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Brief Update: EA and Sony Both Win Motions to Compel Arbitration in Loot Box Cases
In our March 2021 Loot Box Litigation Snapshot, we highlighted a number of cases involving motions to compel arbitration. We paid particular attention to a San Diego Superior Court’s decision to deny Blizzard’s motion to compel arbitration and will be waiting to see what the appellate court does. Two other, recent decisions on motions to compel arbitration in loot box class-action cases have both come out the other way. They merit a brief review.
EA Wins Motion to Compel
First, on March 5, 2021, a Northern District of California court granted EA’s motion to compel arbitration in a class-action case involving EA’s “Ultimate Team Packs” featured in FIFA and Madden NFL games. The court observed that EA presents users with an agreement via a pop-up window that users can scroll through if they wish and must accept the agreement before continuing the game. (Note: the San Diego court seemed to make a fuss about the scrolling part being optional and implied it should be mandatory, whereas this court makes no such statement.) While the rest is mostly standard fare, one thing I found interesting was that the court highlighted that EA included language specifically mentioning the arbitration agreement and class-action waiver not only in the agreement itself, but also directly above the user agreement’s acceptance button. For anyone looking for best practices on drafting a user agreement and a solid UX flow to go with it, with enforceability of the arbitration and class-action waiver provisions in mind, this is an opinion worth reviewing. Ramirez v. Elec. Arts Inc., No. 20-CV-05672-BLF, 2021 WL 843184 (N.D. Cal. Mar. 5, 2021).
Sony Interactive Entertainment Wins Motion to Compel
On March 30, 2021, another judge in the Northern District of California granted Sony’s motion to compel arbitration in a class-action involving minors who spent money on Fortnite via their PlayStations without their parents’ knowledge or consent. The named plaintiff’s sole argument against arbitration was that her minor son could not be bound by a contract under California law. The court said this argument was “beside the point for present purposes…because the complaint alleges a dispute entirely between [the mom] and [Sony].” The court found the mother’s claim to be entirely within the scope of the arbitration provision and granted the motion. Nothing terribly interesting here, other than it follows the normal trend — at least in federal district courts — of respecting game publishers’ user agreements, including standard arbitration and class-action waiver provisions. Crawford v. Sony Int. Ent., No. 20-cv-01732-JD (N.D. Cal. Mar. 30, 2021).