A 32-page opposition filed on Monday argues that the consumer plaintiffs’ latest pleading overcomes Sony Interactive Entertainment LLC’s motion to dismiss their antitrust complaint, which alleges that Sony engaged in monpolisitic conduct by deciding to sell digital copies of its video games through the PlayStation Store only. The plaintiffs contend that Sony’s renewed bid to dismiss the case both attempts to make them plead elements outside the law and disputes facts or inferences that should be resolved at a later stage.
As previously reported, the 2021 consolidated action alleges that Sony monopolized the $17 billion market for Sony downloadable, digitally delivered video games and supplemental content. The theory goes that Sony eliminated competition for digital games by ending its relationship with retailers such as Amazon, Best Buy, and GameStop in violation of federal and state antitrust law.
For years before the April 2019 change, Sony competed with retailers by permitting them to sell digital game copies. The video game developer ended those profitable relationships to become a monopoly seller, the plaintiffs allege, all the while erecting a “walled garden” that forces consumers to buy digital games exclusively from the PlayStation Store at higher prices.
Sony moved for dismissal on multiple grounds. Judge Richard Seeborg upheld the motion, finding that the pleading lacked sufficient detail of the alleged antitrust conduct. However, the court ruled in favor of the plaintiffs as to antitrust injury.
Monday’s brief asserts that the August-filed amended complaint redresses the deficiencies Judge Seeborg cited previously. Newly added facts demonstrate “Sony’s longstanding and profitable Digital Game business relationship with Retailers,” the complaint says, pointing to examples of post-April 2019 financial loss.
In addition, the motion explains that Sony refused to deal with retailers while continuing to offer the same digital games in the PlayStation Store, in support of its refusal to deal cause of action. Finally, the opposition accuses Sony of misrepresenting the applicable law in a new argument allegedly “predicated upon an incorrect Tenth Circuit refusal to deal standard.”
The motion to dismiss hearing is scheduled for December 1.
Sony is represented by Shearman & Sterling LLP and the plaintiffs by interim lead counsel Motley Rice LLC.