Case: 1:22-cv-03603 Document #: 1 Filed: 07/12/22 Page 1 of 17 PageID #:1
`
`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
`
`
`CHRISTINA TREJO, individually and
`on behalf of a class of similarly situated
`individuals,
`
`Plaintiff,
`
`v.
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`
`No.
`
`
`Hon.
`
`
`
`
`
`
`
`SONY CORPORATION OF
`AMERICA, a New York corporation.
`
`
`
`Defendant.
`
`
`
`CLASS ACTION COMPLAINT WITH JURY DEMAND
`
`Plaintiff Christina Trejo (“Plaintiff”) brings this Class Action Complaint and Demand for
`
`Jury Trial against Defendant Sony Corporation of America (a/k/a “Sony”) (“Defendant”) on her
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`own behalf, and on behalf of a Class of individuals who purchased defective PlayStation 5 consoles
`
`(“PS5”) manufactured and sold by Defendant. On behalf of herself and the proposed Class of
`
`individuals who purchased a PS5, Plaintiff seeks damages, restitution, and injunctive relief against
`
`Defendant for manufacturing, advertising and selling the defective PS5. Plaintiff, for her Class
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`Action Complaint, alleges as follows upon personal knowledge as to herself and her own acts and
`
`experiences, and as to all other matters, upon information and belief, including investigation by
`
`her attorneys.
`
`INTRODUCTION
`
`1.
`
`Defendant is multinational world leader in the manufacturing and selling of
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`electronics including gaming consoles and related products.
`
`2.
`
`The PS5 is manufactured, marketed, and sold by Defendant. The PS5 is
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`1
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`Case: 1:22-cv-03603 Document #: 1 Filed: 07/12/22 Page 2 of 17 PageID #:2
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`Defendant’s newest highly demanded gaming console which was released in November 2020.
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`3.
`
`According to PlayStation’s President, Jim Ryan, the November 2020 release of its
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`PS5 was the “biggest console launch of all time” which featured over four million unit sales by
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`January, 2021.1 Now, Sony has sold over 19.2 million units worldwide.2
`
`4.
`
`However, despite its large market success, Defendant’s PS5 contains a defect that
`
`causes the console to suddenly crash and power down while the user is playing video games that
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`they purchased (the “Console Defect”). While the PS5 can be used for many entertainment
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`purposes, playing video games on the console is its primary function. The Console Defect affects
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`users’ ability to play video games and compromises the primary function and overall usage of the
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`PS5.
`
`5.
`
`Defendant, who is in control of the manufacturing, marketing, advertising and sale
`
`of its PS5, was aware of the Console Defect through warranty repair requests, online consumer
`
`complaints, and its own online service resources. However, despite its knowledge of the Console
`
`Defect, Defendant failed to, and continues to fail to, disclose the defect to consumers prior to them
`
`purchasing the PS5, nor has Defendant taken any substantial action to remedy the problem.
`
`6.
`
`Plaintiff, like other consumers nationwide, purchased the PS5 based on the express
`
`and/or implied representations made by Defendant that it would properly function.
`
`7.
`
`Nowhere did Defendant disclose to Plaintiff and other purchasers of the PS5 that
`
`there is a Console Defect which causes the PS5 to crash and power down. Had Defendant
`
`accurately disclosed this information, Plaintiff and other members of the Class would not have
`
`
`1 https://screenrant.com/ps5-biggest-console-launch-all-time-playstation-ceo/ (Last accessed
`June 15, 2022).
`2 www.siliconera.com/ps5-sales-surpass-19-3-million-units-sold-worldwide/ (Last accessed June
`15, 2022).
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`
`2
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`purchased the PS5.
`
`8.
`
`Plaintiff brings this action on behalf of herself and other similarly situated
`
`consumers to obtain redress for those who purchased the defective PS5.
`
`JURISDICTION AND VENUE
`
`9.
