Fortnite game user contract likely unenforceable, US judge says

SAN FRANCISCO -- The user contract employed by the massively popular online multiplayer video game Fortnite is likely not enforceable against minors given Epic Games Inc. has "done nothing in the clickwrap agreement to get the parents to accept it," an Oakland federal judge said Tuesday.

While the minors may have improperly consented to play the game, U.S. District Judge Yvonne Gonzalez Rogers was skeptical she could force the parties into arbitration.

Rogers did not issue a ruling on the matter, however, and took it under submission.

Fortnite is free to download on several gaming platforms. Players can purchase virtual currency to buy items within the game such as supplies, ammunition and costumes.

The proposed class action concerns accusations Epic Games targets Fortnite at children to induce illegal and mostly nonrefundable in-app purchases, according to plaintiffs' attorneys who represent minors seeking a refund.

Minors have to obtain parental consent in the end user license agreement to play the game. Rogers remained unconvinced she could enforce an arbitration provision in the contract because legal guardians likely did not sign it.

Epic Systems attorney Jeffrey S. Jacobson said the users, even if they are minors, are bound by the agreement because they "lied and accepted for their parents."

Rogers responded that the company should have expected the situation given most of the players are minors.

"It's not an issue of lying, which suggests intent," she said. "It's an issue of failing to have a protocol in place to get parental consent."

"No protocol would be sufficient then," Jacobson continued. If the contract is void because the users improperly agreed, then plaintiffs have no standing to file suit, he added.

"How can I enforce an agreement with a party that is explicitly denied the ability to contract by [the company's] own terms?" Rogers said.

There are roughly 200 million Fornite players worldwide. The company made an estimated $2.4 billion dollars on the game in 2018.

Plaintiff Johnny Doe said he was compelled to buy virtual currency "in the heat of the moment." Epic Games allows refunds for a total of three items "throughout the lifetime of the user and only from those purchases made from the last 30 days." Doe v. Epic Games, Inc., 19-CV03629 (N.D. Cal., filed June 21, 2019).

Also at issue was whether Doe actually voided the contract to play Fortnite. John Lord, representing the class, argued the complaint itself is an assertion of disaffirmance.

Rogers took issue, explaining plaintiffs' attorneys "seem to be cherry-picking what you want to disaffirm" given Doe continues to play the game.

"You can't disaffirm the contract and keep using our services," Jacobson said, adding plaintiffs chose to file suit instead of simply asking for a refund.

Asked whether this is true, Lord responded he is unsure whether Doe still plays Fortnite.

A frustrated Rogers said it is "not acceptable you want to stick your head in the sand." She continued that the answer may "say something" as to whether Doe is an appropriate class representative.

"You're their lawyer. Figure it out," she said.

Epic Games has seen its share of legal troubles as it continues to fight similar allegations that it employs a "predatory scheme" by enticing minors to purchase virtual containers of in-game items that are randomized in value. The lawsuits accuse the company of misrepresenting the chances of getting valuable items.

Federal Trade Commission chairman Joseph Simons promised to investigate the practice, after which Epic Games altered how it represented what is in the in-game containers.

The company has also been sued by several celebrities over allegedly copying their trademark dances.