Case 3:21-cv-00976-CRB Document 23 Filed 03/15/21 Page 1 of 25
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`MATTHEW J. ADLER (SBN 273147)
`Matthew.Adler@faegredrinker.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@faegredrinker.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.
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`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.
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`
`
`Case No. 3:21-cv-00976-CRB
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`DEFENDANT EPIC GAMES, INC.’S
`NOTICE OF MOTION AND
`MOTION TO (1) DISMISS FOR
`LACK OF STANDING PURSUANT
`TO F.R.C.P. 12(B)(1) OR, IN THE
`ALTERNATIVE, (2) COMPEL
`INDIVIDUAL ARBITRATION;
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT
`
`April 23, 2021
`10:00 a.m.
`6 – 17th Floor
`Hon. Charles R. Breyer
`
`Date:
`Time:
`Ctrm:
`Judge:
`
`Action Filed: February 8, 2021
`Trial Date:
`None set
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`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`MOTION TO DISMISS OR COMPEL ARBITRATION
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`CASE NO. 3:21-CV-00976-CRB
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`Case 3:21-cv-00976-CRB Document 23 Filed 03/15/21 Page 2 of 25
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`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`NOTICE OF MOTION AND MOTION – SUMMARY OF ARGUMENT
`TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that on April 23, 2021 at 10:00 a.m., or as soon thereafter as the
`matter may be heard, in Courtroom 6, 17th Floor of the above Court, located at 450 Golden Gate
`Avenue, San Francisco, California, 94102, Defendant Epic Games, Inc. (“Epic Games”) will and
`hereby does move for an order: (1) dismissing Plaintiffs’ claims for lack of standing pursuant to
`Federal Rule of Civil Procedure 12(b)(1); or, in the alternative, (2) compelling arbitration of
`Plaintiffs’ claims.
`Motion to Dismiss For Lack of Standing. Plaintiff K.W. claims to have established an
`account with Epic Games to play Fortnite, a highly popular video game published by Epic Games.
`Contrary to the allegations in Plaintiffs’ Complaint, neither K.W. nor his mother, Plaintiff Jillian
`Williams, ever had any transactions with Epic Games. Within Plaintiffs’ Fortnite player account,
`two purchases were made from Epic Games, one on March 29, 2020 (for $9.99), and one on July
`19, 2020 (for $9.89). The method of payment used for these transactions belonged to a third party,
`not to K.W. or Jillian Williams. Plaintiffs, therefore, do not have standing to sue regarding these
`transactions. Further, notwithstanding these facts, Epic Games immediately honored Plaintiffs’
`request to “disaffirm” these transactions and refunded all monies spent within K.W.’s account. This
`action by Epic Games mooted Plaintiffs’ claims, and they should be dismissed under Rule 12(b)(1).
`Motion to Compel Arbitration. All persons who open a Fortnite account must
`affirmatively agree to the Fortnite End User License Agreement (“EULA”). The EULA’s first
`page advises all persons seeking to open a Fortnite account that (1) “[t]his agreement contains a
`binding, individual arbitration and class-action waiver provision,” and (2) “[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.” By creating
`a Fortnite account, either minor Plaintiff K.W. misrepresented his age to Epic Games, or else
`Plaintiff Jillian Williams, K.W.’s mother, agreed to the EULA on K.W.’s behalf. Purchases,
`moreover, must be made by adults who must agree to the EULA when they enter payment
`information. Plaintiffs, therefore, must arbitrate their claims as required by the EULA.
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`MOTION TO DISMISS OR COMPEL ARBITRATION
`
`
`CASE NO. 3:21-CV-00976-CRB
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`- 2 -
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`Case 3:21-cv-00976-CRB Document 23 Filed 03/15/21 Page 3 of 25
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`These Motions are based on this Notice of Motion and Motion, the Memorandum of Points
`and Authorities in support, the Declarations of Jeffrey S. Jacobson and John Farnsworth, and
`exhibits thereto, as well as all papers and pleadings on file herein, and such argument as properly
`may be presented at a hearing.
