On Monday, Epic Games filed a motion to dismiss a parent’s suit regarding her minor child’s use of real money to pay for virtual items in the video game Fortnite. In the motion, Epic Games asserted that the plaintiffs lack standing and, alternatively, asked for the matter to be considered through arbitration.
In February, the plaintiffs sued Epic Games for allegedly misleading minors to use real money for in-game purchases and for allowing minors to make these purchases without involving a parent or guardian. The parent added that the purchased virtual currency, V-Bucks, is non-refundable.
According to the motion to dismiss, filed in the Northern District of California, the minor plaintiff allegedly established an account with Epic Games to play Fortnite; however, Epic Games claims that neither the minor plaintiff nor the parent plaintiff “ever had any transactions with Epic Games.” Specifically, Epic Games contended that the two purchases on the plaintiffs’ Fortnite player account were made using a third party’s payment method, which allegedly did not belong to either of the plaintiffs. As a result, Epic Games proffered that the plaintiffs lack standing to sue for these transactions.
Additionally, Epic Games averred that it “immediately honored Plaintiffs’ request to ‘disaffirm’ these transactions and refunded all monies spent within” the plaintiffs’ player account. Epic Games argued this action by the defendant moots the plaintiffs’ claims, so they should be dismissed.
Alternatively, Epic Games argued that the court should compel the plaintiffs to arbitrate their claims. Epic Games states that “all persons who open a Fortnite account must affirmatively agree to the Fortnite End User License Agreement (‘EULA’).” Epic Games claims that the EULA states that “‘(t)his agreement contains a binding, individual arbitration and class-action waiver provision,’ and ‘(t)o enter into this license agreement, you must be an adult of the legal age of majority,’ and that ‘(i)f you are under the legal age of majority, your parent or legal guardian must consent to this agreement.’”
Thus, Epic Games averred that since the minor plaintiff created a Fortnite account, the minor plaintiff either “misrepresented his age to Epic Games” or the other plaintiff, his mother, “agreed to the EULA” on his behalf. Epic Games adds that purchases “must be made by adults who must agree to the EULA when they enter payment information.” Consequently, Epic Games alleged that the plaintiffs must arbitrate their claims as mandated by the EULA because their acceptance of the EULA is binding and their dispute falls within the scope of the agreement.
Additionally, Epic Games asked for a stay in this case while the court in another suit against Epic Games, in North Carolina state court, “considers whether to grant final approval to a nationwide class action settlement that indisputably would moot this case.”
Epic Games is represented by Faegre Drinker Biddle & Reath LLP. The plaintiffs are represented by One LLP and Bay Advocacy PLLC.
