Case 3:21-cv-00976-CRB Document 52 Filed 04/13/22 Page 1 of 8
`
`
`
`
`
`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.
`
`
`
`
`
`
`
`Case No. 3:21-cv-00976-CRB
`
`DEFENDANT EPIC GAMES, INC.’S
`NOTICE OF MOTION AND
`UNOPPOSED MOTION TO DISMISS
`ON GROUNDS OF MOOTNESS;
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT
`
`May 20, 2022
`10:00 a.m.
`6 – 17th Floor
`Hon. Charles R. Breyer
`
`Date:
`Time:
`Ctrm:
`Judge:
`
`Action Filed: February 8, 2021
`Trial Date:
`None set
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`UNOPPOSED MOTION TO DISMISS CASE AS MOOT
`
`
`
`
`CASE NO. 3:21-CV-00976-CRB
`
`

`

`Case 3:21-cv-00976-CRB Document 52 Filed 04/13/22 Page 2 of 8
`
`
`
`NOTICE OF MOTION AND MOTION – SUMMARY OF ARGUMENT
`TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that on May 20, 2022 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 without opposition for an order dismissing this case, with prejudice, as moot.
`Plaintiffs K.W. and Jillian Williams are members of the nationwide class of Fortnite players
`certified for settlement purposes in Zanca v. Epic Games, Inc., No. 21-CVS-534 (N.C. Super. Ct.).
`The trial court in Zanca granted final approval to that settlement on November 18, 2021. Plaintiffs
`and one other member of the Zanca class submitted a joint objection to the settlement and appealed
`from the trial court’s order approving the settlement. On April 8, 2022, however, the objectors
`withdrew their appeal. Accordingly, the Zanca settlement has become final. Because the release
`of claims provided for by the Zanca settlement agreement extends to all the claims Plaintiffs have
`pleaded or could plead in this case, the finality of the Zanca settlement has rendered this case moot.
`Epic Games therefore seeks dismissal of the case, and Plaintiffs’ counsel have authorized Epic
`Games to represent to the Court that the motion is unopposed.
`The instant Motion is based on this Notice of Motion and Motion, the Memorandum of
`Points and Authorities in support, the Declaration of Jeffrey S. Jacobson and exhibits thereto, as
`well as all papers and pleadings on file herein, and such argument as properly may be presented at
`a hearing (if necessary).
`
`
`Dated: April 13, 2022
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`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.
`
`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`UNOPPOSED MOTION TO DISMISS CASE AS MOOT
`
`
`- 2 -
`
`CASE NO. 3:21-CV-00976-CRB
`
`

`

`Case 3:21-cv-00976-CRB Document 52 Filed 04/13/22 Page 3 of 8
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ................................................................................................................... 1
`ARGUMENT .......................................................................................................................... 2
`CONCLUSION ....................................................................................................................... 4
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`UNOPPOSED MOTION TO DISMISS CASE AS MOOT
`
`
`- i -
`
`CASE NO. 3:21-CV-00976-CRB
`
`

`

`Case 3:21-cv-00976-CRB Document 52 Filed 04/13/22 Page 4 of 8
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`
`
`
`CASES
`
`Hesse v. Sprint Corp.,
`595 F.3d 581 (9th Cir. 2010) .............................................................................................. 3
`
`Kremer v. Chem. Const. Corp.,
`456 U.S. 461 (1982)........................................................................................................... 3
`
`Matsushita Elec. Indus. Co. v. Epstein,
`516 U.S. 367 (1996)........................................................................................................2, 3
`
`Ehrenhaus v. Baker,
`717 S.E.2d 9 (N.C. Ct. App. 2011) ..................................................................................... 3
`
`Zanca v. Epic Games, Inc.,
`No. 21-CVS-534 (N.C. Super. Ct., Wake County)........................................................ 1, 2, 3
`
`FEDERAL STATUTES
`
`28 U.S.C. § 1738 ..................................................................................................................... 2
`
`Full Faith and Credit Act ......................................................................................................2, 3
`
`STATE STATUTES
`
`California Family Code § 6710 ................................................................................................ 1
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`UNOPPOSED MOTION TO DISMISS CASE AS MOOT
`
`
`- ii -
`
`CASE NO. 3:21-CV-00976-CRB
`
`