`
`
`Dated: March 15, 2021
`
`
`FAEGRE DRINKER BIDDLE & REATH LLP
`
`
`By: /s/ Jeffrey S. Jacobson
`Jeffrey S. Jacobson (pro hac vice)
`Matthew J. Adler
`
`Attorneys for Defendant
`EPIC GAMES, INC.
`
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`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`MOTION TO DISMISS OR COMPEL ARBITRATION
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`CASE NO. 3:21-CV-00976-CRB
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`Case 3:21-cv-00976-CRB Document 23 Filed 03/15/21 Page 4 of 25
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION........................................................................................................................... 1
`FACTUAL AND PROCEDURAL BACKGROUND .................................................................... 3
`ARGUMENT .................................................................................................................................. 9
`I.
`The Court Should Dismiss This Action for Lack of Subject-Matter
`Jurisdiction. ............................................................................................................. 9
`A.
`Epic Games’ Acceptance of K.W.’s Disaffirmation Renders the
`Case Moot. .................................................................................................. 9
`Plaintiffs Made No Purchases from Epic Games and Therefore
`Lack Standing............................................................................................ 12
`Alternatively, the Court Should Compel Arbitration. ........................................... 13
`A.
`K.W.’s Account’s Acceptance of the EULA is Binding. .......................... 13
`B.
`This Dispute Falls Squarely Within the Scope of the Agreement. ........... 17
`CONCLUSION ............................................................................................................................. 18
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`
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`B.
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`II.
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`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`MOTION TO DISMISS OR COMPEL ARBITRATION
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`- i -
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`Case 3:21-cv-00976-CRB Document 23 Filed 03/15/21 Page 5 of 25
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`
`
`TABLE OF AUTHORITIES
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`Page(s)
`
`
`CASES
`Am Express Co. v. Italian Colors Rest.,
`133 S. Ct. 2304 (2013) ..............................................................................................................13
`AT&T Mobility LLC v. Concepcion,
`563 U.S. 333 (2010) ............................................................................................................13, 14
`Bishop Paiute Tribe v. Inyo Cty.,
`863 F.3d 1144 (9th Cir. 2017) .....................................................................................................9
`Burnand v. Irigoyen,
`30 Cal.2d 861 (1947).................................................................................................................10
`Campbell-Ewald Co. v. Gomez,
`136 S. Ct. 663 (2016) ................................................................................................................11
`City of Erie v. Pap’s A.M.,
`529 U.S. 277 (2000) ....................................................................................................................9
`Daugherty v. Experian Info. Solutions, Inc.,
`847 F. Supp. 2d 1189 (N.D. Cal. 2012) ....................................................................................14
`Dean Witter Reynolds, Inc. v. Byrd,
`470 U.S. 213 (1985) ..................................................................................................................14
`Deck v. Spartz, Inc.,
`No. 2:11-cv-1123-JAM-DAD, 2011 WL 7775067 (E.D. Cal. Sept. 27, 2011) ........................10
`E.K.D. ex rel. Dawes v. Facebook, Inc.,
`885 F. Supp. 2d 894 (S.D. Ill. 2012) .........................................................................................16
`Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
`528 U.S. 167 (2002) ..................................................................................................................13
`Gillis v. Whitley’s Disc. Auto Sales, Inc.,
`319 S.E.2d 661 (N.C. App. 1984) .............................................................................................10
`Graf v. Match.com, LLC, No. CV 15-3911 PA,
`2015 WL 4263957 (C.D. Cal. July 10, 2015) ...........................................................................16
`Hastings v. Dollarhide,
`24 Cal. 195 (1864).....................................................................................................................10
`Heidbreder v. Epic Games, Inc.,
`438 F. Supp.3d 591 (E.D.N.C. 2020) ............................................................................14, 15, 16
`I.B. ex rel. Fife v. Facebook, Inc.,
`905 F. Supp.2d 989 (N.D. Cal. 2012) .......................................................................................10
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`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
