Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 1 of 33
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`
`
`LMARC TURNER
`
`Plaintiff,
`
`v.
`SONY CORPORATION OF AMERICA,
`and SONY INTERACTIVE
`ENTERTAINMENT LLC,
`Defendants.
`
`
`
`
`
` CLASS ACTION COMPLAINT
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`
`
`Plaintiff Lmarc Turner, individually, and on behalf of all others similarly situated, by and
`
`
`
`
`
`through counsel, brings this action against Defendants Sony Corporation of America, Inc. and
`
`Sony Interactive Entertainment LLC (collectively “Defendants” or “Sony”). Plaintiff’s allegations
`
`herein are based upon personal knowledge and belief as to his own acts and upon the investigation
`
`of his counsel and information and belief as to all other matters.
`
`INTRODUCTION
`
`1.
`
`This is a class action lawsuit brought against Sony by Plaintiff on behalf of himself
`
`and similarly situated consumers who purchased the Sony PlayStation 5 (“PS5”) DualSense
`
`Wireless Controllers for the PS5 console (referred to herein as the “DualSense Controller”).
`
`2.
`
`The DualSense Controller is manufactured, marketed, and sold by Sony. It is the
`
`controller for Sony’s latest and highly sought-after gaming console, the PS5. The DualSense
`
`Controller was released alongside the PlayStation 5 in November of 2020. At a Sony CES press
`
`conference in mid-January 2021, PlayStation’s President and CEO dubbed the launch of the PS5
`
`1
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 2 of 33
`
`the “biggest console launch of all time,” deeming it the “best console launch in history.”1 As of
`
`mid-January 2021, best estimates suggested that the PS5 moved over four million units since
`
`launch.2 Sony described the DualSense controller as “bring[ing] gaming worlds to life,” and
`
`including such “next-generation features like haptic feedback and dynamic adaptive triggers.”3
`
`3.
`
`Contrary to these claims, however, 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”). This defect significantly interferes with gameplay and
`
`thus compromises the DualSense Controller’s core functionality.
`
`4.
`
`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. Since the PS5 was released last November, players have taken to social media
`
`to share stories about DualSense drift. One user reported the issue 10 days after receiving the PS5
`
`console, stating that they tried every possible fix—power-cycling the console, turning Bluetooth
`
`on and off, resetting the controller, and charging it fully overnight—to no avail.4 In addition to the
`
`
`1 Reves, Brianna, PS5 Is ‘Biggest Console Launch Of All Time’ According to PlayStation CEO,”
`ScreenRant (Jan. 11, 2021), available: https://screenrant.com/ps5-biggest-console-launch-all-
`time-playstation-ceo/ (last accessed Feb. 10, 2021).
`2 See Baird, Scott, PS5 Sells Over 4 Million United Since Launch & Shows No Signs Of Stopping,
`ScreenRant (Jan. 3, 2021), available: https://screenrant.com/ps5-sales-4-million-xbox-series-
`nintendo-switch/ (last accessed Feb. 10, 2021).
`3See
`https://direct.playstation.com/en-us/accessories/accessory/dualsense-wireless-ps5-
`controller.3005715?emcid=pl-go-eg-psd-
`na&gclid=Cj0KCQiApY6BBhCsARIsAOI_Gja1LXOkHkoMfGrPxiqg4gCYK13ACQI-
`UDT8TThs7gaeheGxdUllr0QaAi83EALw_wcB (last accessed Feb. 10, 2021).
`4 Nortis, Ari, PS5 Controllers Are Drifting, And The Repairs Are A Hassle, Kotaku (Feb. 9, 2021),
`available
`at:
`https://kotaku.com/ps5-controllers-are-drifting-and-the-repairs-are-a-has-
`1846233739 (last accessed Feb. 10, 2021).
`
`2
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 3 of 33
`
`now thousands of online complaints, there has been significant negative publicity surrounding the
`
`Drift Defect in the gaming community.5
`
`5.