`
`This Court has diversity jurisdiction under 28 U.S.C. § 1332(a) and (d), because:
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`(i) at least one member of the putative class is a citizen of a state different from any Defendant;
`
`(ii) the amount in controversy as to all putative class members exceeds $5,000,000; and (iii) none
`
`of the exceptions under that subsection applies to the instant action.
`
`10.
`
`Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b) because a
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`substantial part of the events and/or omissions giving rise to the claim occurred in this District.
`
`PARTIES
`
`11.
`
`12.
`
`Plaintiff Christina Trejo is a natural person and citizen of Illinois.
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`Defendant is a corporation located in New York, New York, and organized under
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`the laws of the State of New York, with its principal place of business located at 25 Madison Ave.,
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`New York, New York 10010.
`
`COMMON FACTUAL ALLEGATIONS
`
`13.
`
`Defendant is multinational world leader in the manufacturing and sales of
`
`electronics, including gaming consoles and related products.
`
`14.
`
`The PS5 is manufactured, marketed, and sold by Defendant. The PS5 is
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`Defendant’s newest flagship gaming console which was released in November, 2020. The PS5 is
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`primarily a video game console which provides many other entertainment functions including
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`television and movie streaming capabilities and services.
`
`15.
`
`The PS5 can be purchased from Defendant for approximately $499.99 for the
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`
`3
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`edition with a disk drive, or $399.99 for the digital edition.3
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`16.
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`Defendant’s release of the PS5 back in November of 2020 was the “biggest console
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`launch of all time” and Defendant has now sold over 19.2 million units worldwide.4
`
`17.
`
`Key to Defendant’s success has been its aggressive marketing strategy. In fact, in
`
`the months preceding and following the PS5’s November, 2020 launch, Sony spent three times as
`
`much on advertisements for the PS5 as its biggest competitor, Microsoft, did for the launch of its
`
`Xbox Series X.56
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`18.
`
`In addition to its outward advertising strategy, Sony markets the PS5 on its own
`
`personal website and ecommerce store, https://www.playstation.com/en-us/ps5/.
`
`19.
`
`Throughout its marketing and advertising Defendant represents that the PS5 is a
`
`next generation gaming console which is equipped with “Lightning Speed, Breathtaking
`
`Immersion, [and] Stunning Games.”7 Specifically, Defendant states that consumers will
`
`“Experience lightning-fast loading with an ultra-high speed SSD, deeper immersion with support
`
`for haptic feedback, adaptive triggers and 3D audio, and an all-new generation of incredible
`
`PlayStation games.”8
`
`20.
`
`Defendant makes the aforementioned representations on its own website and other
`
`retailers’ websites, such as Amazon and Walmart, which sell Defendant’s PS5 consoles, as well
`
`
`3 At the time this complaint was drafted, Defendant was out of stock of both PS5 editions.
`4 www.siliconera.com/ps5-sales-surpass-19-3-million-units-sold-worldwide/ (Last accessed June
`15, 2022).
`5 https://adage.com/article/cmo-strategy/sonys-playstation-5-outspent-microsofts-xbox-series-x-
`three-one-launch-ads/2298636 (Last accessed June 16, 2022)
`6 Microsoft released its Xbox Series X on November 10, 2022.
`7 https://www.playstation.com/en-us/ps5/ (Last accessed June 16, 2022).
`8 Ibid.
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`4
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`as through other online marketing platforms, such as YouTube.9101112
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`21.
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`Importantly, the only system that has the compatibility to play the all-new
`
`generation of PlayStation games (“PS5 Games”) is the PS5. Defendant also partnered with a
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`number of popular game creators to release exclusive titles which can only be played on the PS5
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`in an effort to further corner the market and make their PS5 a more coveted purchase for
`
`consumers.13
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`22.
