Parent Opposes Epic Games’ Motion to Dismiss Unauthorized Purchase Class Action

On Monday in the Northern District of California, a parent opposed Epic Games’ motion to dismiss the class-action suit brought against it regarding the plaintiff’s minor child’s use of real money to pay for virtual items in the popular video game Fortnite.

Previously, Epic Games filed a motion to dismiss, asserting that the plaintiffs lack standing, or, in the alternative, asked for the matter to be considered through arbitration. February’s class-action suit alleged that Epic Games misled minors to use real money for in-game purchases for nonrefundable virtual currency in video game Fortnite without involving parents or guardians in the purchasing process.

According to the opposition, “Epic Games seeks to evade this Court’s jurisdiction over those claims so that it might conclude a settlement in North Carolina state court that would not get approved here.”

In particular, the plaintiffs noted that in C.W. v. Epic Games, “a minor plaintiff no different from the plaintiff here brought class claims seeking declaratory, injunctive, and monetary relief from Epic Games on causes of action founded on a minor’s legal right to disaffirm purchases of virtual items made in Fortnite and related theories.” The K.W. plaintiffs claimed that, in the other suit, Epic Games moved to compel arbitration; however, Judge Gonzalez Rogers denied the motion because C.W. disaffirmed those agreements. Then, Epic Games moved to dismiss the C.W. suit, claiming that since C.W.’s Fortnite purchases were “concluded in the Apple (iTunes) and Sony (PlayStation) marketplaces, C.W. had no disaffirmation claim directly against Epic Games.” However, the judge rejected this claim, and, subsequently, the C.W. suit survived these motions. The K.W. plaintiffs noted that the instant action “is a continuation of C.W., filed one month after it was voluntarily dismissed.”

The K.W. plaintiffs claimed that, similarly, the plaintiff is a minor Fortnite player seeking relief and the class-action was “founded on a minor’s legal right to disaffirm purchases of virtual items in Fortnite and related theories.” The plaintiffs stated that the minor class and claims in K.W. are similar to that in C.W.

“(T)he only significant difference between the two cases is that this one also involves claims brought by the minor’s guardian on behalf of a class of California parents … but nothing in the motion to dismiss or compel hinges on that difference,” according to the operative plaintiffs.

Furthermore, the plaintiffs contended that Epic Games “should not have filed its motion here,” adding that Epic Games “does not argue that Judge Gonzalez Rogers’ rulings were mistaken, so those are a given. And its efforts to show that this case is different are either factually inaccurate or legally irrelevant.”

In particular, the plaintiffs asserted that Epic Games’ claims that the instant action was moot because it offered K.W. a refund, which the plaintiff rejected, is barred by Ninth Circuit precedent, which held that “a defendant cannot moot a class action by satisfying the named plaintiff’s individual claim.” Therefore, the plaintiffs argued that the defendant’s “effort to characterize the refund as its ‘acceptance’ of a ‘proposal’ K.W. made by disaffirming his contracts – and not an attempt to moot the case by satisfying his individual claim – does not make sense.”

The plaintiffs argued that Epic Games’ argument that K.W. lacks standing “because K.W. did not make any purchases from it is make-weight.” Specifically, the plaintiffs claimed that K.W. completed at least one in-game Fortnite purchase.

According to the plaintiffs, Epic Games’ assertion that K.W. “must arbitrate because he clicked agreements requiring acceptance by an adult was rejected in C.W.” Additionally, the plaintiffs proffered that Epic Games’ claims that it thought “K.W. was acting as agent for an adult is wrong because, among other reasons, Epic Games knows that it is dealing with children.”

The plaintiffs added that Epic Games waived its right to arbitrate “by affirmatively and through dubious tactics seeking to channel Plaintiffs’ claims to a North Carolina state court for resolution.”

Lastly, the K.W. plaintiffs averred that Epic Games’ motion to dismiss “rests on multiple assertions of fact that are both disputed and questionable.”

Therefore, the plaintiffs ask the court to grant leave to conduct discovery for subject matter jurisdiction and arbitrability.

The plaintiff is represented by One LLP and Bay Advocacy PLLC. Epic Games is represented by Faegre Drinker Biddle & Reath LLP.