`
`The Drift phenomenon is something that gamers are all too familiar with, having
`
`also plagued similar controllers from other manufacturers. The DualSense Controller’s
`
`predecessor, the DualShock 4 for PlayStation 4, was also reportedly subject to drifting, with scores
`
`of consumers complaining about the virtually same drift issues.
`
`6.
`
`The drifting phenomenon has garnered both domestic and international scrutiny as
`
`well, with consumer advocacy groups in France, Belgium and Switzerland investigating drift
`
`activity in a popular controller from another manufacturer.6 Accordingly, Sony has been on notice
`
`of the existence of the drifting phenomenon for years.
`
`
`5 See, e.g., Mansoor, Saqib, Some DualSense Controllers Have Started Drifting, SegmentNext
`(December 11, 2021), available at https://segmentnext.com/2020/12/01/dualsense-controllers-
`drifting/ (remarking on the drifting issue as “plaguing a few DualSense controllers barely a month
`into the PlayStation 4 launch) (last accessed Feb. 10, 2021); Andrews, Jessica, Reports of PS5
`‘Stick Drift’ Surface Weeks After Launch, CBR
`(Nov. 30, 2020), available at
`https://www.cbr.com/report-ps5-stick-drift-issue/ (noting that various online users have been
`experiencing drift within weeks of PS5’s launch, including one Reddit user quoted as saying
`“DualSense is probably the most next-gen feature right next to the SSD but at the end of the day
`it's just a controller with normal controller problems”) (last accessed Feb. 10, 2021); Breslin,
`Richard, DualSense Drift is Already a Problem For Some PS5 Gamers, GameByte (Dec. 1, 2020),
`https://www.gamebyte.com/dualsense-drift-is-already-a-problem-for-some-ps5-
`available
`at
`gamers/ (explaining that “there has been a lot of hype surrounding the DualSense controllers so
`this news is especially disappointing, but [drift] is something now being reported by multiple
`gamers.”) (last accessed Feb. 10, 2021).
`6 See, e.g., Fix Xbox One controller stick drift, Nick Sturgess (Jun. 23, 2020), available:
`https://www.stugr.com/2020/06/23/fix-xbox-one-controller-stick-drift.html (last accessed Feb.
`10, 2021); Switch owner with engineering background discovers Joy-Con drift design flaw,
`Nintendo enthusiast (Apr. 5, 2019), available at: https://www.nintendoenthusiast.com/switch-
`owner-with-engineering-background-discovers-joy-con-drift-design-flaw/) (explaining that the
`Joy-Con drift issue is likely “due to Nintendo’s apparent poor choice of parts”); Nintendo Switch,
`Stop obsolescence of controllers, QUE CHOISIR
`(May 11, 2019), available at:
`https://www.quechoisir.org/action-ufc-que-choisir-nintendo-switch-stop-a-l-obsolescence-des-
`manettes-n72531/ (UFC-Que Choisir concludes that the “manufacturing defect” in Nintendo’s
`Joy-Cons is “aimed at deliberately reducing the life of the product to increase the replacement
`rate” and constitutes “planned obsolescence”).
`
`3
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 4 of 33
`
`7.
`
`Notwithstanding its knowledge of the Drift Defect, Sony has failed to disclose this
`
`material information to consumers. When consumers experience the Drift Defect, the options for
`
`repair are slim. Reportedly, Sony PlayStation’s dedicated portal for issues with PS5 hardware—
`
`including the DualSense Controller—is experiencing a backlog and redirecting consumers to
`
`contact a customer service agent via the contact page for PlayStation support. Customers are
`
`experiencing long wait times and having to deal with a maze of pre-recorded phone prompts before
`
`finally speaking with an agent concerning repairs for DualSense Controller drift.7
`
`8.
`
`Even for in-warranty repairs for Drift, customers have to pay for shipping the
`
`controller to a Sony repair center—a cost that varies based on a number of factors, including
`
`location and the total weight of the package—and Sony does not reimburse customers for these
`
`shipping costs.8
`
`9.