`

`Case 3:21-cv-00976-CRB Document 52 Filed 04/13/22 Page 5 of 8
`
`
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`Plaintiff K.W., a minor, and his mother Jillian Williams, assert several claims in this case
`arising from K.W.’s having played Fortnite, a highly popular video game published by Epic Games,
`and having made in-game purchases while playing. Among other things, Plaintiffs assert that
`certain of Epic Games’ sales and marketing practices violated California consumer protection
`statutes and that K.W., as a minor, should be able to “disaffirm” his purchases pursuant to California
`Family Code § 6710 and therefore receive a full refund for those purchases. Plaintiffs filed this
`case in February 2021, but the Court stayed the case on April 19, 2021, while the court in a parallel
`matter, Zanca v. Epic Games, Inc., No. 21-CVS-534 (N.C. Super. Ct., Wake County) considered
`the fairness of an earlier-proposed nationwide class action settlement which, if approved, would
`moot Plaintiffs’ case. See Dkt. 36 at 1-2. The Court renewed that stay six times, most recently on
`February 2, 2022. See Dkt. 38, 40, 42, 45, 49, 51.
`The trial court in Zanca granted final approval to the settlement on November 18, 2021.
`See Dkt. 47-1 (final approval order). As the parties advised the Court on February 1, 2022 (Dkt.
`50), the lone group of objectors to the settlement—Plaintiffs and one other commonly-represented
`member of the Zanca settlement class—timely filed an appeal from that final approval order. The
`objectors/appellants, however, withdrew that appeal on April 8, 2022. See Declaration of Jeffrey
`S. Jacobson (“Jacobson Decl.”) ¶ 2 & Ex. A (notice of withdrawal). Now that the appeal has been
`dismissed by the only people who had standing to appeal, the Zanca settlement has become final.
`The Zanca settlement class is defined by the trial court’s final approval order to include
`“[a]ll persons in the United States who, at any time between July 1, 2015, and [February 25, 2021],
`had a Fortnite or Rocket League account that they used to play either game on any device and in
`any mode, and (a) exchanged in-game virtual currency for any in-game benefit, or (b) made a
`purchase of virtual currency or other in-game benefit for use within Fortnite or Rocket League.1
`See Dkt. 47-1 at 56. Plaintiffs are members of the Zanca settlement class. See Dkt. 1 (Complaint)
`¶¶ 43-44 (alleging that K.W. made in-game purchases while playing Fortnite in and after 2018).
`
`1 Rocket League is another popular video game published by Epic Games.
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`- 1 -
`CASE NO. 3:21-CV-00976-CRB
`UNOPPOSED MOTION TO DISMISS CASE AS MOOT
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`

`

`Case 3:21-cv-00976-CRB Document 52 Filed 04/13/22 Page 6 of 8
`
`
`
`The Zanca settlement’s Effective Date occurred one business day after “the date of final dismissal
`of any appeal.” Jacobson Decl. Ex. B (Settlement Agreement) at ¶ 1.11(iii). The settlement thus
`became effective on April 11, 2022.
`
`The definition of “Released Claims” in the Zanca Settlement Agreement includes “any and
`all claims or causes of action of every kind and description . . . and any allegations of wrongdoing
`. . . and any demands for legal, equitable, or administrative relief . . . that the Releasing Parties had
`or have (including assigned claims and ‘Unknown Claims’ as defined herein) that have or could
`have been asserted in the Action or in any other action or proceeding before any court, arbitrator,
`tribunal, or administrative body. . . .” The definition “specifically extends to any allegation that,
`during the Class Period, any of the Released Parties committed a breach of contract; violated any
`state’s consumer fraud or deceptive trade practice laws or any similar federal law; violated federal
`or any state’s gaming laws; or committed any other tort or common-law violation in connection
`with the purchase or sale of virtual currency or any other in-game item, benefit, or enhancement
`related to the play of Fortnite or Rocket League.” Jacobson Decl. Ex. B at ¶ 1.21.
`Epic Games contends, and Plaintiffs do not dispute, that all the claims asserted in this action
`are Released Claims as defined in the Zanca settlement. Because the Zanca settlement has become
`final, and because Plaintiffs are members of the Zanca settlement class, they are bound by the
`Settlement Agreement. Pursuant to that agreement, Plaintiffs “shall be deemed to have released,
`and by operation of the Final Judgement shall have . . . released . . . all Released Claims against
`[Epic Games].” Jacobson Decl. Ex. B at ¶ 3.1. Epic Games thus contends that this action should
`be dismissed, with prejudice, as moot. Plaintiffs have authorized Epic Games to communicate to
`the Court that they do not oppose this motion.
`
`ARGUMENT
`The Full Faith and Credit Act generally requires federal courts to afford the “judicial
`proceedings” of any State “the same full faith and credit . . . as they have by law or usage in the
`courts of such State” as determined by the rules of the State. 28 U.S.C. § 1738; see also Matsushita
`Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373 (1996). In assessing whether to afford a State judicial
`proceeding full faith and credit, the Court “must look to state law in determining the preclusive
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`UNOPPOSED MOTION TO DISMISS CASE AS MOOT
`
`
`CASE NO. 3:21-CV-00976-CRB
`
`- 2 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`

