The lawsuit was filed by Chimicles Schwartz Kriner & Donaldson-Smith (CSK&D)—the law firm which brought the first class-action lawsuit against Nintendo over Switch Joy-Con drift—on February 12 in the US District Court for the Southern District of New York.
The action was brought against Sony by Virginia-based plaintiff Lmarc Turner, “individually, and on behalf of all others similarly situated”.
The suit, which accuses Sony of “unfair, deceptive, and/or fraudulent” business practices resulting in unjust enrichment, alleges that the DualSense controller is defective.
“Specifically, the DualSense Controllers that are used to operate the PS5 contain a defect that results in characters or gameplay moving on the screen without user command or manual operation of the joystick (‘Drifting’ or the ‘Drift Defect’),” it reads.
It claims that “Sony is—and at all relevant times has been—aware of the Drift Defect through online consumer complaints, complaints made by consumers directly to it, and through its own pre-release testing.”
PS5 launched in mid-November 2020 in the US, Europe, Japan, Canada, Mexico, Australia, New Zealand and South Korea.
Plaintiff Turner claims to have experienced drift on the DualSense controller that came with his PS5 right out of the box. A number of affected users have separately posted videos online documenting the problem.
The DualSense lawsuit alleges that “the options for repair are slim”. It claims affected users can choose between facing long waiting times to talk to PlayStation customer support about hardware issues or pay to ship their controller to a Sony repair centre to have it fixed under warranty.
“There is no indication, however, that Sony has developed an actual fix for the drift problem; rather, it appears to simply perform some sort of minor refurbishment and send the DualSense Controller back to consumers still defective and susceptible to manifestation of the Drift Defect in the future,” the complaint reads.
“Nor is there any indication that Sony is extending the warranty, compensating consumers for various past expenses or damages, or notifying consumers about their secret repair program.”
The plaintiff is seeking monetary relief for damages suffered, declaratory relief and public injunctive relief.
While it is currently unclear how many individual members of the class there will be, CSK&D said in court documentation viewed by VGC that it has been contacted by over 500 users experiencing drifting issues with the DualSense controller as part of its ongoing investigation.
CSK&D previously filed a similar class-action lawsuit against Nintendo in July 2019, alleging that the company is aware of a defect which causes Switch Joy-Con controllers to drift.
In March 2020, the United States District Court for the Western District of Washington compelled the case to arbitration, although it also rejected Nintendo’s bid to dismiss the case.
CSK&D is currently working to pursue that case through the arbitration process, a situation it is hoping to avoid with the new DualSense lawsuit, in which the plaintiff “demands a trial by jury for all claims so triable”.
When setting up his PS5, Turner claims he agreed to PlayStation’s terms and conditions. “Plaintiff, however, expressed his intent to opt out—both individually and on behalf of all similarly situated persons—of resolving any disputes with Sony through individual arbitration pursuant to Section 14 of the PlayStation Terms of Service and User Agreement, which he indicated in a letter to Sony during the relevant window,” CSK&D said.
“Many” of the DualSense owners who contacted the company to report problems with their controllers also “indicated that they have or will opt-out of Sony’s arbitration agreement”.
Microsoft is also facing a class-action lawsuit which alleges that a product defect causes Xbox controllers to drift. The platform holder recently issued fresh statements calling for the lawsuit to be taken out of the courtroom by compelling arbitration, which would see the disputes resolved by an impartial adjudicator.