1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 S.T.G., S.B.G., and S.J.G., minors, by Case No.: 24-cv-517-RSH-AHG and through their guardian SAMUEL 12 GARCIA; I.H. and E.H., minors, by and ORDER GRANTING DEFENDANT’S 13 through their guardian ARNOLD RENEWED MOTION TO COMPEL HERNANDEZ; and M.A. and E.V.A., ARBITRATION 14 minors, by and through their guardian 15 STEPHANIE ALLEN; individually and on behalf of all others similarly situated; [ECF Nos. 40, 46] 16 Plaintiffs, 17 v. 18 EPIC GAMES, INC., 19 Defendant. 20 21 22 Before the Court is a renewed motion to compel arbitration filed by defendant Epic 23 Games, Inc. ECF No. 40. As set forth below, the motion is granted. 24 I. BACKGROUND 25 Plaintiffs filed this putative class action on March 18, 2024, against the maker of the 26 popular video game Fortnite. ECF No. 1. Plaintiffs are seven minors who played Fortnite 27 while under the age of 13, who claim that without their parents’ consent, the videogame 1 unlawfully collected sensitive data protected under the Children’s Online Privacy 2 Protection Act (“COPPA”), 15 U.S.C. §§ 6501-6506, which Defendant exploited for 3 commercial gain. Id. at ¶¶ 11-12. Plaintiffs are suing through their guardians ad litem. 4 Although COPPA itself does not provide a private right of action, Plaintiffs bring state law 5 claims for violation of privacy, unfair competition, and unjust enrichment based on 6 Defendant’s conduct that is alleged to violate COPPA. Id. at ¶¶ 1, 52. The Complaint does 7 not specify when Plaintiffs played Fortnite, but asserts that they bring their claims “on 8 behalf of themselves and all similarly situated children under the age of 13 who have been 9 injured by Defendant’s conduct from July 21, 2017 through February 20, 2023 (the ‘Class 10 Period’).” Id. at ¶ 1. 11 On May 20, 2024, Defendant moved to compel arbitration as to all seven minor 12 plaintiffs. ECF No. 12. The motion was based on an arbitration provision in the End User 13 License Agreement (“EULA”) that a user must accept to download Fortnite after first 14 creating an Epic Games account. The arbitration provision contains, among other 15 provisions, a “delegation clause” referring to the arbitrator any disputes about the validity, 16 enforceability, or scope of the arbitration provision. ECF No. 12-2 at Ex. A § 12.3.1. In 17 opposing the motion, Plaintiffs argued that: (1) six of the seven minors, subsequent to 18 accepting the EULA containing the arbitration provision, disaffirmed that agreement; and 19 (2) the seventh minor, E.V.A., never accepted the EULA in the first place, but instead 20 played Fortnite on an account created by her mother, Ms. Allen. See ECF No. 13. Relying 21 on a declaration by Ms. Allen, Plaintiffs wrote, “E.V.A. is, thus, a non-signatory to the 22 2019 EULA and is not bound by the 2019 EULA’s arbitration (or other) provisions.” ECF 23 No. 13 at 18. 24 On October 2, 2024, the Court granted the motion to compel arbitration in part. ECF 25 No. 21. As to the six minors who had created an Epic Games account, downloaded Fortnite, 26 and accepted the EULA, the Court ruled that their claims as well as their disaffirmance 27 defense fell within the scope of the EULA’s arbitration agreement. ECF No. 21 at 16. In 1 contrast, the Court declined to compel arbitration against E.V.A. as a “Nonparty to the 2 EULA,” finding that “Defendant has not at this time established an adequate basis for 3 compelling E.V.A. to arbitration under the EULA.” ECF No. 21 at 16, 17. The Court cited 4 Ms. Allen’s declaration, as well as Plaintiffs’ contention that E.V.A. never created an Epic 5 Games account and therefore was not a party to the EULA. Id. at 16. 6 Defendant took an interlocutory appeal from that portion of the Court’s order 7 denying the motion to compel as to E.V.A. ECF No. 22. This Court stayed E.V.A.’s case 8 pending disposition of the appeal. ECF No. 26. 