`
`Recent software and firmware updates did not ameliorate or address the Drift Defect
`
`in any way.
`
`10. As a result of Sony’s unfair, deceptive, and/or fraudulent business practices, owners
`
`of DualSense Controllers, including Plaintiff, have suffered an ascertainable loss, injury in fact,
`
`and otherwise have been harmed by Sony’s conduct.
`
`11. Accordingly, Plaintiff brings this action to redress Sony’s violations of state
`
`consumer fraud statutes, breach of warranty, and unjust enrichment. Plaintiff seeks monetary relief
`
`for damages suffered, declaratory relief, and public injunctive relief.
`
`
`
`
`7 See Nortis, Ari, PS5 Controllers Are Drifting, And The Repairs Are A Hassle, Kotaku (Feb. 9,
`2021), available at: https://kotaku.com/ps5-controllers-are-drifting-and-the-repairs-are-a-has-
`1846233739 (last accessed Feb. 10, 2021).
`8 See id.
`
`4
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 5 of 33
`
`JURISDICTION AND VENUE
`
`12. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
`
`§ 1332 of the Class Action Fairness Act of 2005 because: (i) there are 100 or more class members,
`
`(ii) there is an aggregate amount in controversy exceeding $5,000,000, exclusive of interest and
`
`costs, and (iii) there is minimal diversity because at least one plaintiff and one defendant are
`
`citizens of different states. This Court also has supplemental jurisdiction over the state law claims
`
`pursuant to 28 U.S.C. § 1367.
`
`13. Venue properly lies in this judicial district pursuant to 28 U.S.C. § 1391 because
`
`Sony Corporation of America is headquartered within this judicial district, transacts business in
`
`this district and is subject to personal jurisdiction in this district. Additionally, Sony has advertised
`
`in this district and has received substantial revenue and profits from its sales of its products,
`
`including the DualSense Controllers, in this district; therefore, a substantial part of the events
`
`and/or omissions giving rise to the claims herein occurred, in part, within this district.
`
`14. This Court has personal jurisdiction over Sony because Sony Corporation of
`
`America maintains its headquarters within this judicial district, has conducted substantial business
`
`in this judicial district, and intentionally and purposefully placed its products into the stream of
`
`commerce within the state of New York and throughout the United States.
`
`THE PARTIES
`
`Plaintiff
`
`15. Plaintiff Lmarc Turner is, and at all relevant times was, a resident and citizen of the
`
`state of Virginia.
`
`16. Plaintiff Turner purchased a PS5 console on or around February 5, 2021.
`
`5
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 6 of 33
`
`17. On the same date as purchase, Plaintiff’s DualSense Controller that came with his
`
`PS5 system began exhibiting drift.
`
`18. He contacted Sony customer service for assistance with the drift issue. The Sony
`
`representative advised Plaintiff to reset his console and game, which may fix the problem. The
`
`representative did not offer any further assistance to Plaintiff to address the issue.
`
`19. Despite performing these troubleshooting steps, Plaintiff’s DualSense Controller
`
`continues to experience drift.
`
`20. Given that his experience with contacting Sony the first time did not satisfactorily
`
`address the drift issue, Plaintiff opted to instead purchase an additional DualSense Controller for
`
`$69.99 on February 9, 2021.
`
`21. Had Plaintiff been aware of the Drift Defect prior to purchasing his PS5, he
`
`otherwise would not have purchased the PS5, or would have paid substantially less for it.
`
`22. When setting up his system, Plaintiff agreed to the 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.
`
`Defendants
`
`23. Defendant Sony Corporation of America is located at 25 Madison Avenue, New
`
`York, New York 10010. It is the United States headquarters of Sony Corporation, based in Tokyo,
`
`Japan. Sony’s principal U.S. businesses include Sony Electronics Inc., Sony Mobile
`
`Communications (USA) Inc., Sony Interactive Entertainment LLC., Sony Pictures Entertainment
`
`Inc., Sony Music Entertainment and Sony/ATV Music Publishing LLC.