`
`Despite its noted market success, the PS5 has, and remains, an extremely exclusive
`
`purchase with many retailers sold out. Sony admits that the PS5 will remain in short supply until
`
`2023 and acknowledges its supply shortcomings where its Executive Deputy President and CFO
`
`Hiroki Totoki stated “[i]f the question is whether we can meet the demand, I think [we are] still
`
`somewhat short.”14
`
`23.
`
`Defendant’s supply issues have added to the frustration of consumers hoping to
`
`purchase Defendant’s highly advertised next generation console. In fact, currently, Sony is only
`
`offering consumers the ability to “[r]egister for an opportunity to purchase a PS5 console from
`
`PlayStation.”15
`
`24.
`
`Thus, consumers, after finally purchasing a seemingly unobtainable PS5 console,
`
`
`9 web.archive.org/web/20201103222203mp_/https://www.walmart.com/cp/playstation-
`5/3475115 (Last accessed July 5, 2022).
`10 www.amazon.com/stores/page/07A20468-F527-4562-8FB4-23F8ACBCD3A8 (Last accessed
`July 5, 2022).
`11 www.youtube.com/watch?v=_NX8F9FBvg0 (Last accessed July 5, 2022).
`12 www.youtube.com/watch?v=cxXvYJyBlc4 (Last accessed July 5, 2022).
`13 Some next generation video games are compatible with several next-generation consoles, such
`as the PS5 and Xbox Series X, while PS5 exclusive titles are only available to be played on the
`PS5 console.
`14 https://arstechnica.com/gaming/2022/05/sony-expects-ps5-will-still-be-in-short-supply-until-
`2023/ (Last accessed June 15, 2022).
`15 www.playstation.com/en-us/ps5/register-to-buy/ (Last accessed June 15, 2022).
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`Case: 1:22-cv-03603 Document #: 1 Filed: 07/12/22 Page 6 of 17 PageID #:6
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`are met with an ironic truth that the PS5 they purchased from Sony, where “Play Has No Limits”,
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`contains a Console Defect which severely limits their expected use of the system.
`
`25.
`
`The Console Defect exists due to a defect in the design of the PS5. A common and
`
`significant issue among PS5 users is that the PS5 will crash or power down while they are playing
`
`video games.
`
`26.
`
`On information and belief, the Console Defect is more prominent, but is not limited
`
`to, when users play the new generation PS5 Games. This aspect of the defect is crucial as playing
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`PS5 Games is the primary purpose for which consumers purchase the PS5 in the first place.
`
`27.
`
`The Console Defect materially interferes with the user’s gameplay and enjoyment
`
`of the PS5. Oftentimes, when the Console Defect causes the PS5 to power down or crash, users
`
`lose game progress due to the sudden nature of the defect. In addition, once a user is finally able
`
`to turn back on their PS5 after the Console Defect has occurred, users are warned that the manner
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`in which their PS5 has powered down is dangerous and can, or has, caused data loss, corruption,
`
`or damage to the overall system.
`
`28.
`
`Users are oftentimes required to downgrade versions of next generation PS5 Games
`
`which they purchased to the PlayStation 4 (“PS4”) version of the game to avoid this issue and not
`
`risk further damaging their PS5 and losing game progress.
`
`29.
`
`Because the Console Defect consistently crashes and powers down the PS5 not
`
`allowing users to play the games which they purchased, it renders them unfit for their ordinary
`
`purpose for which they are used depriving the purchasers of the benefit of the bargain.
`
`30.
`
`Defendant knew or should have known that the PS5 contained a latent defect
`
`because consumers of the PS5 have made warranty claims regarding the Console Defect starting
`
`
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`6
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`Case: 1:22-cv-03603 Document #: 1 Filed: 07/12/22 Page 7 of 17 PageID #:7
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`at least as early as summer 2021.161718 Indeed, Sony has published a troubleshooting page
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`specifically for the Console Defect which users within their warranty period can use to try to
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`register to repair their PS5.19
`
`31.