9 Contemporaneous with the appeal, four of the six other plaintiffs filed demands for 10 arbitration. The Parties have provided the Court with periodic status updates relating to the 11 arbitration proceedings. ECF Nos. 29, 31.1 12 On August 17, 2025, the Parties filed a joint motion for an indicative ruling pursuant 13 to Fed. R. Civ. P. 62.1. ECF No. 32. In the joint motion, the Parties explained: 14 It has now emerged that certain facts relied upon by the Court in its ruling with respect to E.V.A. were mistaken. E.V.A.’s mother 15 Stephanie Allen had declared that E.V.A. played Epic Games’ Fortnite 16 video game in an account Ms. Allen created, and that E.V.A. did not have an account of her own. See Declaration of Stephanie Allen dated 17 July 8, 2024 (Dkt. No. 13-5), ¶ 3. But Ms. Allen has subsequently 18 learned that, in November 2021, E.V.A. created her own account to play Fortnite and that E.V.A.’s Fortnite gameplay was regularly in this 19 account E.V.A. created. 20 ECF No. 32 at 2. The Parties asked this Court for a statement that, if the Ninth Circuit were 21 to remand the case rather than hearing the present appeal, this Court would vacate its 22 existing order denying arbitration as to E.V.A., to allow a renewed motion to compel based 23 24 25 1 Defendant advises that “at the Parties’ request, the arbitrator has paused proceedings 26 pending this Court’s determination of whether E.V.A. must also resolve her dispute in arbitration. The other two original plaintiffs … never commenced arbitrations.” ECF No. 27 1 on the new facts. Id. On August 18, 2025, this Court issued the requested order. ECF No. 2 33. 3 On August 21, 2025, the Court of Appeals remanded the case. ECF No. 34. At the 4 Parties’ request, this Court set an extended briefing schedule for a renewed motion to 5 compel. ECF No. 37. 6 II. DISCUSSION 7 The Court’s prior order provides background on the EULA and sets forth the 8 applicable legal standard. ECF No. 21 at 2-7. Under the analysis contained in that order, 9 E.V.A. is identically situated, for purposes of Defendant’s motion to compel, to the other 10 six minor plaintiffs whom the Court directed to arbitration. Plaintiffs do not argue 11 otherwise. Instead, in opposing the renewed motion to compel arbitration, they raise an 12 argument they did not raise previously relating to contract formation. ECF No. 43 at 6. 13 Plaintiffs do not dispute that in order to play Fortnite, E.V.A. like her co-plaintiffs was 14 required to and did: (1) view a scroll box displaying the EULA, with an all-bolded, all- 15 capitalized statement that the EULA contains a binding arbitration agreement, and that the 16 user has a time-limited right to opt out; (2) click inside a box confirming that the user has 17 read and agrees with the EULA; and (3) click an “Accept” button. See ECF No. 21 at 2. 18 Plaintiffs contend, rather, that the language of the EULA itself precluded E.V.A. from 19 accepting it. 20 Plaintiffs’ new argument is based on the following provision of the EULA: 21 TO ENTER INTO THIS LICENSE AGREEMENT, YOU MUST BE AN ADULT OF THE LEGAL AGE OF MAJORITY IN YOUR 22 COUNTRY OF RESIDENCE. YOU ARE LEGALLY AND 23 FINANCIALLY RESPONSIBLE FOR ALL ACTIONS USING OR ACCESSING OUR SOFTWARE, INCLUDING THE ACTIONS OF 24 ANYONE YOU ALLOW TO ACCESS YOUR ACCOUNT, YOU 25 AFFIRM THAT YOU HAVE REACHED THE LEGAL AGE OF MAJORITY, UNDERSTAND AND ACCEPT THIS AGREEMENT 26 (INCLUDING ITS DISPUTE RESOLUTION TERMS). IF YOU ARE 27 UNDER THE LEGAL AGE OF MAJORITY, YOUR PARENT OR 1 LEGAL GUARDIAN MUST CONSENT TO THIS AGREEMENT.
