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Tuesday, July 07, 2020

A tale of two filings

This complete lack of a response to one of the core elements of the dispute pretty much tells you everything you need to know about how next week's hearing is likely to go.
  • JAMS issued a second letter on March 12, 2020, stating that JAMS would not issue a blanket stay for numerous separate arbitrations.  Specifically, the March 12 JAMS Letter stated: “Patreon’s Terms of Use state that arbitrations ‘may only take place on an individual basis’ and no ‘grouping of parties is allowed.’  (Terms of Use, pages 4 – 5). 
  • In fact, this matter is subject to dismissal under even the Purported Amendment.  The dispute resolution clause expressly states that “[n]o class arbitrations or other grouping of parties is allowed.”  Patreon, here, has made a grouping of Defendants.  By its own terms, it is not entitled to file this suit and seek the relief it requests.  Patreon is not entitled to an injunction that covers 72 defendants as a group—just as Patreon chose to deny Defendants the ability to join as a group and engage in collective action, it cannot now be allowed to obtain an injunction in violation of that term.
  • - DEFENDANTS’ OPPOSITION TO MOTION FOR ISSUANCE OF PRELIMINARY INJUNCTION
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- PLAINTIFF PATREON, INC.’S REPLY IN SUPPORT OF REQUEST FOR PRELIMINARY INJUNCTION [Filed concurrently with Declarations of Colin Sullivan and Tyler M. Layton in Support of Reply]

The irony is that Patreon is now complaining about the way a number of the Bears being sued have put Patreon on notice that they will find themselves facing more arbitrations due to Patreon's breach of contract involved in bringing the group lawsuit. Their Head of Legal cried about it in their most recent filing with a classic "this just proves" argument that would almost make one mistake him for a bowtie-wearing National Review conservative.
On July 2, 2020, I received emails from 15 Defendants, informing me that unless Patreon withdraws this lawsuit, they intend to commence new arbitrations before JAMS claiming that Patreon’s filing of this lawsuit, to enforce the amended Terms of Use, is a breach of the Terms of Use.  Given that Defendants are already challenging the amended Terms of Use in their already pending arbitrations, this confirms that Defendants’ actual goal is to multiply the number of duplicative proceedings to maximize costs to Patreon, in the hopes they can eventually exceed Patreon’s ability to pay.  That outcome would be an irreparable harm.
- Declaration of Colin Sullivan in Support of Reply
It doesn't prove anything of the sort. To the contrary, informing Patreon that new arbitrations will be commenced if the breach of contract isn't cured is exactly what Patreon's Terms of Use require the Bears to do in light of Patreon's obvious breach of the contract, as spelled out in the very emails about which he is complaining.
I am sending you this notice pursuant to the procedures stipulated in Patreon's Terms of Use to inform Pateron, Inc. that the filing of case CGC-20-584586 against myself and 71 other individuals constitutes a blatant breach of its own Terms, which, as you know, clearly prohibit the grouping of parties.

No class arbitrations or other grouping of parties is allowed. By agreeing to these terms you are waiving your right to trial by jury or to participate in a class action or representative proceeding; we are also waiving these rights.
Patreon very clearly waived its rights to participate in the very lawsuit it filed. They not only have no right to an emergency injunction, they have no right to be in that courtroom for those purposes at all. So, they should hardly be surprised when the people they are suing call them out for that.

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64 Comments:

Blogger Guy Incognito July 07, 2020 1:06 PM  

Oh what a tangled web they've woven...

Blogger jkmack July 07, 2020 1:19 PM  

In a just world, dozens of magazines would write articles ridiculing Patreon, and applauding the 72 and all others involved for holding a corporation to the letter of their abusive user agreements.

I will settle for this though, at least someone is finally fighting this ridiculous farce of rule by TOS.

Blogger Dole July 07, 2020 1:29 PM  

This is better than fireworks.

Blogger Krymneth July 07, 2020 1:42 PM  

What a glorious legal theory! If we are held to account for our violation of the law, it will constitute substantive damages, and since we claim that is the real goal is to create those damages, we should not be held to account because of the motivations of people trying to hold us to account.

If that gets reified into law that's a hole any company could drive a fleet of trucks through.

Blogger VFM Bear July 07, 2020 1:50 PM  

Patreon's next filing will be the one-hour version of Anchor Bear's 'How Dare You'.

Blogger NateM July 07, 2020 1:59 PM  

Vox, any comment on your being named in the court documents?

https://preview.redd.it/2xvpzrutrg951.jpg?width=959&format=pjpg&auto=webp&s=06ecd813b24472f7b67b4ce2108401acc91703df

Blogger Mumbe July 07, 2020 2:03 PM  

They shoulda paid for the good lawyers to review their terms of service. Hope the judge makes those idiots pay.

Blogger Damelon Brinn July 07, 2020 2:05 PM  

"How dare the rabble try to beat a corporation by making the process so expensive that we have to give in! That's our move!"

