Tuesday, September 8, 2026
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Ninth Circuit: Roblox Must Fight Case Over Alleged Child-Safety Promises in Court
Divided Opinion Says Video Game Giant Waived Right to Compel Arbitration by Seeking Merits-Dismissal First
By a MetNews Staff Writer
A divided panel of the Ninth U.S. Circuit Court of Appeals has held that a judge correctly found that Roblox Corporation waived its right to compel arbitration of a father’s claims that the San Mateo-based video-game giant misrepresented child-safety protections in violation of California law.
Thursday’s memorandum opinion, signed by Circuit Judges Kenneth K. Lee and Jennifer Sung, declares that the defendant’s failure to file a motion to compel until after it lost a bid for dismissal of the case on the merits, among other engagements in court, was fatal to its attempt to later seek to enforce an arbitration provision in the governing terms of use. They wrote:
“[A] party cannot ask the district court to dismiss a complaint on the merits, holding in reserve a claimed right to arbitrate that will be exercised only if it does not like the district court’s decision. The district court did not err in finding that Roblox had waived its right to compel arbitration.”
Dissenting Opinion
Circuit Judge Patrick J. Bumatay dissented, pointing to the defendant’s argument that it was prevented from filing its motion earlier due to the plaintiff’s refusal to cooperate with an attempt to determine which version of the terms of use governed the parties’ dispute. He wrote:
“While Roblox knew that [the plaintiff] had signed some arbitration clause, it didn’t know which arbitration clause he agreed to because he refused to provide Roblox his or his daughter’s username. True, Roblox could have asked for discovery on this question as part of a motion to compel arbitration. But no case advises that the failure to seek discovery on arbitration issues constitutes a waiver of the right to arbitrate.”
He added:
“[W]hile Roblox probably could have filed its motion to compel arbitration from the get-go, we have never said that filing a non-jurisdictional motion to dismiss categorically constitutes waiver.”
Putative Class Action
The question arose after multiple parties filed a putative class action complaint against Roblox in state court on October 2, 2023, asserting false advertisement and other claims under California law. After Roblox removed the matter to federal court later that month, California resident Damiel Uhl was added as a plaintiff in an amended pleading.
In the operative complaint, the plaintiffs asserted:
“Roblox has received significant media attention about the risks of children being exposed to harmful content on the platform. For instance, children encounter virtual strip clubs [among other sexual conduct]. Similarly, adult users have groomed, sexted, and otherwise exploited young users.”
They added:
“Despite…warnings to its investors and regulators, Roblox does not warn its users of the risks of criminal and predative activity on its platform. In fact, it does the opposite. Roblox makes numerous misrepresentations about the safety of its platform in order to convince parents that the platform is safe. And in doing so, Roblox has misled parents about how it protects their children from inappropriate content and induced parents into allowing their children to spend parents’ money on the platform.”
Motion to Dismiss
In March 2024, Roblox moved to dismiss the case, arguing that liability is explicitly foreclosed by Section 230 of the Communications Decency Act and the plaintiffs had failed to plead fraud with particularity as required by Federal Rule of Civil Procedure 9(b).
District Court Judge Todd W. Robinson of the Southern District of California granted the request, without prejudice, in July 2024, agreeing that Rule 9(b)’s heightened pleading standards had not been met. He declined to address the §230 defense, saying in a footnote that “the Court believes that the claim-by-claim analysis required under [recent case law] will be better informed by a more robust articulation of Plaintiffs’ causes of action.”
The plaintiffs filed an amended pleading, and, by the time the defendant filed a motion to compel in March 2025 after discovering the governing terms of use, Uhl was the only remaining representative plaintiff named in the lawsuit. On July 9, 2025, Robinson denied Roblox’s request, finding that the company had waived its right to seek arbitration based on its litigation activity in court.
Two Elements
Lee and Sung noted that courts are directed to look for two elements in determining whether to grant a motion to compel arbitration—whether the party seeking the relief knew that it could demand resolution in arbitral proceedings and whether it had intentionally acted in a manner inconsistent with that right. Addressing the first factor, they opined:
“Roblox has known of its right to compel arbitration since before the complaint was filed because it has always included an arbitration provision in its terms of service during the relevant period….Uhl’s complaint alleged the information Roblox needed to know that it had the right to compel arbitration: It alleged that Uhl’s children played Roblox since 2017 and that he spent money on [the platform] ‘on at least a monthly basis’ since then. That is enough.”
Saying that “it is well established” that a conscious decision to seek judgment on the merits is inconsistent with a party’s right to arbitrate its claims, they opined:
“Thus, the paradigmatic act that is inconsistent with a right to arbitrate is ‘when defendants move for dismissal with prejudice on a key merits issue.’…That is exactly what Roblox did. Roblox asked the district court to ‘dismiss…with prejudice’ all of Uhl’s claims on the merits. And only when the court declined…did Roblox change course and move to compel arbitration.”
They continued:
“But there is more. Roblox did not merely move to dismiss on the merits. It also removed the case from state court, litigated a remand motion, and never—during the eleven months it was litigating—sought a stay pending a determination of whether the lawsuit should be in court at all. And it waited almost a year to move to compel….Taken together, Roblox’s actions are inconsistent with exercising a right to arbitrate.”
Bumatay’s View
Bumatay wrote:
“As Justice [Louis] Brandeis has said, it is more important to have the law ‘settled than that it be settled right.’…This is so that parties understand their rights and know if they are going to waive their rights. After all, ‘waiver’ requires an ‘intentional relinquishment or abandonment of a known right.’…Unfortunately, this area of the law is not so settled to conclude that Roblox intentionally relinquished its right to arbitrate.”
Remarking that “we’ve never held that parties must move to compel, and then, if necessary, seek discovery under the Federal Arbitration Act to avoid waiver of an arbitration right,” he said that “[t]he cases cited by the majority,” that deal with the topic of discovery following a motion to compel, “are not enough to give Roblox notice of this newfound waiver rule.” He continued:
“Finding waiver based on the failure to seek discovery might be a good rule going forward, but it’s wrong to apply it for the first time here.”
Addressing the defendant’s litigation activities in court, he reasoned:
“Our caselaw has been much more conditional [on the topic]: ‘although filing a motion to dismiss that does not address the merits of the case is not sufficient to constitute an inconsistent act, seeking a decision on the merits of an issue may satisfy this element.’ While Roblox’s decision to wait to file its motion to compel arbitration should count in favor of waiver, given the novelty of the other bases of waiver, I don’t think it was enough here.”
He added:
“[In the end, all the facts against Roblox sound like ‘forfeiture’ rather than ‘waiver.’…We confuse these two concepts by affirming ‘waiver’ here.”
The case is Uhl v. Roblox Corporation, 25-5057.
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