Doe v. Epic Games, Inc.

Fortnite was a video game created by Epic Games, Inc. (Epic) (defendant). Johnny Doe (plaintiff), a minor, created a Fortnite account in March 2018. Upon downloading the game, Johnny clicked a box indicating that he read and agreed to Epic’s end-user license agreement (EULA). The EULA governed players’ rights and obligations and stated that it could be amended at any time, with continued use constituting acceptance. Johnny did not recall seeing, reading, or agreeing to the EULA, and his parents did not review or agree to it. In early June 2019, Johnny logged into Fortnite and accepted an amended EULA containing an arbitration clause. Although Fortnite was free to download, it allowed players to make largely nonrefundable in-app purchases. Using gift cards he received on special occasions, Johnny made several such in-app purchases that he later wished to cancel. On May 17, 2019, Johnny’s lawyer sent Epic a letter asserting that Epic targeted minors for in-app purchases without parental consent and that Johnny could legally disaffirm his in-app-purchase contracts. The letter demanded that Epic change its refund policy and warned of litigation. In late June 2019, Johnny filed a putative class action on behalf of minors who made nonrefundable in-app purchases (plaintiffs). Epic moved to compel arbitration based on the clause in the amended EULA. Johnny opposed the motion, arguing that he disaffirmed both the original and amended EULAs by sending the May 17 letter and filing suit. Epic responded that Johnny had not clearly communicated what he was disaffirming and had continued playing Fortnite after the alleged disaffirmance. Johnny denied having played Fortnite after filing suit and stated he had no intention of doing so in the future.