`
`6
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 7 of 33
`
`24. Defendant Sony Interactive Entertainment LCC is responsible for the PlayStation
`
`brand and family of products and services. It is headquartered at 2207 Bridgepointe Parkway, San
`
`Mateo, California, 94404 and is a wholly-owned subsidiary of Sony Corporation and has global
`
`functions in California, London, and Tokyo.
`
`FACTUAL ALLEGATIONS
`
`A.
`
`PS5/DualSense Controllers and Nature of the Defect
`
`25. The PS5 is a video gaming system and console that was initially released by Sony
`
`in mid-November 2020. The launch of the PS5 was a highly anticipated event. In a YouTube
`
`promotional video released by Sony at the end of October 2020, Sony promoted the PS5 as having
`
`“no limits.”9 It was clear that Sony was advertising the PS5 as a top-of-the-line system, stressing
`
`the “power of a custom CPU, GPU and SSD with Integrated I/O that rewrite the rules of what a
`
`PlayStation console can do;” “marvel at incredible graphics and experience new PS5 features;”
`
`“enjoy faster and smoother frame rates in select [ ] games;” “discover a deeper gaming experience
`
`with support for haptic feedback, adaptive triggers and 3D Audio technology.”10
`
`26. The PS5, which comes standard with one DualSense Controller, is depicted below.
`
`The DualSense Controller is the only controller that is fully compatible with the PS5 console.
`
`
`9 See https://www.playstation.com/en-us/ps5/ (last accessed Feb. 10, 2021).
`10 See id.
`
`7
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 8 of 33
`
`
`
`27. Sony marketed the DualSense Controller as “push[ing] the boundaries of play” by
`
`offering a “deeper, highly immersive gaming experience,” due to the “innovative new PS5
`
`controller[‘s]” haptic feedback and dynamic trigger effects.11 An image of the front of the
`
`DualSense Controller is pictured below:
`
`
`11
`https://www.playstation.com/en-us/accessories/dualsense-wireless-controller/
`See
`accessed Feb. 10, 2021).
`
`(last
`
`8
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 9 of 33
`
`28. Below is an image of the DualSense Controller from the side:
`
`
`
`
`
`
`
`9
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 10 of 33
`
`29.
`
`Securing a PS5 console—particularly given the timing of the release right before the
`
`holidays— proved to be a “herculean task.”12 Reports in early 2021 indicated that Sony had sold
`
`over four million PS5 units and showed “no signs of slowing down in 2021.”13 The demand for the
`
`PS5 going into the 2020 holiday season was incredible, and the system quickly sold out
`
`everywhere.14
`
`30. The DualSense Controllers each contain two joysticks and several buttons that are
`
`used to control gameplay.
`
`31. Sony heavily advertised the versatility and quality of the DualSense Controllers for
`
`gameplay as a main selling point of the PS5 system. For example, on its website, Sony makes the
`
`following representations about the DualSense Controllers15:
`
`• “The DualSense Wireless Controller is the controller for PS5 including several
`next-generation features like haptic feedback and dynamic adaptive triggers;”
`
`• “Discover a deeper, highly immersive gaming experience* that brings the
`action to life in the palms of your hands;”
`
`• “Enjoy a comfortable, evolved design with an iconic layout and enhanced
`sticks;”
`
`• “Intuitively interact with select games using the integrated motion sensor.”
`
`
`
`
`
`
`
`
`
`32. A new PS5 retails for approximately $499.99 and includes one DualSense controller
`
`(as depicted above).
`
`
`12 See Reves, Brianna, PS5 Is ‘Biggest Console Launch Of All Time’ According to PlayStation
`CEO,” ScreenRant (Jan. 11, 2021), available: https://screenrant.com/ps5-biggest-console-launch-
`all-time-playstation-ceo/ (last accessed Feb. 10, 2021).
