A federal judge has unplugged a class action seeking to hold Amazon liable for sales of allegedly defective Sony PlayStation video game consoles.
Evan Castaneda sued the online retail giant, saying he bought a PlayStation 5 from Amazon the month Sony released the devices, November 2020, paying $500 plus sales tax. He alleged violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, along with two warranty claims and one for unjust enrichment. Amazon moved to dismiss the complaint.
“After six months, things started going haywire,” U.S. District Judge Steven Seeger wrote in an opinion filed June 26. “The PlayStation 5 began powering down out of the blue, right when Castaneda was in the middle of a game. Just like that — without warning — the game would come to screeching halt, and the console would turn off. By shutting down, the PlayStation 5 would erase all of his hard-earned progress in whatever game he was playing. Anyone who has lived with a gamer can imagine the reaction that likely followed, and the agony emanating from the couch.”
According to Seeger, Castaneda’s complaint implies all PS5’s have a latent defect, and his lawsuit against the retailer — instead of the manufacturer — includes allegations of misrepresentations and omissions on the Amazon website rooted in a claim Amazon knew the Sony product was defective.
“Castaneda points to a small handful of consumer complaints about the PS5 on Amazon’s website,” Seeger wrote. “He thinks that Amazon knew about the defects because three or four other gamers experienced the same problem.”
The complaint said a workaround to avoid unexpected shutdowns is playing games built for the older PlayStation 4, which Castaneda said contributed to his deceptive marketing allegations as the Amazon website touted the console as the only way to play the most recent versions of games.
Amazon, Castaneda alleged, “was in control of the advertising and sale of the PS5 on its own marketplace, was aware of the console defect through online consumer complaints and the overall recognition of the defect in the gaming community.”
The problem with that contention, Seeger explained, is that Castaneda’s “complaint musters only four examples. Four other gamers experienced the same problem, despite untold hours spent playing the PS5 by untold numbers of gamers.”
In agreeing to dismiss the complaint, Seeger said Castaneda’s complaint doesn’t identify a false statement on which to build a fraud allegation.
“The simple reality is that Castaneda’s game console worked for six months, and then broke,” Seeger wrote. “But Amazon never promised that the PS5 would work forever. And it never guaranteed that the machine would not break. It said that the machine would offer a fast, immersive gaming experience.”
Aside from not promising the console would never break, Seeger said, the other statements from the Amazon product page meet the legal definition of “puffery” — subjective, promotional descriptions not to be reasonably construed as ironclad promises.
“The key point is that the statements can’t be tested, so they can’t be verified, so they can’t be false,” Seeger wrote. “True, the speed of a game console is something that a person can measure. You can take out a stopwatch and see how quickly a game console can load a game, or process a battle, or deliver who-knows-what visual effects. Even so, no reasonable consumer would expect literal ‘lightning speed.’ And once literal lightning is off the table, the applicable standard is in eye of the gamer. How fast is lightning fast?”
Seeger agreed the promise a PS5 could play PS5 games is binary and verifiable, but isn’t actionable because “the complaint does not include enough details to give rise to a plausible inference that the PlayStation 5 suffers from a latent design defect.” He also noted one of the four Amazon reviews Castaneda cited as evidence the company knew it was selling defective consoles is dated December 2021, long after Castaneda made his purchase. Two of the contemporaneous reviews are anonymous. One review was on a page selling a game, not the console.
Castaneda also cited third-party publications regarding the PS5’s stability, but all such articles were dated after his purchase, undercutting the allegation Amazon knew the product was “defective” upon its release — something Castaneda didn’t suspect for another six months.
“Moreover, the articles primarily provide generic troubleshooting advice — such as checking the power cord, cleaning the console, and removing the PS5 from rest mode,” Seeger wrote. “They do not suggest that the PS5 suffered from an overarching design defect, or that generic troubleshooting advice would put Amazon on notice of a design defect.”
Seeger also said endorsing Castaneda’s liability theory “would quickly get out of hand” given “anyone who has ever researched a product” knows the ease of finding a negative review.
“If anything, the complaint seems to undermine the theory of the case,” Seeger wrote. “How many PS5s did Amazon sell, anyway? Whatever the number is, it’s big. And only a few people complained about the game console shutting down? The number of alleged complaints is smaller than the fingers on your hand. It’s about the same number of lives you would get playing Ms. Pac-Man.”
Castaneda was represented by attorneys Eugene Y. Turin and Jordan R. Frysinger, of the firm of McGuire Law P.C., of Chicago.
Amazon has been represented by attorneys Brian E. Spang, Jennifer J. Nagle, Robert W. Sparkes III and Michael R. Creta, Of the firm of K&L Gates, of Chicago and Boston.