Video game makers attempt to send kid's addiction claims to arbitration

LOS ANGELES (CN) — Epic Games, Roblox and Microsoft asked a California judge on Tuesday to compel the mother of a 14-year-old to arbitrate her claims that their video games are designed to be addictive to minors and are therefore harmful to her child’s mental health.

Los Angeles County Superior Court Judge Lawrence Riff took the defendants’ request under submission after a six-hour hearing that revolved around the question whether either the child or their parents entered into a contractual agreement to arbitrate any disputes with the companies even though they have said they don’t recall doing so.

“I’ll issue a written decision,” the judge told the lawyers. “I don’t know how it will come out.”

The lawsuit by Evette Gibson on behalf of her child, only identified by the initials I.H.G., is among about 40 consolidated cases in California state court seeking to hold the makers of Fortnite, Roblox and Xbox, as well as Microsoft’s subsidiary Mojang which develops the Minecraft game, liable for children’s compulsive use of their products.

The Gibson lawsuit is the first one of the cases before Riff to test whether under California law the plaintiffs can be forced into binding arbitration rather than taking their claims to a jury trial.

Ambika Kumar, an attorney representing Microsoft, argued that it would mean the end of e-commerce if anyone could get out of binding arbitration by simply claiming that they don’t recall agreeing to terms of use that are commonplace for almost any online platform.

“To play a game on Xbox, you need to have a Microsoft and Xbox account,” she told the judge. “And this requires you to agree to Microsoft services agreement.”

Allison Libeu, an attorney for Epic Games, also pointed out that to play Fortnite requires agreeing to the game’s end user license agreement and that I.H.G. did so for multiple accounts they created.

Gibson’s three attorneys argued that the evidence presented by the video game developers left it undetermined who in fact agreed to the companies’ terms of use, which they said undermined the defense’s position that a valid and enforceable contract was created.

“They don’t know who the user is that assented,” Seth Katz, the plaintiff’s attorney who addressed the Roblox motion to compel, said. “The information is just not there, and their inferences are not supported.”

In its request to send the claims to arbitration, Epic Games cited half a dozen cases in federal court in recent years where similar video addiction claims had been sent to arbitration notwithstanding arguments asserting minors’ lack of capacity, disaffirmance of users agreements and unconscionability.

The Gibson lawsuit is part of the so-called gateway video game addiction litigation. It pertains to games such Fortnite and Roblox that are popular with children and purportedly gets them hooked on playing video games to the detriment of their emotional and social wellbeing.

Gibson said her child began playing video games when they were eight years old. She claims that the child has developed a “disordered” relationship with video games and, as a result, suffers from severe emotional distress, diminished social interactions, lack of interest in other hobbies and withdrawal symptoms such as rage, anger and physical outbursts.

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