‘Fortnite’ Creator Ducks Bulk of Boy’s Suit Over In-App Purchases

OAKLAND, Calif. (CN) – It doesn’t take long for anyone who has ever played a free online video game to realize that those games do cost money – sometimes a lot.  This is why video game companies eventually came up with the idea to call them “free to play,” denoting that there will at some point come a time when the user is compelled to pull out their credit card.

On March 4, 2018, a kid from California joined the ranks of the disabused when he downloaded “Fortnite,” an online game where 100 players at a time fight each other to the death in an ever-shrinking island arena. Players can mine resources and build structures to bolster their chances of survival, but the real allure of the game seems to be the in-game items you can buy: the costumes (skins) to make your character look like John Wick, dances (emotes) you can use to taunt opponents, and the truly bizarre weapons and harvesting tools – like a knockwurst-shaped pickaxe.

Using gift cards his family had given him for his birthday, Johnny Doe bought a bunch of items using Fornite’s virtual currency called “V-bucks.” Because they’re so hard to earn in the game, players can buy V-bucks with real money; for instance, 100 V-bucks equals $1.00, or if you’re looking for a deal, $99 will get you 13,500 pieces of the virtual dough.

Johnny used V-bucks to buy some nonrefundable items. According to his lawsuit, he wanted to reverse those purchases after discovering how much they cost but couldn’t because they were nonrefundable.

His guardian filed a class action on his behalf against Fortnite developer Epic Games in 2019, 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.

“This lack of understanding is especially apparent given many young players’ willingness to spend hundreds or even thousands of dollars on V-bucks. If a player was confronted with the amount of money he or she would need to spend at the time of purchase, as opposed to when the player has purchased the game and is invested in playing, most players would think that hundreds of dollars, let alone thousands of dollars, is an exorbitant price to pay to play a video game,” Doe’s complaint says.

The lawsuit also says Epic has no option for a parental veto, makes in-game purchases disturbingly easy. The company also doesn’t provide a purchase history so players can track their spending.

“After installation, Epic does not provide mechanisms for any parental control including requiring authorization of any in-App purchases. Epic purposefully makes in-app purchases easy one-click requests,” Doe’s complaint says. “Even when the minors change their mind in a matter of minutes, minors are not able to refund the purchase and disaffirm the contract.”

In a ruling late last week, U.S. District Judge Yvonne Gonzalez Rogers axed most of Johnny’s claims, finding that V-bucks are not actual goods and services under California’s Consumer Legal Remedies Act and that Johnny’s complaint is woefully lacking in detail.

“Nowhere in the complaint does plaintiff allege facts showing that defendant misrepresented the characteristics, uses, benefits, or quantities of V-bucks, or failed to disclose that they were of lower standard or quality than represented,” Gonzalez Rogers wrote. “Further, and as previously explained, plaintiff fails to explain how he was misled regarding his rights, remedies, or obligations when making the in-app purchases.”

Gonzalez Rogers also dismissed Doe’s unfair competition law claim that Epic knowingly hid from him how much money he had spent on in-game items.

“Plaintiff’s argument that minors do not have access to information about their purchase history is undermined by the fact that plaintiff’s allegations in this case are based on in-app purchases he made using his own money,” she wrote. “Moreover, it is reasonable to believe that at least some minors obtain the consent of their parents or guardians before using their credit cards or bank accounts to make in-app purchases, and for those who do not, the court is not persuaded that defendant must make their purchase history easily accessible through Fortnite.”

The only part of the case the judge kept alive was Doe’s claim that under California law, he has a right as a minor to deny responsibility for a contract. She found Doe did disaffirm Epic’s end user license agreement via a May 17, 2019, letter his counsel sent Epic Games indicating his disaffirmation and intent never to play Fortnite again. She denied Epic’s bid to send the case to arbitration on these grounds.

However, a dispute remains as to whether Johnny disaffirmed the in-app purchases and whether he is entitled to a refund. That Gonzalez Rogers narrowed the case to this single issue portends that this will remain an individual case and not become a class action.

Gonzalez Rogers also denied Doe’s request to proceed anonymously. In court documents, Doe had asked to keep his identify secret because he feared the retaliation and bullying that might come with suing the developer of a monstrously popular video game.

“This fear is real: Plaintiff is a minor at a tender age and sensitive emotional and physical development. The risk of suicide in middle school and high schools has increased over the years. The topic of video gaming is sensitive in schools and kids who take a stance against video gaming are often ridiculed as nerds and isolated socially,” his attorney Deepali Brahmbhatt wrote in a court filing. “The fact that plaintiff has filed this lawsuit against a popular video-gaming company Epic, makes the risk of retaliation and harassment even worse, and there is no indication that the Epic would withhold from continuing its behavior in a public forum.”

The filing also said the case could hurt Johnny’s chances of getting into private school and college, and that he and his guardian may drop the lawsuit altogether if his motion to proceed under a pseudonym is denied.

Gonzalez Rogers wasn’t persuaded, writing,  “Although plaintiff’s position in this litigation may be unpopular to some, his fear of social stigmatization is speculative and there is no indication plaintiff is likely to suffer more severe retaliation than in the typical consumer action.”

Doe’s lawyers did not respond to emails and phone calls requesting comment. A lawyer for Epic Games said he was only authorized to speak on background.

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