Epic Games, Inc. (“Epic”) is the publisher of the popular online multiplayer videogame Fortnite, released in 2017. In recent years, Fortnight has gained worldwide popularity with gamers and esports followers (culminating in July 2019 when a sixteen-year-old player won the $3 million prize for winning the Fortnite World Cup).  Players, in one version of the game, are dropped onto a virtual landscape and compete in a battle royale to survive.  In the real world, Epic recently survived its own encounter – not with the help of scavenged weapons or shield potions – but through its well-drafted end user license agreement (“EULA” or “terms”).

Earlier this month, the District Court for the Eastern District of North Carolina granted Epic’s motion to compel individual arbitration of the claims of a putative class action.  The action arose in connection with a cyber vulnerability that allowed hackers to breach user accounts. The court concluded that the arbitration provision contained in the EULA was enforceable in this case, even where a minor was the person who ultimately assented to the terms. (Heidbreder v. Epic Games, Inc., No. 19-348 (E.D.N.C. Feb. 3, 2020)).   

With the flood of Illinois biometric privacy suits lodged against employers in recent months, and multiple biometric privacy suits against social media and other mobile platforms currently pending over the use of photo tagging functions, 2017 has been a busy year in this area.  In a notable circuit court level

For the second time in the past six months, a district court has dismissed a lawsuit alleging procedural and technical violations of the Illinois biometric privacy statute for lack of Article III standing.  In Vigil v. Take-Two Interactive Software, Inc., No. 15-8211 (S.D.N.Y. Jan. 27, 2017), the court dismissed Illinois biometric privacy claims against a videogame maker related to a feature in the NBA 2K videogame series that allows users to scan their faces and create a personalized virtual avatar for in-game play.  In a lengthy opinion, the New York court provided Take-Two with a resounding victory when it ruled that procedural violations of the notice and consent provisions of the Illinois biometric privacy statute are not in-of-themselves sufficient to confer standing.

Biometric technology such as facial recognition, iris scans, or fingerprint authentication is being used and further developed to improve the security of financial and other sensitive transactions.  At the same time, social media sites, mobile apps, videogame developers and others are employing biometrics for other cutting edge uses to improve services.  The current Vigil ruling is particularly important, however, as it may buoy companies that collect biometric data under reasonable notice and usage policies, as they hope that the approval applied in Vigil is affirmed, if appealed, and followed in other jurisdictions.