Sony Seeks Dismissal of PS3 Firmware Suit

1 Dec, 2009 By: Chris Tribbey

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Lawyers for Sony Computer Entertainment America (SCEA) plan on seeking a dismissal of a class-action suit alleging firmware updates for the PlayStation 3 weren’t adequately tested, freezing some consoles and rendering the Blu-ray Disc drive inoperable on others.

According to court documents, SCEA will seek the dismissal Dec. 21 in U.S. District Court in San Francisco, alleging the plaintiff, Florida resident John Kennedy, filed “deficient” claims against the company.

“Based on nothing more than the notion that his PS3 was ‘degraded’ by Firmware 3.0, Kennedy [asserts] seven district claims for relief in a consummate example of shotgun pleading,” the court filing reads. “Kennedy offers a laundry list of claims that necessarily depend on facts notably missing from the complaint.”

Kennedy’s suit accuses SCEA of negligence, breach of implied warranty, misrepresentation, unjust enrichment, and violations of California-specific business and consumer laws. SCEA’s filing picks apart each claim — except negligence. The filing makes no assertion that the firmware update did or did not cause problems to some machines.

The filing argues that since Kennedy’s PS3 was damaged following the Sept. 1 firmware release, and not when he purchased the gaming console, there was no breach of implied warranty. The filing also notes that Kennedy’s PS3 did not completely fail.

“In this case, Kennedy does not allege that his PS3 failed completely — i.e., that it is unable to perform its basic function as a gaming and movie console,” the filing reads. “Instead, he only alleges that it was ‘degraded’ and he ‘lost value’ in it, thereby implicitly admitting that his console is still operative and merchantable.”

The filing also notes that Kennedy can’t prove that SCEA intended to damage any PS3s, and if he could, “the resulting damage must be intentional.” Kennedy and others on gaming forums also have complained that SCEA is charging consumers $150 each to repair the machines. To that complaint, SCEA responded: “California law does not recognize an independent claim for ‘unjust enrichment.’”

A second class-action lawsuit has been filed in U.S. District Court in San Francisco regarding firmware updates 3.0 and 3.01, this time on behalf of two residents, one in Texas the other in Iowa.

Alleging the same problems Kennedy and others encountered, and seeking similar damages, SCEA has asked for the two suits to be heard in the same court.

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