`

`Case 3:21-cv-00976-CRB Document 52 Filed 04/13/22 Page 7 of 8
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`effect of a state court judgment releasing such claims.” Hesse v. Sprint Corp., 595 F.3d 581, 587
`(9th Cir. 2010) (applying Matsushita). The Full Faith and Credit Act remains applicable even
`where “the judgment was the product of a class action and incorporated a settlement agreement
`releasing claims within the exclusive jurisdiction of the federal courts.” Matsushita, 516 U.S. at
`373. In other words, “a judgment entered in a class action, like any other judgment entered in a
`state judicial proceeding, is presumptively entitled to full faith and credit under the express terms
`of the Act.” Id. at 374.
`The Zanca settlement approved by the state court system in North Carolina, where Epic
`Games is headquartered, is entitled by law to full faith and credit in this Court. North Carolina law
`comports with the general rule that a judgment entered on a settlement is entitled to full effect. See,
`e.g., Ehrenhaus v. Baker, 717 S.E.2d 9, 23 (N.C. Ct. App. 2011) (explaining that by opting out of
`a class action settlement a “class member avoids the preclusive effect of the settlement”) (emphasis
`added). As such, under the Full Faith and Credit Act, the North Carolina judgment approving the
`nationwide settlement in Zanca must be given the same effect in this Court as it would be given in
`a North Carolina state court. See Matsushita, 516 U.S. at 373; see also Kremer v. Chem. Const.
`Corp., 456 U.S. 461, 481 (1982) (“[S]tate proceedings need do no more than satisfy the minimum
`procedural requirements of the Fourteenth Amendment’s Due Process Clause in order to qualify
`for the full faith and credit guaranteed by federal law.”). Here, Plaintiffs’ claims were released
`under the terms of the Zanca settlement. Jacobson Decl. Ex. B at ¶ 3.1. Accordingly, just as a
`North Carolina state court would treat Plaintiffs’ claims as released, this Court must do the same.
`Because Plaintiffs have released their claims by operation of the Zanca settlement, the case is moot.
`//
`//
`//
`//
`//
`//
`//
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`UNOPPOSED MOTION TO DISMISS CASE AS MOOT
`
`
`CASE NO. 3:21-CV-00976-CRB
`
`- 3 -
`
`

`

`Case 3:21-cv-00976-CRB Document 52 Filed 04/13/22 Page 8 of 8
`
`
`
`CONCLUSION
`Based on the foregoing, Epic Games respectfully requests that the Court grant this
`unopposed motion and dismiss Plaintiffs’ Complaint, with prejudice, as moot.
`
`
`Dated: April 13, 2022
`
`
`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.
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`FAEGRE DRINKER
`BIDDLE & REATH LLP
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`EPIC GAMES, INC.’S NOTICE OF MOTION AND
`UNOPPOSED MOTION TO DISMISS CASE AS MOOT
`
`
`- 4 -
`
`CASE NO. 3:21-CV-00976-CRB
`
`