`
`In addition, Defendant knew or should have known that the PS5 contained a latent
`
`defect because of the high rate of negative reviews describing the Console Defect. Unsurprisingly,
`
`as the PS5 is “sold out,” Sony does not advertise consumer reviews on its own consumer website.
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`However, internet complaints describing the Console Defect exist on several retailers’ websites
`
`and go back to the date the PS5 was released. For example, on Amazon’s e-commerce website:
`
`Amazon Customer (November 13, 2020) PS5 is a buggy broken mess.20
`
`“The PS5 is a buggy broken mess. Game crashed within 5 minutes and is
`completely unplayable.”
`
`Edgar Rodriguez (December 20, 2021) Brick city21
`
`“Got my hands on one finally. Was crashing left and right with every disc
`game.”
`
`Amazon Customer (November 13, 2020) PS5 NOT WORKING22
`
`“…The PS5 constantly turn off and on outta nowhere. I’m also getting constant
`
`
`16 www.reddit.com/r/PS5/comments/opsydb/ps5_warranty_question_fix_or_replace/ (Last
`accessed July 5, 2022).
`17www.reddit.com/r/playstation/comments/rxsd64/ps5_is_back_from_sonyit_still_crashes_while
`/ (Last accessed July 5, 2022).
`18www.reddit.com/r/playstation/comments/rwrj6h/ps5_only_plays_ps4_gamescrashes_during_ps
`5_games/ (Last accessed July 5, 2022).
`19 www.playstation.com/en-us/support/hardware/ps5-power-issues/ (Last accessed June 16,
`2022)
`20 www.amazon.com/gp/customer-reviews/R1EMTN2ARP5S96?ASIN=B08FC5TTBF (Last
`accessed June 7, 2022).
`21 www.amazon.com/product-reviews/B09DFCB66S/ref=cm_cr_getr_d_paging_btm
`_next_3?ie=UTF8&filterByStar=one_star&reviewerType=all_reviews&pageNumber=3#reviews
`-filter-bar (Last accessed June 7, 2022).
`22 www.amazon.sg/Sony-PlayStation-PS5-Standard-Disc/product-reviews/B08FC5L3RG?
`reviewerType=all_reviews (Last accessed June 7, 2022).
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`7
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`Glitch GPU patters. I already contacted Amazon, they said they don’t have any
`left, I will have to wait for restock and there’s no date for when will be
`available again. It’s very frustrating knowing now I’m $550 less, no ps5, no
`option to get a new one from Amazon.”
`
`Daanish Fiaz (November 14, 2020) PS5 is Dead and won’t turn on23
`
`“Purchased ps5, played 1.5 hours, console shuts off on me randomly and now
`won’t tun on. Contacted both Sony and amazon and neither one is able to
`provide me with a replacement yet. Extremely disappointed and saddened by
`what has happened to my system. Absolutely dreadful experience.”
`
`However, Defendant, who monitors its own consumer website and warranty
`
`32.
`
`requests and has been long aware of the Console Defect, has not taken and measures to disclose
`
`the defect and make consumers aware of the defect prior to their purchase of the PS5.
`
`33.
`
`In addition to negative reviews and warranty claims, the Console Defect is widely
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`published in the gaming community, some articles even suggesting ways to resolve the issue
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`through self-repair.24252627 Although some users have success with self-repair, these solutions are
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`temporary and do not completely resolve the Console Defect.
`
`34.
`
`The above survey of reviews and articles illustrates that consumers who purchased
`
`the PS5 consistently experience problems associated the Console Defect.
`
`35.
`
`Defendant warranted, via advertisements on its website, that the PS5 is fit to use
`
`for its ordinary purpose of playing video games, including specifically PS5 Games.
`
`36.
`
`Plaintiff, as well as other consumers nationwide, reasonably relied on Defendant’s
`
`
`23 Ibid.
`24 www.playstationlifestyle.net/2020/12/08/ps5-crashing-crashes-external-hard-drives/ (Last
`accessed June 7, 2022).
