PS5 drift law firm offers arbitration opt-out letter for class action members

The firm behind a PlayStation 5 controller drift lawsuit is employing a new tactic in its bid to ensure the case is settled in a courtroom rather than through arbitration.

The class-action lawsuit, which was filed in February 2021, alleges that PS5 DualSense controllers “contain a defect that results in characters or gameplay moving on the screen without user command or manual operation of the joystick”.

In the US, the terms of PS5’s software license agreement—which users must agree to in order to play games on the console—include an arbitration clause which, if enforced, means consumers may be unable to pursue claims in a traditional court or on a class-wide basis.

However, PS5 owners can opt-out of resolving disputes through arbitration by sending a letter to Sony within 30 days of first booting up their console.

To help them do so, law firm Chimicles Schwartz Kriner & Donaldson-Smith (CSK&D) has prepared a template letter for class-action members to fill out, which it is offering to send to Sony on their behalf.

CSK&D previously filed a similar class-action lawsuit against Nintendo, alleging that the company is aware of a defect which causes Switch Joy-Con controllers to drift. That case was compelled to arbitration, a situation the firm is hoping to avoid a repeat of with the DualSense lawsuit.

Discussing the move to offer consumers an arbitration opt-out letter, CSK&D partner Benjamin F. Johns told IGN: “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.”

The PS5 drift lawsuit accuses Sony of “unfair, deceptive, and/or fraudulent” business practices resulting in unjust enrichment. The action was brought against the company by Virginia-based plaintiff Lmarc Turner, who is seeking monetary relief for damages suffered, declaratory relief and public injunctive relief.

A teardown video published in February investigates why joystick drift occurs in controllers including DualSense and suggests that PS5’s analog sticks have an operating life of around 417 hours.

This means that if a PS5 player used their console for two hours a day, they would technically exceed their controller’s operation life expectancy within seven months.

According to the video by popular tech channel iFixIt, DualSense uses the same off-the-shelf joystick hardware as many other platforms’ controllers, including PS4, Xbox One, Switch and more.

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 case to be taken out of the courtroom by compelling arbitration, which would see disputes resolved by an impartial adjudicator.

Further reading

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PS5 drift investigation suggests DualSense sticks ‘have a life of 417 hours’

Teardown video calls PS5 drifting controller reports “predictable and preventable”