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`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`MOTION TO DISMISS OR COMPEL ARBITRATION
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`- ii -
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`Case 3:21-cv-00976-CRB Document 23 Filed 03/15/21 Page 6 of 25
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`Johnmohammadi v. Bloomingdale’s, Inc.,
`755 F.3d 1072 (9th Cir. 2014) ...................................................................................................17
`Koller v. Harris,
`312 F. Supp. 3d 814 (N.D. Cal. 2018) ........................................................................................9
`Larsen v. Trader Joe’s Co.,
`No. C 11-05188 SI, 2012 WL 5458396 (N.D. Cal. June 14, 2012) ..........................................13
`In re Lithium Ion Batteries Antitrust Litig.,
`13-MD-2420-YGR, 2015 WL 8293728 (N.D. Cal. Dec. 9, 2015) ...........................................17
`Lujan v. Defenders of Wildlife,
`504 U.S. 555 (1992) ..................................................................................................................12
`MacGreal v. Taylor,
`167 U.S. 688 (1897) ..................................................................................................................10
`Macias v. Excel Bldg. Servs., LLC,
`767 F. Supp. 2d 1002 (N.D. Cal. 2011) ....................................................................................14
`McKee v. Audible, Inc.,
`No. CV 17-1941-GW (Ex), 2017 WL 4685039 (C.D. Cal. July 17, 2017) ..............................14
`Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp.,
`460 U.S. 1 (1983) ................................................................................................................13, 17
`Nguyen v. Barnes & Noble, Inc.,
`763 F.3d 1171 (9th Cir. 2014) ...................................................................................................14
`R.A. v. Epic Games, Inc.,
`No. 5:19-cv-325-BO, 2020 WL 865420 (E.D.N.C. Feb. 20, 2020) ................................9, 10, 12
`Salmon Spawning & Recovery Alliance v. Gutierrez,
`545 F.3d 1220 (9th Cir. 2008) ...................................................................................................12
`Scollan v. Gov’t Employees Ins. Co.,
`222 Cal. App.2d 181 (1963) ......................................................................................................10
`Shearson/Am. Express, Inc. v. McMahon,
`482 U.S. 220 (1987) ..................................................................................................................13
`Spokeo, Inc. v. Robins,
`136 S. Ct. 1540 (2016) ..............................................................................................................12
`T.K. v. Adobe Sys., Inc.,
`No. 17-CV-4595-LHK, 2018 WL 1812200 (N.D. Cal. Apr. 17, 2018) ....................................10
`Timothy Dupler v. Orbitz, LLC,
`No. CV182303RGKGSJX, 2018 WL 6038309 (C.D. Cal. July 5, 2018) .................................14
`Westinghouse Hanford Co. v. Hanford Atomic Metal Trades Council,
`940 F.2d 513 (9th Cir. 1991) .....................................................................................................17
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`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S MOTIONS TO COMPEL
`ARBITRATION AND TO DISMISS
`
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`- iii -
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`CASE NO. 3:21-CV-00976-CRB
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`

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`Case 3:21-cv-00976-CRB Document 23 Filed 03/15/21 Page 7 of 25
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`
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`White v. Epic Games, Inc.,
`435 F. Supp.3d 1024 (N.D. Cal. 2020) .....................................................................4, 10, 11, 16
`Zanca v. Epic Games, Inc.,
`No. 21-CVS-534 (N.C. Super. Ct., Wake County) ...........................................................1, 2, 12
`STATUTES, RULES & REGULATIONS
`9 U.S.C. § 4 ...............................................................................................................................13, 14
`28 U.S.C. § 1391 .............................................................................................................................16
`Cal. Family Code § 6710 ....................................................................................................1, 2, 4, 11
`Fed. R. Civ. P. 10(a) ..........................................................................................................................4
`Fed. R. Civ. P. 12(b)(1) ...............................................................................................................9, 13
`Fed. R. Civ. P. 68 ............................................................................................................................11
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`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S MOTIONS TO COMPEL
`ARBITRATION AND TO DISMISS
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`Case 3:21-cv-00976-CRB Document 23 Filed 03/15/21 Page 8 of 25
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`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`This Court has before it a fully-briefed motion to stay this case while the court in Zanca v.