Blogger tbourdon July 07, 2020 2:20 PM  

I hope this attack vector significantly hinders Patreon's ability to do business moving forward and serves notice to board rooms throughout Silicon Valley that cow-towing to an overly vocal and childish minority at the expense of normal folks will not end well.

Hats off to the Legal Legion and the Bears for being the tip of the spear on this campaign.

Blogger Revelation Means Hope July 07, 2020 2:53 PM  

The level of stupidity is jaw dropping.

Blogger Pope Cleophus I July 07, 2020 2:55 PM  

This is reason number 1 why you hire good lawyers, listen to their advice and act appropriately. It is always a matter about what you can do under the circumstances of the legal box that you are currently confined in. There seems to be a mentality among some in the legal profession that if we file a suit against a peon, he will fold. That tactic might work with Joe Six Pack in a one-off model but doesn't work against a pissed off group of motivated people who are playing by the rules.

Blogger jijijeac July 07, 2020 2:57 PM  

well congrats to owen on taking on such an internet giant in a court of law. hope he wins and makes some $$$$

Blogger Mauldication Bear July 07, 2020 3:00 PM  

I smiled while reading every word.

Blogger knight who said ni July 07, 2020 3:11 PM  

Patreon did this to themselves...if they had just done nothing &not deplatformed eople they would be ok

Blogger pyrrhus July 07, 2020 3:27 PM  

If this case isn't dismissed, the judge should be carefully investigated....

Blogger CF Neal July 07, 2020 3:50 PM  

Lawyers -- LIARS.

They are the lowest of the pond scum "professions".

May God never again bring me within their influence.

Blogger VFM #0168 July 07, 2020 4:14 PM  

All that edumacation and this is the best their lawyers can muster? It would be stunning if I didn't know so many lawyers that can't make a coherent argument.

Blogger Rex Leroy King July 07, 2020 4:19 PM  

Krymneth wrote:What a glorious legal theory! If we are held to account for our violation of the law, it will constitute substantive damages, and since we claim that is the real goal is to create those damages, we should not be held to account because of the motivations of people trying to hold us to account.



It's the same legal theory behind denying Trump's authority to end DACA.

Blogger Snidely Whiplash July 07, 2020 4:36 PM  

"We are weak. Do not harm us!"

Blogger Snidely Whiplash July 07, 2020 4:38 PM  

VFM #0168 wrote:All that edumacation and this is the best their lawyers can muster?
They did not expect to win this lawsuit. No lawyer could possibly have expected to win this lawsuit. What they expected was to intimidate the defendants into dropping their arbitration claims.
Very often, in court cases, "the process is the punishment."

Blogger Jack Ward July 07, 2020 5:19 PM  

Reading all this I find myself in a state of cozy, warm comfort. Of course, some of that feeling may be due to the two or more ounces of Knob Creek consumed while reading all this....
My appreciation to Owen and crew for some excellent work. And, of course, to Patreon for being stupid enough to make Owen's job so doable.

Blogger VD July 07, 2020 5:28 PM  

Vox, any comment on your being named in the court documents?

I don't even have a Patreon account. They must be desperate indeed if they're trying to bring a well-known consumer advocate such as myself into their narrative.

Blogger Silent Draco July 07, 2020 5:49 PM  

Never get your law degree from ACME Co. Read the fine print: "Not effective on Bears or ELOE."

Blogger 7916 July 07, 2020 7:16 PM  

Just saw that captain capitalism moved over to subscribestar from patreon due to the BLM virtue signaling stuff. I think the revenue projections for Patreon in the third and fourth quarters need to be revised downward another 10-20%.

Blogger Nihil Dicit July 07, 2020 7:43 PM  

All that edumacation and this is the best their lawyers can muster?

As Owen alluded to in his interview, this is basically the legal equivalent of the stockerbrokers' favorite "strategy" of churn: plenty of fee-generating activity with no possibility or even desire to achieve anything of value for their clients.

The lawyers will keep throwing out half-arsed ideas until the checks start bouncing, then it's sayonara suckers.

Blogger furor kek tonicus ( +24 children have been shot in Chicago this year by black gang bangers. Num of children shot by Cops? 0 ) July 07, 2020 7:46 PM  

the only thing Vox is guilty of conspiring for is the procurement of skulls for his throne.

Blogger Seeingsights July 07, 2020 7:58 PM  

If anyone wonders why there are lawyer jokes, and why people dislike lawyers, read Declaration of Colin Sullivan in Support of Reply.

Blogger Troushers July 07, 2020 8:20 PM  

Ryan Dawson was recently kicked off Patreon for "activity in a linked social media account". The thing is, he doesn't have any linked social media accounts.

From his videos,it seems Patreon took July payments from his subscribers, but didn't give him July's money.

They are a shady lot.

Blogger rikjames.313 July 07, 2020 8:30 PM  

Seeingsights wrote:If anyone wonders why there are lawyer jokes, and why people dislike lawyers, read Declaration of Colin Sullivan in Support of Reply. Lawyers make arguments in favor of their clients positions. Some arguments work better than others. But budget and long term goals often enter into the arguments.

