreed to in any case, rather than filing DMCA complaints.
Perhaps though, if you've purchased licenses to their games and now you can't play them, that could be considered to be an intellectual property related dispute: interference with your right to use your legal licenses of their intellectual property.
(1)Not hyperbole, mandatory arbitration clauses are patently unfair and should be illegal, or legally made to have the effect of optional arbitration clauses.
If you decide to skip all that crazy talking-it-out nonsense and take Nintendo to small claims court, you pretty much deserve to lose your filing fee and time screwing around with the courts.
If that's the case will it hold up?