`13 See Baird, Scott, PS5 Sells Over 4 Million United Since Launch & Shows No Signs Of Stopping,
`ScreenRant (Jan. 3, 2021), available: https://screenrant.com/ps5-sales-4-million-xbox-series-
`nintendo-switch/ (last accessed Feb. 10, 2021).
`14 See id.
`15
`https://direct.playstation.com/en-us/accessories/accessory/dualsense-wireless-ps5-
`controller.3005715?smcid=pdc:us-en:web-pdc-accessories-dualsense-wireless-
`controller:buttonblock-buy-now (last accessed Feb. 10, 2021).
`
`10
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 11 of 33
`
`33. Standalone DualSense Controllers can be purchased for $69.99 each.
`
`34. The DualSense Controllers are defective. Specifically, the joysticks on the
`
`DualSense Controllers suffer from a defect that results in the joysticks “drifting” on their own.
`
`This affects gameplay such that the characters or action on the screen move as if there has been
`
`some movement of the joystick by a gamer, even though there has not.
`
`35. Drifting significantly interferes with gameplay. Since the entire purpose of the PS5
`
`is to play video games and the purpose of the DualSense Controller specifically is to control the
`
`gameplay in those video games, the Drift Defect affects the device’s central functionality.
`
`36. The cause of drifting is reported to be a common design defect with the analog
`
`joystick used in the DualSense Controller and past controllers, such as the Xbox One and the
`
`DualShock 4 controllers that came with the PlayStation 4 console.16 The “common denominator”
`
`at the base of the “drift” of the analog joystick is reportedly the “quality of the unit used.”17 As
`
`one report explains:
`
`No [joy]stick is built specifically for a console controller – these are units that have
`been on the market for years; that’s why the problem is common to different
`consoles spanning multiple generations. To demonstrate this, the iFixit teardown,
`for example, showed that the DualSense levers are the same as those used for the
`DualShock 4. The idea is to save on the construction of each controller, despite the
`problems that are then caused to the players.18
`
`Thus, the problem is destined to repeat itself as long as Sony uses the same unit which
`
`
`
`
`
`deteriorates over time and registers contacts which did not, in actuality, take place (i.e. drifting).
`
`
`16 The PS5’s DualSense also suffers from the “drift” of the sticks: because so many pads have
`the same problem, Italy24News (Feb. 10, 2021), available:
`https://www.italy24news.com/en/2021/02/the-ps5s-dualsense-also-suffers-from-the-drift-of-the-
`sticks-because-so-many-pads-have-the-same-problem.html (last accessed Feb. 10, 2021).
`17 Id.
`18 Id.
`
`11
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 12 of 33
`
`B.
`
`Customer Complaints
`
`37. Plaintiff’s experiences with the drifting phenomenon are by no means isolated or
`
`outlying occurrences. Indeed, the internet is replete with examples of message boards and other
`
`websites where consumers have complained of the exact same Drift Defect.
`
`38. Some consumers report experiencing drift on multiple DualSense controllers,
`
`including controllers they purchased separately from their PS5:
`
`19
`
`39. Scores of DualSense Controller owners have publicly complained about the Defect
`
`and drift. Since the PS5 was released in November of 2020, players have taken to social media to
`
`gripe about their experiences with DualSense drift. Users report experiencing drift on the
`
`DualSense Controller that came with the PS5 right out of the box, such as Plaintiff, or within only
`
`several days of use:
`
`
`
`19
`https://www.reddit.com/r/PS5/comments/jzkqf7/in_case_you_didnt_know_the_dualsense_is_in_
`fact/ (last accessed Feb. 11, 2021).
`
`
`12
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 13 of 33
`
`20
`
`21
`
`40. Another Reddit user reported experiencing the issue only 10 days after receiving
`
`their PS5, stating they tried every possible fix—power-cycling the console, turning Bluetooth on
`
`and off, resetting the controller, and, finally, charging it fully overnight—to no avail.
