Gamers Attempt to Resist Dismissal in PlayStation Digital Video Game Antitrust Suit

A class of gamers who purchased digital format PlayStation video games have rebutted arguments aimed at ending their antitrust campaign against Sony Interactive Entertainment LLC over its alleged monopolization of “the $17 billion market for downloadable, digitally-delivered video games and add-on content compatible with its PlayStation video game console.” 

Monday’s opposition contends that the plaintiffs have properly alleged the underlying elements of a Sherman Act monopolization claim and urges the Northern District of California court to let the suit proceed.

As previously reported, game purchases filed suit last May contending that in April 2019, Sony eliminated competition from other video game retailers like Best Buy and GameStop and insisted that consumers purchase digital format video games from it and its PlayStation Store alone. The opposition says that Sony thereby created a “walled garden,” effectively shielding it from price competition.

For its part, Sony took aim at the plaintiffs’ “single platform” monopoly theory arguing that in fact it competes with Nintendo and Microsoft for gamers’ business. In addition, the motion to dismiss knocked the plaintiffs’ claim that Sony’s business decision creates antitrust liability that would require Sony to restructure its model. The notion is a bridge too far, Sony contended, pointing to antitrust jurisprudence.

In this week’s opposition, the plaintiffs prop up their antitrust contentions and claim they have stated a claim for relief under California’s Unfair Competition Law.

According to the filing, “digital PlayStation games constitute a properly pled relevant antitrust aftermarket which stems from the primary market for video game consoles.” The plaintiffs point to a 2010 decision by a Northern District magistrate judge recognizing an antitrust aftermarket concerning Sony competitor Microsoft’s “Xbox 360 accessories and add-ons.”

The plaintiffs also disclaim Sony’s arguments about anticompetitive harm, countering that Sony’s elimination of competition for the sales of digital video games has straightforwardly allowed Sony to charge supracompetitive prices.

Similarly, the plaintiffs affirm their contentions that they paid more for video games than they would have in the presence of a competitive retail market. “Antitrust injury can also be reasonably inferred where a formerly competitive market is reduced to a sole supplier, as happened here,” the filing notes.

The motion hearing is scheduled for May 19 before Judge Richarg Seeborg.

Sony is represented by Shearman & Sterling LLP. The plaintiffs are represented by interim lead counsel Motley Rice LLC and also Westerman Law Corp., Milberg Coleman Bryson Phillips Grossman PLLC, and Joseph Saveri Law Firm LLP.