Case 3:21-cv-00976-CRB Document 16 Filed 02/22/21 Page 1 of 5
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`MATTHEW J. ADLER (SBN 273147)
`Matthew.Adler@dbr.com
`FAEGRE DRINKER BIDDLE & REATH LLP
`Four Embarcadero Center, 27th Floor
`San Francisco, California 94111-4180
`Telephone:
`415-591-7500
`Facsimile:
`415-591-7510
`JEFFREY S. JACOBSON (pro hac vice)
`Jeffrey.Jacobson@dbr.com
`FAEGRE DRINKER BIDDLE & REATH LLP
`1177 Avenue of the Americas, 41st Floor
`New York, New York 10036-2714
`Telephone:
`212-248-3140
`Facsimile:
`212-248-3141
`Attorneys for Defendant
`EPIC GAMES, INC.
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`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`K.W., a minor and through K.W.’s guardian,
`Jillian Williams, and JILLIAN WILLIAMS,
`individually, on behalf of themselves and all
`others similarly situated,
`Plaintiffs,
`
`v.
`EPIC GAMES, INC.,
`Defendant.
`
`Case No. 3:21-cv-00976-CRB
`EPIC GAMES, INC.’S OPPOSITION
`TO L.R. 3-12 ADMINISTRATIVE
`MOTION TO RELATE CASES
`Action Filed:
`February 8, 2021
`Trial Date:
`None set
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`FAEGRE DRINKER BIDDLE
`& REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
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`MEMORANDUM IN RESPONSE TO MOTION TO
`RELATE CASES PURSUANT TO L.R. 3-12
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`CASE NO. 3:21-CV-00976-CRB
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`Case 3:21-cv-00976-CRB Document 16 Filed 02/22/21 Page 2 of 5
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`Defendant Epic Games, Inc. (“Epic Games”) respectfully opposes this attempt by Plaintiffs
`K.W. and Jillian Williams to relate their case to the dismissed matter of White v. Epic Games, Inc.,
`No. 4:19-cv-3629-YGR (N.D. Cal.), for two reasons, in addition to the fact that Plaintiffs filed this
`motion in the wrong matter and without satisfying the relevant procedural rules.1 First, Epic Games
`opposes this motion because all of the claims K.W. and Ms. Williams allege will be resolved by a
`class action settlement that received preliminary approval today in another action—a settlement
`joined in and supported by the attorneys who had been lead counsel in White—and the case should
`be stayed in the interim. This K.W. case was filed by former counsel in White, after they learned
`of the impending settlement, and after they had served an “attorneys’ lien” for fees allegedly owing
`related to the White case. Second, Epic Games opposes this motion because, in the unlikely event
`this K.W. case is not extinguished by the class settlement, it shares few facts in common with White,
`so few (if any) efficiencies would result from judicial reassignment.
`The claims in this K.W. case would be extinguished by a class action settlement that
`received preliminary approval today and the K.W. case should be stayed while those
`settlement proceedings unfold. Regardless of which jurist presides over this new lawsuit, it
`should be stayed and may quickly be resolved by a nationwide class action settlement in another
`matter. Earlier today, Epic Games and the plaintiffs in Zanca, et al. v. Epic Games, Inc., No. 21-
`CVS-534 (N.C. Super. Ct., Wake County), orally received preliminary approval for a nationwide
`class action settlement agreement that encompasses all of the claims K.W. and Ms. Williams assert
`in this matter. (The hearing occurred remotely because of COVID-19 protocols; the judge advised
`the parties of the content of the formal order and said it would be signed and entered on Thursday,
`February 25, upon the judge’s return to the courthouse.) Wake County is where Epic Games is
`headquartered and the venue where the Fortnite End User License Agreement (“EULA”) requires
`non-arbitrable disputes between Fortnite players and Epic Games to be heard. The settlement,
`which the Zanca parties negotiated with the assistance of a highly experienced JAMS mediator—
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`1 Pursuant to Local Rule 3-12(b), Plaintiffs should have filed this motion in White v. Epic Games,
`“the lowest-numbered case.” The motion can be rejected for that reason alone. Plaintiffs’ motion
`also failed to comply with Local Rule 7-11(a). It included neither a proposed order nor a declaration
`explaining why they could not obtain the stipulation required by Local Rule 7-12.