`
`
`20 https://www.reddit.com/r/PS5/comments/jvw04p/my_dualsenses_right_stick_starts_drifting/
`(last accessed Feb. 11, 2021).
`21 See
`https://www.reddit.com/r/PS5/comments/kb8cb6/anyone_else_experiencing_dualsense_stick_dri
`ft/ (last accessed Feb. 11, 2021).
`
`13
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 14 of 33
`
`41. The following are additional examples of the complaints submitted on forums and
`
`social media websites by DualSense Controller owners (which upon information and belief are
`
`monitored by Sony). Below is just a sampling of the many complaints.23
`
`22
`
`
`22See
`https://www.reddit.com/r/PS5/comments/jzkqf7/in_case_you_didnt_know_the_dualsense_is_in_
`fact/ (last accessed Feb. 10, 2021).
`23 The following complaints are reproduced as they appear online. Any typographical errors are
`attributable to the original author.
`
`14
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 15 of 33
`
`24
`
`25
`
`
`24 https://twitter.com/Nalverus/status/1357612378830077952 (last accessed Feb. 10, 2021).
`25 https://www.reddit.com/r/PS5/comments/kb2sql/ps5_dual_shock_controller_stick_drift/ (last
`accessed Feb. 11, 2021).
`
`15
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 16 of 33
`
`26
`
`27
`
`C.
`
`Knowledge
`
`42. Sony is aware of the DualSense Defect. In the first place, Sony controls the
`
`manufacture, development, marketing, sales, and support for the PS5 and DualSense Controllers.
`
`Accordingly, Sony was responsible for performing pre-release testing on the PS5 and DualSense
`
`Controllers which should have alerted it to the Defect.
`
`43. Additionally, the DualSense Controller’s predecessor, the DualShock 4 wireless
`
`controller that came with the PlayStation 4—released in November of 2013—also experienced
`
`drift. By mid-2014, users reported that their PlayStation 4 controllers would drift on its own instead
`
`
`26
`https://www.pushsquare.com/news/2021/02/poll_have_you_been_experiencing_drift_on_your_d
`ualsense_ps5_controller (last accessed Feb. 11, 2021).
`27 https://www.reddit.com/r/PS5/comments/k1bhzh/dualsense_drift/ (last accessed Feb. 11,
`2021).
`
`16
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 17 of 33
`
`of where the user directed it to go.28 Yet, despite being aware of joystick drift in the DualShock 4,
`
`Sony equipped the DualSense 5 with virtually the same analog components. A recent teardown of
`
`the PS5 and DualSense Controller by iFixit revealed that the two joysticks in the DualSense
`
`Controller were “basically identical to the Alps-brand sticks from the DualShock 4,” and indicating
`
`that the joysticks were still “prone to drift.”29
`
`44. The image below demonstrates the inside of the deconstructed DualSense Controller
`
`with the researcher holding one of the two joysticks with a pair of tweezers”
`
`
`
`
`
`45. Further, Sony has received droves of complaints about this issue both directly from
`
`consumers and through online forums and social media sites that it monitors. Not only that, Sony
`
`is well-aware that the drift phenomena have been plaguing the gaming community for years, with
`
`
`28 See https://www.amazon.com/DualShock-Wireless-Controller-PlayStation-Black-4/product-
`reviews/B00BGA9X9W/ref=cm_cr_arp_d_viewopt_kywd?pageNumber=1&filterByKeyword=d
`rift (user complains of “the character on screen slowly drift down without me touching the right
`analog stick” and reports contacting Sony about the issue) (last accessed Feb. 10, 2021);
`https://www.reddit.com/r/PS4/comments/2rvyie/dualshock_4_analog_stick_drifting/
`(reporting
`left analog drifting on a DualShock 4 controller that was about a year old) (last accessed Feb. 10,
`2021);
`29 See https://www.amazon.com/DualShock-Wireless-Controller-PlayStation-Black-4/product-
`reviews/B00BGA9X9W/ref=cm_cr_arp_d_viewopt_kywd?pageNumber=1&filterByKeyword=d
`rift (last accessed Feb. 10, 2021).
