The firm behind the recent PS5 DualSense drift lawsuit is encouraging possible members of the class action to opt out of Sony’s forced arbitration clause, potentially allowing the case to more easily reach a courtroom.In a new page on its website, law firm CSK&D explains that an arbitration clause in the terms you must agree to before playing games on PS5 could be enforced, meaning consumers (including those in a class action) could not pursue claims in a court.

However, Sony offers a manual opt-out of the clause, as long as a letter is written to the company within 30 days of booting the system. CSK&D is now offering a template for the opt-out letter, and will send it to Sony on potential claimants’ behalf.

A recent CSK&D drift lawsuit for Nintendo Switch Joy-Cons was moved into arbitration. Asked by IGN if the opt-out could make the PS5 case’s result differ from the Nintendo case, CSK&D partner Benjamin F. Johns replied, “The only comment I can offer on this issue is that this procedure has been used successfully in other contexts which we think are analogous here.”

A US lawfirm has filed a class action lawsuit against Sony, alleging that the PS5 DualSense controller is defective due to drift, and that Sony was aware of the problem without disclosing it. The suit calls Sony’s conduct, “fraudulent, deceptive, unlawful, and unfair”.

Last week, we reported on an investigation into DualSense drift by law firm Chimicles Schwartz Kriner & Donaldson-Smith LLP (CSK&D). The firm has now formally filed a class action suit in the US District Court for the Southern District of New York. In documents provided to IGN, the suit is filed on behalf of plaintiff Lmarc Turner and “all others similarly situated”, and names the defendants as Sony Corporation of America and Sony Interactive Entertainment. To IGN’s knowledge, this is the first such suit filed against Sony regarding DualSense – it may well not be the last.

The complaint describes the PS5 DualSense controller as “defective”, as it contains “a defect that results in characters or gameplay moving on the screen without user command or manual operation of the joystick”, known popularly as controller drift. Further, the complaint alleges that Sony has “at all relevant times” been aware of the problems with drift, “through online consumer complaints, complaints made by consumers directly to it, and through its own pre-release testing.”The suit also alleges that Sony’s options for controller repair are too limited: “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.”

The suit seeks a jury trial, and “monetary relief for damages suffered, declaratory relief, and public injunctive relief.” The documents point to counts of breach of excess warranty, breach of implied warranty of merchantability, unjust enrichment, and violations of the Virginia Consumer Protection Act.

The Virginia-based plaintiff, Lmarc Turner, reportedly bought their PS5 on or around February 5, 2021, and found that it was suffering from drift on the same day. Turner apparently then contacted Sony customer service, and was told to reset the game and console, but offered no further assistance. The issue not solved, Turner then bought a second DualSense. “Had Plaintiff been aware of the Drift Defect prior to purchasing his PS5,” the documents add, “he otherwise would not have purchased the PS5, or would have paid substantially less for it.”

One interesting extra detail: Turner admits to having agreed to Sony’s terms and conditions when setting up the PS5, but reportedly sent a letter to Sony expressing an intent to opt out of “any disputes with Sony through individual arbitration.” A separate CSK&D class action suit against Nintendo regarding controller drift was recently compelled to arbitration before reaching the courts. It may be that a similar move isn’t possible in this case, making it more likely to reach the requested jury trial.Aside from Turner’s report, the documents show a number of examples of social media comments regarding PS5 drift, with players complaining of drift out of the box, or within days of use. CSK&D points to reports of drift on the PS4’s Dualshock 4 controllers, too – given that the sticks inside both controller models are similar, CSK&D adds that to its evidence of Sony’s prior knowledge of the problem.

The suit says there is “no indication” that Sony has developed a fix for drift in the DualSense: “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 suit calls for relief in the form of an order to stop Sony’s “unlawful, deceptive, fraudulent, and unfair business practices”, the set-up of a recall or free replacement program for DualSense controllers, compensatory damages, and more.

IGN has contacted Sony for comment on the lawsuit.

Drift has become an increasingly hot topic in recent years. We’ve previously called drift in Nintendo Switch Joy-Con controllers a “disaster” for the company, and Nintendo is now facing official scrutiny and lawsuits across the world, including an investigation from the European Commission.

Joe Skrebels is IGN’s Executive Editor of News. Follow him on Twitter. Have a tip for us? Want to discuss a possible story? Please send an email to [email protected].





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