`25 www.the-sun.com/tech/4594247/7-instant-hacks-to-stop-your-ps5-turning-off/ (Last accessed
`June 7, 2022).
`26 www.laptopmag.com/how-to/ps5-randomly-shutting-off-heres-how-to-fix-it (Last accessed
`June 7, 2022).
`27 www.partitionwizard.com/partitionmagic/ps5-crashing.html (Last accessed June 7, 2022).
`
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`representations and warranties that the PS5 would function as warranted, including running PS5
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`Games free from defect.
`
`37.
`
`However, Plaintiff, as well as other consumers nationwide who purchased the PS5,
`
`were deceived because Defendant failed to disclose the Console Defect.
`
`38.
`
`Plaintiff, as well as other consumers nationwide, would not have purchased the PS5
`
`from Defendant, or would have paid materially less it, had they known that the PS5 contained the
`
`Console Defect.
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`FACTS SPECIFIC TO PLAINTIFF
`
`39.
`
`40.
`
`In November, 2021, Plaintiff was looking to purchase Defendant’s PS5 console.
`
`Plaintiff visited several websites which display Defendant’s representations
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`regarding its PS5 and saw that it is a next generation gaming console which is equipped with
`
`“Lightning Speed, Breathtaking Immersion, [and] Stunning Games.” Further, Plaintiff saw
`
`Defendant’s representations that the PS5 was equipped with the compatibility to play the new
`
`generation of PS5 Games.
`
`41.
`
`Due to the PS5’s high demand and short-supply issues, Plaintiff had purchased the
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`PS5 from Walmart, one of Sony’s online retailers, where she purchased the disk edition of the PS5
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`for $499.99, excluding tax, based on Defendant’s representations and warranties that it will
`
`function as represented and would be usable for its ordinary purpose as a video game console and
`
`run PS5 Games without any issues or problems.
`
`42.
`
`Specifically, Plaintiff relied on Defendant’s representations on Walmart’s PS5
`
`product page that the PS5 is equipped with “lightning-fast loading with an ultra-high speed SSD,
`
`deeper immersion with support for haptic feedback, adaptive triggers and 3D audio, and an all-
`
`
`
`9
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`new generation of incredible PlayStation games.”28
`
`43.
`
`However, just months after she purchased it, the PS5 purchased by Plaintiff began
`
`to experience the Console Defect and would consistently crash and power down when playing the
`
`latest generation PS5 Games that were specifically made for the PS5. The PS5 would also fail to
`
`power back on after the Console Defect forced it to shut down.
`
`44.
`
`Further, when the PS5 was finally able to turn on, the console warned that the
`
`manner in which the PS5 has powered down is dangerous and can, or has, caused data loss,
`
`corruption, or damage to the overall system.
`
`45.
`
`As a result of the Console Defect, the PS5 purchased by Plaintiff cannot be used
`
`for the purpose which she purchased it for.
`
`46.
`
`Plaintiff and the other members of the Class were led to believe, based on
`
`representations made through Defendant’s advertising representations, that the PS5 that they
`
`purchased was fully functional and free from any defects that would interfere with their ability to
`
`use the PS5 for its intended use as a video game console, including running new generation PS5
`
`games.
`
`47.
`
`Plaintiff and the other members of the Class were deceived and/or misled by
`
`Defendant’s warranties and misrepresentations regarding the quality and functionality of the PS5
`
`consoles that they purchased. These misrepresentations, and omissions, were a material factor that
`
`influenced Plaintiff’s and the other Class members’ decision to purchase a PS5 from Defendant.
`
`48.
`
`At the time Plaintiff purchased Defendant’s PS5, she was unaware of the Console
`
`Defect, nor did Defendant disclose this material defect despite its knowledge of the issue. Had
`
`
`28 https://web.archive.org/web/20211123052723/https://www.walmart.com/ip/Sony-PlayStation-
`5-Video-Game-Console/363472942 (Last accessed July 12, 2022).