`Epic Games, Inc., No. 21-CVS-534 (N.C. Super. Ct., Wake County), considers whether to grant
`final approval to a nationwide class action settlement that indisputably would moot this case. The
`Court should grant that motion. Separate from the Zanca settlement’s potential to moot Plaintiffs’
`claims, however, they are moot already for different reasons. Plaintiff K.W., a minor, seeks a
`declaratory judgment that California Family Code § 6710 allows him to “disaffirm” transactions
`he claims to have made with his “own money” while playing Fortnite, a highly popular video game
`published by Epic Games. K.W. provided no pre-suit notice to Epic Games of his disaffirmation—
`or, indeed, of any dissatisfaction at all with his purchases. But as soon as K.W. provided Epic
`Games with his full name and Fortnite account information, Epic Games acknowledged K.W.’s
`disaffirmation and refunded all monies spent on in-game purchases in K.W.’s Fortnite account.
`The Court, therefore, can grant K.W. no more relief than Epic Games already has provided him.
`As another court held in an analogous circumstance when Epic Games honored a minor plaintiff’s
`request to disaffirm purchases pursuant to the Family Code, Epic Games’ provision of the requested
`refund nullified the transactions at issue and mooted the plaintiff’s claims.
`Plaintiffs also never had standing to sue in the first place. Although Plaintiffs’ Complaint
`(at ¶¶ 44-45, 48-49) alleges that K.W. made some purchases from Epic Games using his “own
`money” and made other purchases using the credit of his mother and co-plaintiff Jillian Williams,
`assertedly without Ms. Williams’ permission, these allegations are demonstrably false. Epic
`Games’ records show two transactions with the company from K.W.’s Fortnite account, both of
`which used credit cards belonging to a non-party, not to Ms. Williams. K.W. had no “own money”
`transactions with Epic Games; indeed, neither he nor Ms. Williams had any transactions with Epic
`Games at all. This lack of standing provides a separate basis for dismissal, but regardless of who
`made the purchases in K.W.’s account, and regardless of the source of the funds for those
`transactions, Epic Games has provided Plaintiffs with a full refund. If they ever had standing, and
`they apparently did not, they possess standing no longer.
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`MOTION TO DISMISS OR COMPEL ARBITRATION
`
`
`CASE NO. 3:21-CV-00976-CRB
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`Case 3:21-cv-00976-CRB Document 23 Filed 03/15/21 Page 9 of 25
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`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`The undisguised purpose of this case is to attack the Zanca settlement collaterally and thus
`advantage Plaintiffs’ counsel in a fee dispute with Zanca counsel. Indeed, those counsel rushed to
`court so quickly after learning of the Zanca settlement that they apparently lacked time to find
`plaintiffs who actually purchased something from Epic Games. Although the case had an improper
`genesis, however, Epic Games mooted it through a proper means.
`Epic Games’ acceptance of K.W.’s disaffirmation was not a “pick off” of a proposed class
`plaintiff, for four reasons. First, Plaintiffs should have, but did not, provide Epic Games with pre-
`suit notice and an opportunity to respond to their invocation of Family Code § 6710. Epic Games
`should have had the right to honor K.W.’s disaffirmation before it ever became the subject of a
`lawsuit. Second, contractual disaffirmation is an inherently personal right that one person cannot
`invoke on behalf of another or as a class representative. Whether or not someone else can or should
`walk away from their ability to play Epic Games’ games is not an appropriate subject for a class
`action. Third, before K.W. filed this case, Epic Games had changed its policies to require adults to
`enter payment information for purchases from the company. This separately moots any request for
`prospective injunctive relief. Fourth, also before K.W. filed this case, Epic Games had agreed in
`the Zanca settlement to allow any minors who previously transacted with the company to disaffirm
`their purchases and obtain benefits from a settlement fund. By virtue of having obtained full relief
`on his personal claim, however, K.W. no longer has standing to participate in the settlement.