`
`17
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 18 of 33
`
`reports indicating that similar controllers from other well-known manufacturers had also been
`
`experiencing the drifting defect, as well as the prior model of the PlayStation 4 controller, the
`
`DualShock 4. Despite this knowledge, Sony has done nothing to modify the materials or design of
`
`the DualSense Controllers or otherwise respond to or correct drift.
`
`46. Sony is well aware this type of defect would be material to its customers. In a recent
`
`patent application relating to reducing small amounts of lag in DualSense Controllers, Sony
`
`acknowledged: “with the growing sophistication of computer simulations such as computer games,
`
`players have become increasingly demanding of performance, one index of which is latency
`
`between gamer input and the resulting action on screen.”30 Drifting, where the action on the screen
`
`does not follow the gamer input at all, interferes with gameplay significantly more.
`
`47.
`
`It has been reported that, as of January 3, 2021, there have been over 4 million PS5
`
`units sold since the PS5 launched in November of 2020 (not even counting additional DualSense
`
`Controllers purchased separately).31 Clearly, Sony would not be selling a product with such
`
`volume without first conducting extensive presale tests (such as failure analysis, stress tests,
`
`pressure tests, and friction tests)—especially in light of the public backlash for drifting in its
`
`competitors’ products—before bring the PS5 to market.
`
`48. As already noted, Sony touted the DualSense Controller’s design as being highly
`
`innovative and contributing to the overall enhanced gaming experience of the PS5.
`
`49. The PS5 was first released in November 2020 and is still on the market today.
`
`50. Despite knowing about the Drift Defect, Sony continues to market and sell the PS5
`
`
`30 See https://pdfaiw.uspto.gov/.aiw?Docid=20210031100 (last accessed Feb. 11, 2021).
`
`31 See Baird, Scott, PS5 Sells Over 4 Million United Since Launch & Shows No Signs Of Stopping,
`ScreenRant (Jan. 3, 2021), available: https://screenrant.com/ps5-sales-4-million-xbox-series-
`nintendo-switch/ (last accessed Feb. 10, 2021).
`
`18
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 19 of 33
`
`and DualSense Controllers without disclosing the defect.
`
`51. The latest DualSense update, 0210, did not address the Defect. Nor did the latest
`
`PS5 firmware update. There is no indication that Sony has anything in progress to fix or otherwise
`
`address the Drift Defect, and it has not spoken publicly about any plans to do so.
`
`52. Sony could easily disclose the Defect to potential consumers in any number of ways,
`
`including on the product’s packaging, in the user manual, on its website, or on its set-up screen. It
`
`does not do so and instead conceals the Defect from consumers.
`
`53. The options for consumers to fix a broke DualSense Controller with drift are slim:
`
`consumers can either go through Sony’s PlayStation page, which has a dedicated portal for issues
`
`with PS5 hardware, for troubleshooting, or incur the out-of-pocket shipping cost of mailing the
`
`DualSense Controller to Sony for repairs. Consumers who mail their DualSense Controllers to
`
`Sony are then left without the use of their DualSense Controller for an upward of several weeks
`
`depending upon the consumer’s location and the severity of the issue.32
`
`54. Moreover, the DualSense Controller is the only controller that is fully compatible
`
`with the PS5 console. Thus, users experiencing drift are forced to either play with a defective
`
`controller or be without their DualSense Controller for weeks on end while awaiting repairs (or
`
`incur the out-of-pocket cost of purchasing a replacement DualSense Controller).