`
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`10
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`Plaintiff known about the Console Defect prior to her purchase, she would not have purchased the
`
`PS5 or would have paid substantially less for it.
`
`49.
`
`As a result, Plaintiff and the other members of the Class have been damaged by
`
`their purchases of the PS5 that unbeknownst to them, had the Console Defect.
`
`50.
`
`Defendant has received significant profits from the sale of the defectively designed
`
`PS5.
`
`CLASS ALLEGATIONS
`
`51.
`
`Plaintiff brings this action on behalf of herself and a nationwide class (the “Class”),
`
`with one subclass (the “Subclass”) defined as follows:
`
`The Class: All persons in the United States who, within the applicable statute of
`
`limitations, purchased a PS5 in the United States.
`
`The Subclass: All persons in the United States who, within the applicable statute of
`
`limitations, purchased a PS5 in Illinois.
`
`52.
`
`Plaintiff will fairly and adequately represent and protect the interests of the other
`
`members of the Class and Subclass. Plaintiff has retained counsel with substantial experience in
`
`prosecuting complex litigation and class actions. Plaintiff and her counsel are committed to
`
`vigorously prosecuting this action on behalf of the other members of the Class and Subclass and
`
`have the financial resources to do so. Neither Plaintiff nor her counsel have any interest adverse to
`
`those of the other members of the Class and Subclass.
`
`53.
`
`Absent a class action, most members of the Class and Subclass would find the cost
`
`of litigating their claims to be prohibitive and would have no effective remedy. The class treatment
`
`of common questions of law and fact is superior to multiple individual actions or piecemeal
`
`
`
`11
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`litigation in that it conserves the resources of the courts and the litigants and promotes consistency
`
`and efficiency of adjudication.
`
`54.
`
`Defendant has acted and failed to act on grounds generally applicable to the
`
`Plaintiff and the other members of the Class and Subclass, requiring the Court’s imposition of
`
`uniform relief to ensure compatible standards of conduct toward the members of the Class and
`
`Subclass, and making injunctive or corresponding declaratory relief appropriate for the Class and
`
`Subclass as a whole.
`
`55.
`
`The factual and legal bases of Defendant’s liability to Plaintiff and to the other
`
`members of the Class and Subclass are the same, resulting in injury to the Plaintiff and to all of
`
`the other members of the Class and Subclass. Plaintiff and the other members of the Class and
`
`Subclass have all suffered harm and damages as a result of Defendant’s unlawful and wrongful
`
`conduct.
`
`56.
`
`Upon information and belief, there are tens of thousands of members of the Class
`
`and Subclass such that joinder of all members is impracticable.
`
`57.
`
`There are many questions of law and fact common to the claims of Plaintiff and the
`
`other members of the Class and Subclass, and those questions predominate over any questions that
`
`may affect individual members of the Class and Subclass. Common questions for the Class and
`
`Subclass include, but are not limited to, the following:
`
`(a) Whether Defendant engaged in the unlawful conduct alleged herein;
`
`(b) Whether Defendant represented that the PS5 would be free of defects;
`
`(c) Whether the PS5 is defective;
`
`(d) Whether Defendant was aware that the PS5 was defective;
`
`(e) Whether Defendant breached any warranties in selling the defective PS5.
`
`
`
`12
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`Case: 1:22-cv-03603 Document #: 1 Filed: 07/12/22 Page 13 of 17 PageID #:13
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`(f) Whether, Plaintiff and the other members of the Class and Subclass have suffered
`
`ascertainable monetary losses; and
`
`(g) Whether Plaintiff and the other members of the Class and Subclass are entitled to
`
`monetary remedies.
`
`COUNT I
`For Violations of Consumer Protection Laws
`(On behalf of Plaintiff and the Class and Subclass)
`
`Plaintiff repeats and incorporates the allegations above as if fully set forth herein.
