Class Says Sony Changed Rules Midstream

SAN FRANCISCO (CN) - A federal class action claims Sony unfairly changed the terms of use for its PlayStation 3 games, forcing customers to waive their right to sue to keep playing.

Lead plaintiff Stephen Fineman says Sony imposed its new terms of use on Sept. 15, forcing even longtime owners of the game system to agree to the new terms -including mandatory arbitration - if they wanted to keep using Sony's online gaming and entertainment network.

Clicking to agree to terms of service was part of a straightforward product registration process. But on April 27 this year the U.S. Supreme Court issued a ruling in Concepcion v. AT&T Corp. that broadened the validity of arbitration clauses and class action waivers.

"Thereafter," Fineman says, "Defendants conspired to change the pre-September 2011 PSN Terms of Use such that in order to continue to access the PSN, all existing PSN users would be compelled to waive their existing rights to sue defendants in a class action in exchange for no consideration."

Fineman says the new terms of use are 21 pages long, and that while there is a notice of binding individual arbitration and class action waiver, "rather than placing the actual arbitration clause and class action waiver near the notice, in order to discourage the plaintiff and class members from carefully reviewing them, defendants placed the provisions near the end of the terms of use, on the equivalent of page 17. ...

"To further discourage users from carefully reviewing the September 2011 PSN terms of use, including the arbitration clause and class action waiver, defendants prevented users from easily accessing the terms on the Internet. The September 2011 terms of use could only be located if a user expended significant time navigating through multiple Sony websites.

"In contrast ... all versions of the pre-September 2011 PSN terns of use contained a web address to allow consumers to review and print the terms of use."

Those weren't the only hurdles Sony erected, Fineman says.

To opt out, a user must first agree to the terms of use, then within 30 days send written notice to Sony's legal department, "which must include a 'clear statement that you do not wish to resolve disputes with any Sony entity through arbitration.'"

This notice cannot be given online through Sony's websites, by email or by telephone, Fineman claims.

He adds: "In order to discourage users from invoking the arbitration clause, defendants included language that made it difficult for users to recover their attorney's fees. Even if a user prevails in arbitration against any defendant or other Sony entity, if the claim is less than $75,000, a user can only recover his or her attorney's fees if he or she has first provided notice to, and negotiated in good faith with, the defendant before pursuing arbitration."

Fineman seeks restitution, declaratory judgment, an injunction, costs and damages for breach of faith and fair dealing, and unfair competition.

He is represented by Jeffrey Berns with Berns Weiss of Woodland Hills.

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