2 ECF No. 43 at 4; ECF No. 40-1 (EULA at Ex. A, p. 9). Plaintiffs interpret this language as 3 expressly limiting the offer made in the EULA to adults, such that only adults—and not 4 minors like E.V.A.—have the power to accept and be bound by the EULA. ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 S.T.G., S.B.G., and S.J.G., minors, by Case No.: 24-cv-517-RSH-AHG and through their guardian SAMUEL 12 GARCIA; I.H. and E.H., minors, by and ORDER GRANTING DEFENDANT’S 13 through their guardian ARNOLD RENEWED MOTION TO COMPEL HERNANDEZ; and M.A. and E.V.A., ARBITRATION 14 minors, by and through their guardian 15 STEPHANIE ALLEN; individually and on behalf of all others similarly situated; [ECF Nos. 40, 46] 16 Plaintiffs, 17 v. 18 EPIC GAMES, INC., 19 Defendant. 20 21 22 Before the Court is a renewed motion to compel arbitration filed by defendant Epic 23 Games, Inc. ECF No. 40. As set forth below, the motion is granted. 24 I. BACKGROUND 25 Plaintiffs filed this putative class action on March 18, 2024, against the maker of the 26 popular video game Fortnite. ECF No. 1. Plaintiffs are seven minors who played Fortnite 27 while under the age of 13, who claim that without their parents’ consent, the videogame 1 unlawfully collected sensitive data protected under the Children’s Online Privacy 2 Protection Act (“COPPA”), 15 U.S.C. §§ 6501-6506, which Defendant exploited for 3 commercial gain. Id. at ¶¶ 11-12. Plaintiffs are suing through their guardians ad litem. 4 Although COPPA itself does not provide a private right of action, Plaintiffs bring state law 5 claims for violation of privacy, unfair competition, and unjust enrichment based on 6 Defendant’s conduct that is alleged to violate COPPA. Id. at ¶¶ 1, 52. The Complaint does 7 not specify when Plaintiffs played Fortnite, but asserts that they bring their claims “on 8 behalf of themselves and all similarly situated children under the age of 13 who have been 9 injured by Defendant’s conduct from July 21, 2017 through February 20, 2023 (the ‘Class 10 Period’).” Id. at ¶ 1. 11 On May 20, 2024, Defendant moved to compel arbitration as to all seven minor 12 plaintiffs. ECF No. 12. The motion was based on an arbitration provision in the End User 13 License Agreement (“EULA”) that a user must accept to download Fortnite after first 14 creating an Epic Games account. The arbitration provision contains, among other 15 provisions, a “delegation clause” referring to the arbitrator any disputes about the validity, 16 enforceability, or scope of the arbitration provision. ECF No. 12-2 at Ex. A § 12.3.1. In 17 opposing the motion, Plaintiffs argued that: (1) six of the seven minors, subsequent to 18 accepting the EULA containing the arbitration provision, disaffirmed that agreement; and 19 (2) the seventh minor, E.V.A., never accepted the EULA in the first place, but instead 20 played Fortnite on an account created by her mother, Ms. Allen. See ECF No. 13. Relying 21 on a declaration by Ms. Allen, Plaintiffs wrote, “E.V.A. is, thus, a non-signatory to the 22 2019 EULA and is not bound by the 2019 EULA’s arbitration (or other) provisions.” ECF 23 No. 13 at 18. 24 On October 2, 2024, the Court granted the motion to compel arbitration in part. ECF 25 No. 21. As to the six minors who had created an Epic Games account, downloaded Fortnite, 26 and accepted the EULA, the Court ruled that their claims as well as their disaffirmance 27 defense fell within the scope of the EULA’s arbitration agreement. ECF No. 21 at 16. In 1 contrast, the Court declined to compel arbitration against E.V.A. as a “Nonparty to the 2 EULA,” finding that “Defendant has not at this time established an adequate basis for 3 compelling E.V.A. to arbitration under the EULA.” ECF No. 21 at 16, 17. The Court cited 4 Ms. Allen’s declaration, as well as Plaintiffs’ contention that E.V.A. never created an Epic 5 Games account and therefore was not a party to the EULA. Id. at 16. 6 Defendant took an interlocutory appeal from that portion of the Court’s order 7 denying the motion to compel as to E.V.A. ECF No. 22. This Court stayed E.V.A.’s case 8 pending disposition of the appeal. ECF No. 26. 