`If, for some reason, the Court does not stay Plaintiffs’ claims or dismiss them for lack of
`standing, the Court should compel Plaintiffs to arbitrate whatever claims they still possess. One
`cannot play Fortnite without agreeing to the Fortnite End User License Agreement (“EULA”). The
`EULA states prominently on its first page that only an adult may accept it, precluding minor
`disaffirmation. Then, whenever someone seeks to make an in-game purchase from Epic Games,
`such as the purchases allegedly at issue in this case, Epic Games’ system requires an adult to enter
`the credit card number or other payment information, to confirm that he or she is an adult and the
`authorized cardholder, and to accept the EULA in connection with the purchase. The EULA is a
`standard “clickwrap” agreement that requires arbitration of disputes on an individual basis. It
`applies here and precludes K.W.’s and Ms. Williams’ attempt to litigate their claims.
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`MOTION TO DISMISS OR COMPEL ARBITRATION
`
`
`CASE NO. 3:21-CV-00976-CRB
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`FACTUAL AND PROCEDURAL BACKGROUND
`The Free-to-Play Fortnite Game and Its Optional In-Game Purchases
`Epic Games’ Fortnite, launched in late 2017, quickly became one of the most successful
`video games of all time with hundreds of millions of players around the world. See Complaint
`(“Compl,” Dkt. No. 1) ¶¶ 10, 15. In “Battle Royale” mode, Fortnite is “free-to-play,” but offers
`items for sale within the game “such as ‘skins’ (uniforms), ‘gliders’ (parachutes), ‘emotes’ (dance
`moves), materials, ammunition, and other things.” Id. ¶ 12. Players also may purchase items such
`as a “Battle Pass,” which offers extra game content and other “in-game extras.” Id. Players make
`these in-game acquisitions using the Fortnite in-game virtual currency, known as “V-Bucks.” Id.
`¶ 13. Players can earn V-Bucks through game play or, if they wish to acquire more in-game items
`than their earned V-Bucks account allows, players may purchase V-Bucks from Epic Games or
`from third parties (i.e., Sony or Microsoft) whose platforms can be used to play Fortnite. See id.
`¶¶ 10, 13, 19. The smallest quantity of V-Bucks a player may purchase is 1,000 V-Bucks, currently
`priced at $7.99. See id. ¶ 22. A Fortnite player need not purchase or use V-Bucks; players can
`play the game without making any in-game purchases. Plaintiffs do not allege otherwise.
`As Plaintiffs’ Complaint acknowledges, players can make one-time purchases of V-Bucks
`without storing a method of payment usable for future purchases. See Compl. ¶ 24. Players can,
`but need not, store a method of payment for future purchases from Epic Games. See id. Plaintiffs
`claim (correctly) that some platforms on which Fortnite can be played, such as Sony’s PlayStation
`or Microsoft’s Xbox, also allow storage of payment methods for transactions with those platforms.
`See id. ¶ 29. The disclosures associated with doing so, however, are in the control of the companies
`that write them. As for Epic Games’ disclosures, Plaintiffs’ allegations are demonstrably false in
`claiming that “Epic Games does not have any parental control or notification system,” and that Epic
`Games “does not provide players with a history of their purchases of items or game content in
`Fortnite” when players transact directly with Epic Games (id. ¶¶ 27-30, 37).