`MEMORANDUM IN RESPONSE TO MOTION TO
`-1-
`CASE NO. 3:21-CV-00976-CRB
`RELATE CASES PURSUANT TO L.R. 3-12
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`FAEGRE DRINKER BIDDLE
`& REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
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`

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`Case 3:21-cv-00976-CRB Document 16 Filed 02/22/21 Page 3 of 5
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`FAEGRE DRINKER BIDDLE
`& REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
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`the Hon. Wayne Andersen, former U.S. District Judge for the Northern District of Illinois—
`includes all those who purchased Fortnite in-game virtual currency and other items. It expressly
`addresses, and provides substantial benefits for, minors who purchased those items with their own
`money and claim a right of contractual disaffirmation. The putative settlement class thus includes
`Plaintiffs and all those they seek to represent, and provides relief for the exact claims they assert.
`This new K.W. case is a blatant and knowing attempt to interfere with the Zanca settlement.
`Class Counsel in Zanca include Deepali Brahmbhatt, who had been lead counsel in White v. Epic
`Games (the assertedly “related” case) before dismissing White upon signing the Zanca class
`settlement agreement. Ms. Brahmbhatt formerly had been a partner in the firm of OneLLP, which
`on January 6 served an attorneys’ lien for fees related to White. OneLLP filed this case after they
`became aware that the parties in Zanca, including Ms. Brahmbhatt, filed a notice in the North
`Carolina court on January 25 of their upcoming motion for approval of a class settlement. The
`precipitous filing of this new K.W. suit, therefore, may be nothing more than an attempt to gain
`leverage in a fee dispute among plaintiffs’ counsel. The Court should not allow its resources to be
`misused for such purposes.
`Regardless of the motivation behind the filing of this new K.W. case, Epic Games will be
`moving the Court to stay this K.W. case while the settlement process in North Carolina unfolds.
`Epic Games has prepared that motion and will file it immediately upon receipt of the Zanca court’s
`formal preliminary approval order. If the K.W. plaintiffs do not agree with the terms of the Zanca
`settlement, they have the same options as all other class members: They may opt out of the
`settlement class or object to the proposed settlement. If they do neither, or if their objections are
`overruled, their claims will be extinguished by the Zanca settlement. The case should be stayed in
`the interim.
`In the unlikely event this K.W. case is not extinguished by the Zanca settlement and
`must be litigated, it shares little in common with White and should not be reassigned to the
`White court. Neither Local Rule 3-12(a) factor to relate the case to White v. Epic Games is satisfied
`here. Although the defendant is the same, the plaintiffs are not. The same “transactions” are not
`at issue, either.
`MEMORANDUM IN RESPONSE TO MOTION TO
`RELATE CASES PURSUANT TO L.R. 3-12
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`CASE NO. 3:21-CV-00976-CRB
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`- 2 -
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`Case 3:21-cv-00976-CRB Document 16 Filed 02/22/21 Page 4 of 5
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`The two cases share only one fact in common: Like the minor plaintiff in White, minor
`Plaintiff K.W. seeks a declaration that Cal. Family Code § 6710 allows him to disaffirm purchases
`he claims to have made from Epic Games while playing Fortnite. The facts underlying K.W.’s
`claim, however, will be very different from those that had been at issue in White. Epic Games
`significantly changed its in-game purchasing practices after the White court partially denied Epic
`Games’ motion to dismiss that case, opining that minor plaintiff in White could proceed with his
`claim under Family Code § 6710. For the past year, Epic Games has (1) prohibited minors from
`entering credit card information in connection with payments, (2) required parents/guardians to
`enter their own payment information, and (3) required parents/ guardians to affirmatively accept
`the Fortnite EULA when entering payment information and authorizing in-game transactions.
