Judge Dismisses Some Fortnite Class Action Claims, But Case Moves Forward

A federal judge in California has ruled only some of the claims made in a class action lawsuit against Fortnite game app maker Epic Games may move forward.

U.S. District Court Judge Yvonne Gonzalez Rogers granted the defendant’s motion to dismiss the case regarding the claims of violations of good faith and fair dealing, unjust enrichment and the Consumer Legal Remedies Act. 

However, Judge Rogers denied the motion to dismiss all other claims made in the case and gave Epic Games 21 days to respond to her order.

In their class action lawsuit, the plaintiff, a minor, and his mother alleged that Epic Games prompts children to make in-app purchases.

Even though the app itself is free to download, players are driven to make nonrefundable in-app purchases “in the heat of the moment.”

The minor plaintiff says he made in-app purchases with gift cards he’d received as birthday gifts. 

The Fortnite game app doesn’t notify players how much money they’ve spent on in-app purchases, the lawsuit alleges, thereby making it difficult for them to consider whether additional purchases are reasonable.

“Even when the minors change their mind in a matter of minutes, minors are not able to refund the purchase and disaffirm the contract,” the Fortnite class action lawsuit alleges.

Judge Rogers is allowing some of the plaintiffs’ claims to move forward, including allegations of violation of California’s Unfair Competition Law and the California Business and Professions Code.

The plaintiffs’ amended complaint contained new allegations that Epic Games was negligent in its misrepresentation of the Fortnite game app.

The plaintiffs allege Epic Games “conceal[s] the terms of the in-App purchase at the time of purchase by not displaying non-refundability or by displaying non-refundability in very small font” and argue that minors are not the type of buyers who are going to look for refund policy options. 

So, by not including “visibly cautionary language at the time of promoting in-App purchases,” Epic’s conduct is misleading, the plaintiffs argue.

The judge ruled that this claim could move forward.

In a previous order, the Court rejected Epic’s request for a dismissal of the plaintiffs’ claims for declaratory judgment because there was a question as to the rights of minors to disaffirm in-app purchases and whether they are entitled to refunds.

The Court also previously denied the dismissal of the plaintiffs’ claim of violation of the Unfair Competition Law’s “‘unlawful’ prong to the extent it is predicated on defendant’s alleged violation of the minor’s right to disaffirm a contract.”

Epic Games now argues the plaintiffs’ new allegations provide additional grounds for dismissal of those claims, the judge’s order says. 

According to Epic Games, the plaintiff can’t invoke disaffirmance rights for purchases made using Apple or Sony gift cards redeemed on the iTunes and PlayStation marketplaces, respectively, because “there is no factual support” in the plaintiffs’ first amended complaint for their characterization of Apple and Sony as “payment vendors” that “merely facilitate transactions on behalf of” the defendant.

In addition, Epic Games claims, the plaintiff asserts that the minor purchased in-app content in line with Epic’s End User License Agreement.

However, the Court disagrees.

The Court said in its order it was not convinced the plaintiffs are legally precluded “from invoking disaffirmance as to transactions made by” the minor using his mother’s credit card. 

In discussing the claim of violation of good faith and fair dealing, Judge Rogers said the plaintiffs’ amended complaint included a new allegation that by frequently releasing new content without notice, previously purchased content is rendered “stale within a short period of time,” breaching the covenant.

“Even construing these allegations in the manner most favorable to plaintiffs, the Court finds this theory too strained to support a claim,” the ruling said. “There is nothing inherently inconsistent with defendant marketing its in-App content as ‘in keeping with the current fad’ and a ‘great value proposition,’ while introducing new and updated content on a weekly or bi-weekly basis.”

Judge Rogers added that the crux of the plaintiffs’ claims was that minors were induced to make one-click purchases, but it is likely that after a few new content releases by Epic, “even a minor would be on notice of — and perhaps come to expect — this feature of Fortnite.”

The Court also dismissed the plaintiffs’ claims that Epic Games was unjustly enriched.

“Although plaintiffs have amended their pleadings as to defendant’s alleged misrepresentations or omissions, unjust enrichment ultimately is a quasi-contract claim,” the ruling said.

At least one other class action lawsuit has been filed regarding the Fortnite game app’s in-app purchases option.

One mother says her child, who plays Fortnite on the Sony PlayStation, made more than $1,000 in in-app purchases while playing the game. She says the way the game is played on PlayStation encourages young players to make the purchases.

Have you made in-app purchases in the Fortnite game app? Tell us about your experience in the comments.

The plaintiffs are represented by Peter R. Afrasiabi, Deepali A. Brahmbhatt and John E. Lord of One LLP.

The Fortnite In-App Purchases Class Action Lawsuit is C.W., et al. v. Epic Games Inc., Case No. 4:19-cv-03629-YGR, in the U.S. District Court for the Northern District of California.

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