`
`55. Users express frustration at the significant wait times to speak with an agent from
`
`Sony Support, and having to run through a maze of prompts and pre-recorded messages before
`
`speaking with a live operator. One user lamented that Sony Support was “an Infinite Loop” ping-
`
`
`32 See Martinez, Phillip, PS5 DualSense Controller Experiencing Its Own ‘Joy-Con Drift,’”
`Newsweek (Feb. 10, 2021), available: https://www.newsweek.com/ps5-drift-joy-con-issue-how-
`fix-playstation-support-dualsense-controller-
`1568265#:~:text=Unfortunately%2C%20gamers%20will%20have%20to,the%20severity%20of
`%20the%20issue. (last accessed Feb. 10, 2021).
`
`19
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 20 of 33
`
`ponging him back and forth between the website and phone support team specialists, while offering
`
`no real solutions:
`
`
`
`33
`
`
`33 See https://www.reddit.com/r/PS5/comments/kqdmzc/sony_support_is_an_infinite_loop/ (last
`accessed Feb. 10, 2021).
`
`20
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 21 of 33
`
`
`
`34
`
`56. 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. 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. One user reported his experience with sending in his brand new controller
`
`for drift and receiving a refurbished one in exchange.
`
`57.
`
`Indeed, public complaints posted online already show several reports of consumers
`
`
`34 https://twitter.com/chompa40873840/status/1359864337956040712 (last accessed Feb. 11,
`2021).
`35 https://www.reddit.com/r/PS5/comments/kb2sql/ps5_dual_shock_controller_stick_drift/ (last
`accessed Feb. 11, 2021).
`
`35
`
`21
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 22 of 33
`
`experiencing drift again after receiving refurbished or replacement DualSense Controllers back
`
`from Sony.
`
`36
`
`58. Because of Sony’s actions, DualSense Controller owners have suffered damages in
`
`the form of loss of use, failure of the PS5 and DualSense Controller’s core functionality, loss of
`
`the benefit of their bargain, diminution of value of and overpayment for their PS5 and DualSense
`
`Controllers, and lost time and expense involved in contacting Sony and retailers about the problem
`
`and waiting for replacements and/or repairs.
`
`59. Based upon the allegations in this lawsuit and scores of internet complaints online
`
`about drifting in prior models of the DualShock Controller, Sony cannot dispute that it had presale
`
`knowledge of the Drifting Defect in the DualSense Controller.
`
`CLASS ACTION ALLEGATIONS
`
`60. This action is brought, and may properly proceed, as a class action, pursuant to Rule
`
`23(a) and 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure. Plaintiff seeks certification
`
`of a Class defined as follows (“Nationwide Class”):
`
`Nationwide Class:
`
`All persons in the United States who bought a PS5 or stand-alone DualSense
`Controller.
`
`
`
`
`36
`https://www.reddit.com/r/PS5/comments/kb8cb6/anyone_else_experiencing_dualsense_stick_dri
`ft/ (last accessed Feb. 10, 2021).
`
`22
`
`

`

`Case 1:21-cv-01299 Document 1 Filed 02/12/21 Page 23 of 33
`
`
`
`In addition, or in the alternative, Plaintiff seeks certification of the following State
`
`Subclass:
`
`Virginia Subclass:
`
`All persons who bought a PS5 or stand-alone DualSense Controller in the
`state of Virginia.
`
`61. Excluded from the Classes is Sony, its affiliates, employees, officers and directors,
`
`persons or entities that purchased the PS5 or DualSense Controllers for resale, and the Judge(s)
`
`assigned to this case. Plaintiff reserves the right to modify, change, or expand the class definitions
`
`if discovery and/or further investigation reveal that they should be expanded or otherwise
`
`modified.
`
`62. Numerosity: The Class is so numerous that joinder of all members is impracticable.
`
`While the exact number and identities of individual members of the Class is unknown at this time,
`
`such information being in the sole possession of Sony and obtainable by Plaintiff only through the
`
`discovery process, Plaintiff believes, and on that basis allege, that at leas