`These new practices were not at issue in White, but they were in effect when K.W. made his alleged
`purchases. These changes are a primary reason why Epic Games agreed to a settlement in Zanca,
`to put to rest disputes over a past practice that cannot and will not arise in the future.
`If this K.W. case is not extinguished by the Zanca settlement, a likely first step will be a
`motion or motions to compel arbitration and/or to transfer the case to North Carolina, both as
`required by the Fortnite EULA. Unlike White, this case features an adult plaintiff (Ms. Williams)
`suing in her own capacity despite having bound herself to the Fortnite EULA and its arbitration
`and venue requirements even if the minor plaintiff convinces the Court that he is not. The basis for
`the White court’s decision not to compel arbitration of the claims in White (i.e., the minor’s
`purported ability to disaffirm his acceptance of it) would not apply to Ms. Williams. For this and
`other reasons, whether some or all of K.W.’s and Ms. Williams’ claims should be compelled into
`arbitration, or transferred, will turn on facts unique to the Plaintiffs, including the circumstances of
`Plaintiffs’ purchases and how Plaintiffs navigated Epic Games’ new procedures. Plaintiffs are free
`to argue that the decisions made in White should inform the outcome, just as they could make that
`argument about any non-controlling precedent. The Court, however, will have to consider the
`specific circumstances of these Plaintiffs’ transactions in ruling on arbitration and transfer.
`For the same reasons, the decisions in White would have limited relevance to any Rule
`12(b)(6) motion to dismiss K.W.’s and Ms. Williams’ Complaint for failure to state a claim upon
`MEMORANDUM IN RESPONSE TO MOTION TO
`- 3 -
`RELATE CASES PURSUANT TO L.R. 3-12
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`CASE NO. 3:21-CV-00976-CRB
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`FAEGRE DRINKER BIDDLE
`& REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
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`

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`Case 3:21-cv-00976-CRB Document 16 Filed 02/22/21 Page 5 of 5
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`which relief may be granted. Should such a motion be necessary, the Court’s consideration of
`whether K.W. may disaffirm his alleged purchases, made at a different time and following different
`procedures than those at issue in White, will have to address those different facts. Whether or not
`the decisions in White may be citable as persuasive authority, it is not true that an “unduly
`burdensome duplication of labor” necessarily would result from a different jurist presiding over
`K.W., as Local Rule 3-12(a) contemplates. Any “conflicting result” would stem from the entirely
`proper reason that the facts and parties are not the same as those in White.
`Other than the request for declaratory relief regarding purported disaffirmation rights
`(which, as noted above, will turn on facts different from those at issue in K.W.), the White v. Epic
`Games complaint and the instant complaint are not comparable. Attached as Exhibit A to the
`accompanying Declaration of Jeffrey S. Jacobson is a redline comparison of the two complaints.
`Exhibit A makes clear that virtually nothing about the two complaints is identical or even similar.
`Presumably, K.W. and Ms. Williams elected to plead their claims differently because the White
`court dismissed the bulk of the claims alleged in the White complaint. Accordingly, should Epic
`Games have to file a Rule 12(b)(6) motion in the instant case, the Court will have to consider the
`new facts and legal claims pleaded in the instant complaint on their own merits. Again, although
`each side will be free to argue that the prior decisions in White—like any non-controlling
`precedent—should inform the outcome of a dismissal motion in this case—the Court will have to
`decide these new claims on their own unique merits.
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`CONCLUSION
`For these reasons, Epic Games respectfully submits that White and the instant case should
`not be considered related pursuant to Local Rule 3-12.
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`Dated: February 22, 2021
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`MEMORANDUM IN RESPONSE TO MOTION TO
`RELATE CASES PURSUANT TO L.R. 3-12
`
`
`FAEGRE DRINKER BIDDLE & REATH LLP
`
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`By: /s/ Jeffrey S. Jacobson
`Jeffrey S. Jacobson (pro hac vice)
`Matthew J. Adler
`Attorneys for Defendant
`EPIC GAMES, INC.
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`CASE NO. 3:21-CV-00976-CRB
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`FAEGRE DRINKER BIDDLE
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`ATTORNEYS AT LAW
`SAN FRANCISCO
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