Fortnite Maker Can’t Dodge Class Action Over Claims It Lures Kids Into Making In-Game Purchases

(Pixabay image via CNS)

OAKLAND, Calif. (CN) — A federal judge resuscitated a class action alleging Fortnite developer Epic Games lures kids into making impulsive in-app buys that they later regret but cannot retract.

A California boy learned this hard lesson after opening a Fortnite account in 2018. The minor, identified as C.W., used Fortnite’s virtual currency “V-bucks” to buy some nonrefundable items he claims he didn’t know at the time were nonrefundable, like a “Battle Pass” that allows players access to new weapons, character skins and in-game dances and taunts called emotes.

His mother Rebecca White filed a class action against Epic Games in 2019 on his behalf, saying the company, which made $2.4 billion in profit in 2018, violates California law by exploiting children’s ignorance about the relationship of in-game currency to actual money. 

C.W.’s original lawsuit says he used gift cards to purchase the items, but the amended complaint adds that he also used his mother’s credit card.

Though she tossed much of the case in January, U.S. District Judge Yvonne Gonzalez Rogers kept alive one claim that under California law, C.W. has a right as a minor to deny responsibility for a contract. In her latest order, Gonzalez Rogers said she found no reason to reconsider.

C.W. argued in his amended complaint that Epic Games hides its non-refundability policy by displaying it in very small font. For Gonzalez Rogers, that was enough to advance a claim for negligent misrepresentation, as C.W. says he was misled by the confusing way the policy was presented. 

“In sum, instead of simply stating that no notice was given, which was contradicted by one of the screenshots in in the initial complaint, plaintiffs now allege in greater detail that the manner in which defendant made or failed to make representations about refundability was confusing, inconspicuous, inadequate, and designed to induce frequent in-App purchases, which it did by virtue of C.W.’s age, the nature of the Fortnite ecosystem, and the lack of parental controls,” she wrote. 

“Taking plaintiffs’ allegations as true, they suffice to state a claim that defendant made material misrepresentations or omissions on which C.W. justifiably relied to his own detriment.”

Gonzalez Rogers also found these allegations sufficient to show unfair and fraudulent conduct, writing, “Here, given the court’s holding on the negligent misrepresentation claim, and in particular, plaintiffs’ amended allegations regarding the manner in which defendant allegedly lures minors to spend large amounts of money on in-App purchases without parental consent, the court finds plaintiffs state a plausible claim that defendant’s conduct is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.”

As in her prior order, Gonzalez Rogers dismissed, this time with prejudice, C.W.’s claims for unjust enrichment and violation of the California’s Consumer Legal Remedies Act, finding Epic Games not legally required to disclose the terms of its refunds. 

“Indeed, the FAC alleges that defendant allows for free downloads of Fortnite, and thus, even if it tries to lure minors into spending large sums within the game, at least some Fortnite players are not concerned with the refundability terms at all,” she wrote.

Attorneys for both parties did not immediately respond to emails seeking comment late Thursday.

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