`
`The Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS
`
`58.
`
`59.
`
`502/1 et seq. (“ICFA”), as well as other materially identical consumer fraud statutes enacted by
`
`states throughout the county, prohibit deceptive acts and practices in the sale of products such as
`
`the PS5 sold, marketed and manufactured by Defendant.
`
`60.
`
`Plaintiff and the other members of the Class and Subclass are “consumers” or
`
`“persons,” as defined under the ICFA and other states’ consumer protection laws.
`
`61.
`
`62.
`
`Defendant’s conduct as alleged herein occurred in the course of trade or commerce.
`
`Defendant’s actions in representing that the PS5 can function as advertised and for
`
`its ordinary purpose of use, free from defect, when in fact it contained a latent defect that caused
`
`the console to malfunction and which Defendant was aware of offends public policy, has caused
`
`and continues to cause substantial injury to consumers, and constitutes an unfair and deceptive
`
`trade practice.
`
`63.
`
`Upon information and belief, and given the fact that Defendant manufactures,
`
`advertises, distributes, and sells the PS5, created the advertising on its consumer website,
`
`considering the significant amount of negative reviews appearing on Defendant’s and other
`
`retailers’ websites, and considering how this is a highly publicized issue in the gaming community,
`
`
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`13
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`Case: 1:22-cv-03603 Document #: 1 Filed: 07/12/22 Page 14 of 17 PageID #:14
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`Defendant knew or should have known at all relevant times that the PS5 video game consoles it
`
`manufactured and sold contained a latent defect that caused them to malfunction. Nonetheless
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`Defendant continued to advertise and sell the PS5 without disclosing the Console Defect to
`
`consumers such as Plaintiff and the other members of the Class and Subclass.
`
`64.
`
`Defendant intended for consumers to rely on its representations and omissions
`
`regarding the PS5 and its capabilities when choosing to purchase them, including specifically the
`
`ability to play the latest generation PS5 games on it, and customers did rely on such representations
`
`and omissions to make an informed decision as to whether to purchase the PS5.
`
`65.
`
`Plaintiff and other members of the Class and Subclass did reasonably rely on
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`Defendant’s misrepresentations and omissions in choosing to purchase the PS5 and would not have
`
`purchased them, or would have paid materially less for them, had Defendant not made false
`
`representations and not actively concealed that the PS5 suffers from the Console Defect that
`
`crashes and powers down the system.
`
`66.
`
`As a direct and proximate cause of Defendant’s unlawful practices, Plaintiff and
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`the other members of the Class and Subclass suffered actual damages, including monetary losses
`
`for the purchase price of the PS5 which they purchased and which did not function as represented,
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`and in fact contained a latent defect causing the console to malfunction.
`
`67.
`
`Defendant’s conduct is in violation of the ICFA and other states’ consumer
`
`protection laws, and pursuant to 815 ILCS 505/10a and other such states’ consumer protection
`
`laws, Plaintiff and the other members of the Class and Subclass are entitled to damages in an
`
`amount to be proven at trial, reasonable attorney’s fees, injunctive relief prohibiting Defendant’s
`
`unfair and deceptive practices going forward, and any other penalties or awards that may be
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`appropriate under applicable law.
`
`
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`14
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`Case: 1:22-cv-03603 Document #: 1 Filed: 07/12/22 Page 15 of 17 PageID #:15
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`COUNT II
`Breach of Implied Warranty of Merchantability
`(On behalf of Plaintiff and the Class and Subclass)
`
`Plaintiff hereby incorporates the above allegations by reference as though fully set
`
`68.
`
`forth herein.
`
`69.
`
`Defendant, as a manufacturer, marketer, distributor, and seller of the PS5 that was
`
`purchased by Plaintiff and the other members of the Class and Subclass, is a “merchant” as defined
`
`under the Uniform Commercial Code (“UCC”). The PS5 is a “good” as defined under the UCC.