`Plaintiffs correctly note that Epic Games describes purchases of V-Bucks and Battle Passes
`as “nonrefundable” (Compl. ¶¶ 32, 40), but describing an item as nonrefundable says nothing about
`a minor’s right to disaffirm a contract. The Fortnite EULA, which all players must affirmatively
`
`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`MOTION TO DISMISS OR COMPEL ARBITRATION
`
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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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`accept in order to be able to play Fortnite, states that “[a]ll purchases of Purchased Game Currency
`and Content are final and not refundable, transferable, or exchangeable under any circumstances,
`except as otherwise required by applicable law.” Declaration of John Farnsworth (“Farnsworth
`Decl.”), Ex. A at ¶ 4 (emphasis added). The EULA thus does not prohibit players from invoking
`any legal entitlement to a refund. As for purchases of other items, which Epic Games does not
`describe as “nonrefundable,” Epic Games allows all players, regardless of age, to reverse up to
`three such transactions during the lifetime of an account, each within 30 days of the exchange. See
`Compl. ¶ 33. When players exercise this option, Epic Games removes the acquired item from the
`player’s account and redeposits the V-Bucks used to acquire the item. See id. The existence of this
`system does not prevent players from seeking refunds for other purchases as “otherwise required
`by applicable law,” as set forth in the EULA.
`Plaintiffs’ “Disaffirmation” Claims Pursuant to Family Code § 6710
`Plaintiffs contend that Family Code § 6710, which provides that “a contract of a minor may
`be disaffirmed by the minor,” allows minor players of Fortnite to obtain refunds for in-game
`purchases they made with their “own money.” In [White] v. Epic Games, Inc., 435 F. Supp.3d 1024
`(N.D. Cal. 2020),1 the court addressed a different minor’s disaffirmation claim and held that, under
`the circumstances of that case, the minor could pursue a claim for declaratory judgment regarding
`the application of Family Code § 6710 to his claims. See id. at 1044-45. After that ruling, however,
`Epic Games changed its purchasing policies to preclude minors from entering payment account
`information into Epic Games’ payment system. See Farnsworth Decl. ¶ 9. Since that change, which
`has been in place for the past year, minors have not been able to transact with Epic Games except
`as explicitly authorized by an adult credit card/debit card holder. One purpose of this change was
`to address the disaffirmation issue. See id. ¶¶ 9-10.
`Once Epic Games made this change, if an account already had a payment method stored for
`future use, Epic Games required an adult to reenter some of the payment account information—the
`credit card’s CVV number and the city, state, and ZIP code of the billing address—and to confirm
`
`1 In that initial decision, the case was captioned “Doe v. Epic Games” because the plaintiffs sued
`anonymously. The Court required the plaintiffs to comply with Fed. R. Civ. P. 10(a), and after they
`did so, the case became White v. Epic Games.
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`MOTION TO DISMISS OR COMPEL ARBITRATION
`
`
`CASE NO. 3:21-CV-00976-CRB
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`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`that the person entering this information was an adult and authorized user of the payment method.
`See Farnsworth Decl. ¶ 9. This adult also must separately agree to the Fortnite EULA, including
`its dispute resolution terms. See id. ¶¶ 9-10. Specifically, before allowing purchases with or the
`storage of any payment method, Epic Games requires the purchaser to confirm that s/he—the
`person who entered the payment information—to “represent that I am over 18 and an authorized
`user of this payment method, and I agree to the End User License Agreement.” Id.
`Plaintiffs’ Fortnite Account, In-Game Purchase History, and Disaffirmation
`From the time of Fortnite’s launch in the summer of 2017, all users have had to
`affirmatively agree to the Fortnite EULA before they could begin playing the game in any mode
`or on any platform. See Farnsworth Decl. ¶ 2. Every version of the Fortnite EULA in effect from
`the time the game launched in the summer of 2017 through the present date called for disputes (or,
`once Epic Games added an arbitration requirement to the EULA, any non-arbitrable disputes) to be
`heard in North Carolina courts and for all disputes to be governed by North Carolina law. See id.