9 Contemporaneous with the appeal, four of the six other plaintiffs filed demands for 10 arbitration. The Parties have provided the Court with periodic status updates relating to the 11 arbitration proceedings. ECF Nos. 29, 31.1 12 On August 17, 2025, the Parties filed a joint motion for an indicative ruling pursuant 13 to Fed. R. Civ. P. 62.1. ECF No. 32. In the joint motion, the Parties explained: 14 It has now emerged that certain facts relied upon by the Court in its ruling with respect to E.V.A. were mistaken. E.V.A.’s mother 15 Stephanie Allen had declared that E.V.A. played Epic Games’ Fortnite 16 video game in an account Ms. Allen created, and that E.V.A. did not have an account of her own. See Declaration of Stephanie Allen dated 17 July 8, 2024 (Dkt. No. 13-5), ¶ 3. But Ms. Allen has subsequently 18 learned that, in November 2021, E.V.A. created her own account to play Fortnite and that E.V.A.’s Fortnite gameplay was regularly in this 19 account E.V.A. created. 20 ECF No. 32 at 2. The Parties asked this Court for a statement that, if the Ninth Circuit were 21 to remand the case rather than hearing the present appeal, this Court would vacate its 22 existing order denying arbitration as to E.V.A., to allow a renewed motion to compel based 23 24 25 1 Defendant advises that “at the Parties’ request, the arbitrator has paused proceedings 26 pending this Court’s determination of whether E.V.A. must also resolve her dispute in arbitration. The other two original plaintiffs … never commenced arbitrations.” ECF No. 27 1 on the new facts. Id. On August 18, 2025, this Court issued the requested order. ECF No. 2 33. 3 On August 21, 2025, the Court of Appeals remanded the case. ECF No. 34. At the 4 Parties’ request, this Court set an extended briefing schedule for a renewed motion to 5 compel. ECF No. 37. 6 II. DISCUSSION 7 The Court’s prior order provides background on the EULA and sets forth the 8 applicable legal standard. ECF No. 21 at 2-7. Under the analysis contained in that order, 9 E.V.A. is identically situated, for purposes of Defendant’s motion to compel, to the other 10 six minor plaintiffs whom the Court directed to arbitration. Plaintiffs do not argue 11 otherwise. Instead, in opposing the renewed motion to compel arbitration, they raise an 12 argument they did not raise previously relating to contract formation. ECF No. 43 at 6. 13 Plaintiffs do not dispute that in order to play Fortnite, E.V.A. like her co-plaintiffs was 14 required to and did: (1) view a scroll box displaying the EULA, with an all-bolded, all- 15 capitalized statement that the EULA contains a binding arbitration agreement, and that the 16 user has a time-limited right to opt out; (2) click inside a box confirming that the user has 17 read and agrees with the EULA; and (3) click an “Accept” button. See ECF No. 21 at 2. 18 Plaintiffs contend, rather, that the language of the EULA itself precluded E.V.A. from 19 accepting it. 20 Plaintiffs’ new argument is based on the following provision of the EULA: 21 TO ENTER INTO THIS LICENSE AGREEMENT, YOU MUST BE AN ADULT OF THE LEGAL AGE OF MAJORITY IN YOUR 22 COUNTRY OF RESIDENCE. YOU ARE LEGALLY AND 23 FINANCIALLY RESPONSIBLE FOR ALL ACTIONS USING OR ACCESSING OUR SOFTWARE, INCLUDING THE ACTIONS OF 24 ANYONE YOU ALLOW TO ACCESS YOUR ACCOUNT, YOU 25 AFFIRM THAT YOU HAVE REACHED THE LEGAL AGE OF MAJORITY, UNDERSTAND AND ACCEPT THIS AGREEMENT 26 (INCLUDING ITS DISPUTE RESOLUTION TERMS). IF YOU ARE 27 UNDER THE LEGAL AGE OF MAJORITY, YOUR PARENT OR 1 LEGAL GUARDIAN MUST CONSENT TO THIS AGREEMENT.
2 ECF No. 43 at 4; ECF No. 40-1 (EULA at Ex. A, p. 9). Plaintiffs interpret this language as 3 expressly limiting the offer made in the EULA to adults, such that only adults—and not 4 minors like E.V.A.—have the power to accept and be bound by the EULA. ECF No. 43 at 5 7-10. 6 In contrast, Defendant interprets this language as containing a promise by the 7 accepting party that he or she is an adult, or has obtained consent from an adult; but 8 Defendant asserts that, whether such a promise is truthful or not in a given situation, a 9 minor has the power to accept the offer. ECF No. 40 at 14-15; ECF No. 45 at 3-4. Defendant 10 argues in the alternative that E.V.A.’s mother did in fact consent to the EULA, and that in 11 any case, the doctrine of equitable estoppel prevents E.V.A. from avoiding the arbitration 12 provision here. ECF No. 40 at 16-18. 