`
`70.
`
`The implied warranty of merchantability is codified in Section 2-314 of the
`
`Uniform Commercial Code (“UCC”) and requires that goods are fit for the ordinary purposes for
`
`which such goods are used.
`
`71. Most states’ laws provide for enforcement of the implied warranty of
`
`merchantability through their adoption of the UCC, including in Illinois pursuant to 810 ILCS 5/2-
`
`314, as well as other states where Defendant sells the PS5.
`
`72.
`
`Plaintiff, like the other Class and Subclass members, purchased the PS5 in a
`
`consumer transaction.
`
`73.
`
`The PS5s manufactured and sold by Defendant were not fit for the ordinary purpose
`
`for which such goods are used because the Console Defect renders the PS5 inoperable as the
`
`system consistently crashes and powers down when used to play PS5 Games.
`
`74.
`
`As a result of Defendant’s breach of warranty, Plaintiff, like the other Class and
`
`Subclass members, suffered damages by purchasing the PS5 from Defendant which she would
`
`have not purchased, or would have paid materially less for, had she known that it was not fit for
`
`its ordinary use as a gaming console, as well as monetary damages.
`
`COUNT III
`Unjust Enrichment
`
`15
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`Case: 1:22-cv-03603 Document #: 1 Filed: 07/12/22 Page 16 of 17 PageID #:16
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`(On behalf of Plaintiff and the Class and Subclass)
`
`Plaintiff hereby incorporates the allegations set forth above.
`
`Plaintiff and the other members of the Class and Subclass conferred a benefit on
`
`75.
`
`76.
`
`Defendant by purchasing one of its PS5 gaming consoles.
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`77.
`
`It is inequitable and unjust for Defendant to retain the revenues obtained from
`
`Plaintiff’s and the other members of the Class and Subclass’ purchases of the PS5 because
`
`Defendant misrepresented the functionality, qualities, and benefits of the PS5 and Plaintiff and the
`
`other members of the Class and Subclass would not have purchased the PS5 from Defendant had
`
`Defendant not made these misrepresentations.
`
`78.
`
`Accordingly, because Defendant will be unjustly enriched if it is allowed to retain
`
`such funds, Defendant must pay restitution to Plaintiff and the other members of the Class and
`
`Subclass in the amount which Defendant was unjustly enriched by each of their purchases of the
`
`PS5.
`
`
`
`WHEREFORE, Plaintiff, on behalf of herself and the Class and Subclass, prays for the
`
`PRAYER FOR RELIEF
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`following relief:
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`1. An order certifying the Class and Subclass as defined above;
`
`2. An awarded of actual or compensatory damages, or, in the alternative, disgorgement of
`
`all funds unjustly retained by Defendant as a result of its unlawful practices;
`
`3. An award of reasonable attorney’s fees and costs;
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`4. Award such further relief as the Court deems reasonable and just.
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`JURY DEMAND
`
`Plaintiff requests trial by jury of all claims that can be so tried.
`
`
`
`16
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`Case: 1:22-cv-03603 Document #: 1 Filed: 07/12/22 Page 17 of 17 PageID #:17
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`DATED: July 12, 2022
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`Respectfully submitted,
`
`
`
`
`
`CHRISTINA TREJO, individually and on behalf of
`similarly situated individuals
`
`By: /s/ Jordan R. Frysinger___
`One of Plaintiff’s Attorneys
`
`
`
`
`
`Eugene Y. Turin
`Jordan R. Frysinger
`McGuire Law, P.C. (Firm ID: 56618)
`55 W. Wacker Drive, 9th Floor
`Chicago, IL 60601
`Tel: (312) 893-7002
`eturin@mcgpc.com
`jfrysinger@mcgpc.com
`
`Attorneys for Plaintiff and the Putative Class
`
`
`
`
`17
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`