`¶ 3. When someone wishes to begin playing Fortnite, the EULA is displayed on-screen for the
`user. The EULA is a standard “clickwrap” agreement, which players must affirmatively accept by
`completing a two-step process First, the user must affirmatively accept the agreement by checking
`a box that reads, “I have read and agree with the End User License Agreement.” After clicking that
`box, the user must confirm a second time by clicking an “Accept” button before playing. Unless
`the user clicks the box that states, “I have read and agree with the End User License Agreement”
`and then clicks “Accept,” the user cannot access the Fortnite platform. See id. ¶¶ 4, 7-8. Epic
`Games periodically updates the Fortnite EULA, and whenever it does so, players must accept the
`new version in order to continue playing. See id. ¶ 5. If players do not wish to be bound to the
`amended EULA, they must stop playing Fortnite. See id.
`Epic Games’ records reflect that the account Plaintiffs identified as belonging to K.W. was
`created on January 24, 2018, using a Microsoft Xbox. See Farnsworth Decl. ¶ 12. If a user who
`creates a Fortnite account on a platform takes the further step of creating an Epic Games account,
`s/he can play Fortnite in his or her account using any of multiple platforms. See id. The person
`who created K.W.’s account took this subsequent step on April 28, 2018. See id.
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`MOTION TO DISMISS OR COMPEL ARBITRATION
`
`
`CASE NO. 3:21-CV-00976-CRB
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`Case 3:21-cv-00976-CRB Document 23 Filed 03/15/21 Page 13 of 25
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`K.W.’s Fortnite account was active from its inception through 2020 and into 2021. See
`Farnsworth Decl. ¶ 13. Amended versions of the EULA were accepted in the account on at least
`eight separate occasions during those years: March 16, 2019, June 27, 2019, July 30, 2019, October
`23, 2019, May 21, 2020, May 22, 2020, September 2, 2020, and September 25, 2020. See id.
`Plaintiffs’ Complaint alleges that K.W. himself created the account and accepted the EULA in
`January 2018. See Compl. ¶ 43. The Complaint does not say who accepted it on the other seven
`occasions. All versions of the EULA accepted in K.W.’s account (1) stated prominently, in all-
`capitalized text, that only an adult could accept it, and (2) also stated prominently, in bold, all-
`capitalized text, that the EULA contains a binding, individual arbitration requirement and a time-
`limited right to opt out of it. See Farnsworth Decl. ¶¶ 14-15. Neither K.W. nor Ms. Williams opted
`out of the arbitration requirement within the 30-day time limit to do so. See id. ¶ 24.
`Specifically, the EULA requires “Disputes” between Epic and players to “be settled by
`binding individual arbitration conducted by the Judicial Arbitration Mediation Services, Inc.
`(‘JAMS’) subject to the U.S. Federal Arbitration Act and federal arbitration law and according to
`the JAMS Streamlined Arbitration Rules and Procedures effective July 1, 2014 (the ‘JAMS Rules’)
`as modified by this agreement.” Farnsworth Decl. ¶ 16 & Ex. A § 12.3. The EULA defines
`“Disputes” broadly to include “any dispute, claim, or controversy…between You and Epic that
`relates to your use or attempted use of Epic’s products or services and Epic’s products and services
`generally, including without limitation the validity, enforceability, or scope of this Binding
`Individual Arbitration section.” Id. It further specifies that “You and Epic agree to arbitrate all
`Disputes regardless of whether the Dispute is based in contract, statute, regulation, ordinance, tort
`(including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or
`equitable theory.” Id. Under the EULA, “[W]hether a dispute is subject to arbitration under this
`Agreement will be determined by the arbitrator rather than a court.” Id. All of this is called out
`prominently at the top of the EULA, as follows:
`
`INDIVIDUAL
`THIS AGREEMENT CONTAINS A BINDING,
`ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU
`ACCEPT THIS AGREEMENT, YOU AND EPIC AGREE TO RESOLVE
`DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP
`THE RIGHT TO GO TO COURT INDIVIDUALLY O