13 The Court finds it unnecessary to reach the Parties’ arguments about the construction 14 of the “age of majority” provision quoted above, and agrees with Defendant that equitable 15 estoppel applies to require E.V.A. to arbitrate her claims here. 16 The Parties refer to Washington law to govern questions of whether E.V.A., a 17 Washington resident, entered into or is bound by the EULA. Under Washington law, as a 18 general matter, a party arguing equitable estoppel “must show ‘(1) an admission, statement 19 or act inconsistent with a claim later asserted; (2) reasonable reliance on that admission, 20 statement, or act by the other party; and (3) injury to the relying party if the court permits 21 the first party to contradict or repudiate the admission, statement, or act.’” Copper Leav, 22 LLC v. Ace Paving Co., 553 P.3d 111, 126 (Wash. Ct. App. 2024) (quoting Dep’t of 23 Ecology v. Theodoratus, 957 P.2d 1241, 1249 (Wash. 1998)). Equitable estoppel must be 24 established by clear, cogent, and convincing evidence. Reser v. Pollution Control Hearings 25 Bd., 541 P.3d 992, 1000 (Wash. Ct. App. 2023). In the context of a dispute over whether 26 parties to a lawsuit are bound by an arbitration agreement, “[e]quitable estoppel ‘precludes 27 1 a party from claiming the benefits of a contract while simultaneously attempting to avoid 2 the burdens that contract imposes.’” David Terry Invs., LLC-PRC v. Headwaters Dev. Grp. 3 LLC, 463 P.3d 117, 123 (Wash Ct. App. 2020) (quoting Townsend v. Quadrant Corp., 268 4 P.3d 917, 922 (2012) (lead opinion)).2 Thus, “[u]nder principles of equitable estoppel … a 5 party who knowingly exploits a contract for benefit cannot simultaneously avoid the 6 burden of arbitrating.” Townsend, 268 P.3d at 923 (majority opinion) (citing Satomi 7 Owners Ass’n v. Satomi, LLC, 225 P.3d 213, 230 n.22 (Wash. 2009)). 8 The Ninth Circuit has held, in an unpublished opinion applying the Washington 9 Supreme Court’s majority opinion in Townsend, that “a non-signatory does not knowingly 10 exploit the contract when they bring claims that ‘do not arise out of the contract’—that is, 11 when the non-signatory brings claims that ‘sound in tort and allege personal injuries.” B.F., 12 858 F. App’x at 220 (quoting Townsend, 268 P.3d at 924 (majority opinion). Plaintiffs 13 argue that Townsend and B.F. are “dispositive of Epic’s equitable estoppel argument,” 14 because E.V.A.’s claims in this lawsuit sound in tort and allege personal injuries, rather 15 than arising from the contract. ECF No. 43 at 13-14. Plaintiffs assert, “because E.V.A.’s 16 claims do not seek to enforce Epic’s obligations under the EULA, equitable estoppel does 17 not apply.” Id. at 14. 18 The Court disagrees that the decisions in Townsend or B.F. are dispositive here. 19 Those cases purport to address the situation where a signatory to an arbitration agreement 20 seeks to compel arbitration against a non-signatory. But E.V.A. is not a non-signatory to 21 the EULA. For Plaintiffs to imply that she is a non-signatory ignores the central fact that 22 was the basis for the Ninth Circuit’s remand and this Court’s rehearing of the motion to 23 24 25 2 As explained by the Ninth Circuit in B.F. v. Amazon.com Inc., 858 F. App’x 218, 26 221 n.1 (9th Cir. 2021), the “concurring/dissenting” opinion in Townsend, rather than the “lead” opinion, commanded a majority of the Washington Supreme Court and is binding 27 1 compel: the fact that, contrary to Plaintiff’s earlier representations to this Court, E.V.A. did 2 create her own Epic Games account, did download Fortnite, and did communicate her 3 acceptance of the terms of the EULA. Regardless of whether her claims sound in tort or in 4 contract, she is differently situated than the plaintiffs in Townsend or B.F. She affirmatively 5 represented to Defendant that she agreed to the EULA. 6 As