Parents are suing Epic over Fortnite item shop ‘FOMO’ timers they say are inaccurate and manipulative

First reported by Polygon, two parents in the US are suing Epic Games over limited-time sales of Fortnite skins and cosmetics that they argue aren’t really limited time at all, creating a false sense of “FOMO”—a term actually used in the lawsuit—for Fortnite’s younger players.

Like many in-game cosmetic storefronts, Fortnite will have daily or otherwise limited-time sales with live timers counting down the life of the discount.

The lawsuit alleges that, in many cases, these items “remained available for purchase, often at the same purportedly discounted rate, for many days or even weeks at a time.”

“This was an unlawful scheme,” the suit argues. “Fake sales with made-up expiration times are deceptive and illegal under state statutes proscribing unfair and deceptive trade practices, which prohibit misleading advertisements concerning the reasons for or existence of price reductions and representing that items have characteristics or qualities they do not have.

“Numerous courts have found that fake countdown timers like Epic’s run afoul of these and similar prohibitions.”

The lawsuit cites a €1,125,000 ($1,200,000) fine issued to Epic by the Netherlands over this very issue last year. The Authority for Consumers and Markets (ACM) found that many items with 24-hour countdowns displayed on their listings actually remained at the same price for periods of time well in excess of those 24-hour periods.

Epic, for its part, is attempting to appeal the ACM’s decision, and offered the following statement about the new lawsuit:

“This complaint contains factual errors and does not reflect how Fortnite operates. Last year we removed the countdown timer in the Item Shop and we offer protections against unwanted purchases.

“This includes a hold-to-purchase mechanic, instant purchase cancellations, self service returns for shop purchases and an explicit yes/no choice to save payment information.

“When a player creates an Epic account and indicates they are under 13, they are unable to make real money purchases until a parent provides consent. Once they do, we offer industry leading parental controls including PIN protecting purchases. We will fight these claims.“

The plaintiffs are suing Epic in a San Francisco court, and the next step is for the judge to determine whether or not to allow it to become a class action, broadening the suit to potentially include a large portion of Fortnite’s player base.

We’re starting to see more lawsuits brought against big developers over in-game purchases, as well as stewards of major digital storefronts, most notably the antitrust lawsuit against Valve over Steam, which was upgraded to a class action last year.

At the same time, fending off a class action can sometimes be preferable to “arbitration overload,” an unintended side-effect of the (usually corporate-favoring, consumer-unfriendly) forced arbitration clauses endemic to tech EULAs. Valve itself removed its own arbitration clause in the Steam EULA last year, though this was likely primarily due to it having been ruled “unenforceable.”