discussed above, the Parties agree that in November 2021, E.V.A. created her 7 own Epic Games account to play Fortnite. ECF No. 32 at 2. Plaintiffs do not dispute that 8 at the time of creating that account, and as a condition of downloading and playing Fortnite, 9 E.V.A. was required to and did communicate that she had read and agreed to the EULA, 10 and indicated that she “Accept[ed]” its terms. Defendant also provides evidence, not 11 disputed by Plaintiffs, that the user of E.V.A.’s account again purported to accept the 12 EULA on multiple occasions: November 18, 2023; November 19, 2023; and December 18, 13 2024. ECF No. 40-1 ¶ 13. In other words, E.V.A. not only expressly manifested her 14 acceptance of the EULA before bringing this lawsuit—she did so again after she brought 15 this lawsuit, after her counsel opposed Defendant’s motion to compel based on a false 16 representation of fact, and after this Court relied on that misrepresentation to deny the 17 motion to compel as to her. Defendant also offers evidence of hundreds of gameplay 18 sessions using E.V.A.’s account, including hundreds of gameplay sessions occurring after 19 Defendant filed its motion to compel. Id. ¶ 20. Although E.V.A. does not bring claims for 20 breach of contract, each and every one of her claims results from her Fortnite gameplay, 21 which in turn was conditioned on her acceptance of the EULA. 22 Under these circumstances, the Court concludes that E.V.A.’s new argument seeks 23 an inequitable result. Her claim that she should be treated like a non-signatory to the EULA 24 is inconsistent with her repeated manifestations of assent to the EULA, as well as her 25 extensive availment of the gameplay license that was reasonably granted in reliance on her 26 assent. E.V.A.’s claims arise in connection with her exercise of this license, and as 27 previously found by this Court, are within the scope of the arbitration provision. To allow 1 ||E.V.A. to now repudiate those manifestations of assent to avoid the arbitration provision 2 |{in the EULA would be injurious and unfair to Defendant, which made agreement to that 3 provision a precondition for playing Fortnite. E.V.A. has repeatedly sought out and 4 received the benefits of the EULA while simultaneously attempting to avoid its burdens. 5 ||Defendant has established the conditions for equitable estoppel by clear, cogent, and 6 || convincing evidence. 7 “TA]| party cannot be required to submit to arbitration any dispute which he has not 8 |}agreed so to submit.” Satomi, 225 P.3d at 229. The Court concludes that E.V.A. has 9 repeatedly and unequivocally indicated her agreement to arbitration of her dispute here.* 10 CONCLUSION 1] For the foregoing reasons, Defendant’s renewed motion to compel arbitration [ECF 12 || No. 40] is GRANTED. The Court ORDERS plaintiff E.V.A. to proceed to arbitration, and 13 ||her claims are STAYED pending the completion of arbitration proceedings pursuant to 9 14 |/U.S.C. § 3. The Parties are further ORDERED to file a status update on their arbitration 15 proceedings every ninety (90) days and within seven (7) days of completion of 16 || arbitration. 17 IT IS SO ORDERED. ¢ □ 18 Dated: December 10, 2025 [behut 0 19 Hon. Robert S. Huie United States District Judge 20 21 22 3 Plaintiffs have requested a hearing on Defendant’s renewed motion, citing the 3 importance of the issues generally, as well seeking to address a “waiver” argument that 24 || Defendant raised in its reply brief. ECF No. 46. This motion is denied. The Court’s decision herein is not based on waiver. Nor does the Court need oral argument to elucidate the issues > Defendant’s renewed motion. The Parties have already taken numerous opportunities to 26 address these issues, in connection with: (1) the initial motion to compel; (2) the Ninth Circuit appeal of the partial denial of that motion; and (3) the renewed motion to compel. 7 || The motions before this Court have been fully briefed on each occasion. 28