Vox thinks he found weak point in the TOS contract to hammer the bad people with. He may have, he is smarter than I am. But as long as the other side has money for legal fees, they also have arguments.

Blogger Beau July 07, 2020 8:40 PM  

OT

Heavenly Father,

Thank you for the coming revival, the scouring of sin, true healing, and deep repentance of our nation, the return of our hearts to you. Thank you Lord Jesus.

Blogger Snidely Whiplash July 07, 2020 8:46 PM  

rikjames.313 wrote:But as long as the other side has money for legal fees, they also have arguments.
Because, unlike most countries, the penalty for filing a lawsuit that is clearly frivolous or clearly intended as harassment is ... nothing. So long as you can achieve any kind of advantage in this world at no risk, for the cost of filing fees, why not?

Blogger SirHamster July 07, 2020 8:53 PM  

In their last filing, Patreon argues that ...

- Logging into and not deleting your account is express agreement to Patreon's unilateral TOS change ...
- Where the unilateral TOS change has no material change or adverse effect on users ...
- But the TOS change totes bans arbitration, unlike the old TOS ...

I am very interested to see how the judge rules on this.

Blogger Sillon July 07, 2020 8:59 PM  

knight who said ni wrote:Patreon did this to themselves...if they had just done nothing &not deplatformed eople they would be ok

But muh virtue signalling and dodging hypothetical bullets from the mob.

Blogger Ransom Smith July 07, 2020 9:18 PM  

Lawyers make arguments in favor of their clients positions. Some arguments work better than others.
Colin Sullivan went to McGeorge school of Law. A bottom 25% law school.

Blogger JamesB.BKK July 07, 2020 9:28 PM  

if they had just done nothing &not deplatformed eople they would be ok

As I understand it, that remains all those nitwits have to do. Plus spend some borrowed wine and Maserati money over at the JAMS. Claiming that having to pay consumer complaint costs as required by one's home state laws constitutes irreparable harm ought to be sanctionable.

Blogger ar10308 July 07, 2020 9:46 PM  

Not sure if this has been mentioned in another thread or not, but it looks like St.Efan has been banned from Twitter.

Just goes to show you what happens when you don't fight back and don't signal that you are a hard out.

Blogger Unknownsailor July 07, 2020 9:53 PM  

OT

Stefan Molyneux just had his Twitter account suspended.

You going to fight yet, Stefan, or just take it like you usually do?

Blogger RC July 07, 2020 10:10 PM  

Amen Beau

Blogger Silly but True July 08, 2020 12:03 AM  

Just please remember to make the rubble bounce, Owen.

Blogger Bernard Korzeniewicz July 08, 2020 12:18 AM  

Amen.

Blogger JamesB.BKK July 08, 2020 12:48 AM  

Because, unlike most countries,

We are talking about California here, but most states and the Feds at least have written standards about sanctionable conduct and the penalties. The test as they say is in the breach however. A survey of the state of litigation throughout the several states and federal districts would show that upon testing, there has been near total failure. More sanctions and impeachments might help but we're pretty far gone. It doesn't help that huge firms which produce the judges and judges' potential future places of employ send out their fledglings to do "pro bono" for unappreciative non-producers and huge tax exempt foundations sponsored by the richest control freaks out there.

Blogger JamesB.BKK July 08, 2020 12:51 AM  

Colin Sullivan went to McGeorge school of Law. A bottom 25% law school.

Maybe so, but that's elite-istry, sir.

Blogger JamesB.BKK July 08, 2020 12:55 AM  

Most lawyers just need to (1) be reasonably on time for meetings with the ADA or of the permit commission; (2) not use or borrow from client funds; and (3) not bang the clients. The disciplinary boards would be outta work I tell ya.

Blogger Harambe July 08, 2020 3:43 AM  

Patreon cries out in pain even as it strikes you

Blogger Paul M July 08, 2020 4:01 AM  

I am very surprised that the right to a trial by jury can be waived. Surely a mere commercial agreement cannot supersede the constitution of the USA.

Blogger boogeyman July 08, 2020 4:43 AM  

A long, slow death of an unrepentant enemy who attacked you for no other reason but malice is a pleasure. The gnashing of teeth, the frustrated thrashing about, the nonsensical arguments that sound more and more like the howling of the angry damned. Music I tell's ya, sweet, sweet music.

Here's to hoping the same thing ends up happening to Youtube, Facebook, and Google. Burn it all to the ground.

Blogger Akulkis July 08, 2020 5:31 AM  

>> I am very surprised that the right to a trial by jury can be waived. Surely a mere commercial agreement cannot supersede the constitution of the USA.

In criminal cases, the defendant may waive the right to a jury trial (for whatever reason -- usually a strategic error, because in a criminal case, if there's a jury, the prosecutor then has to absolutely convince 6 or 12 people, rather than just one).

But apparently, in some or all jurisdictions, in civil cases, the plaintiff can DEMAND a jury, even if the defendant wants a bench trial. I suspect that in a civil case, the plaintiff isn't a state actor, and thus has a right to have the case judged by the community as opposed to hanging everything on the trust that the judge isn't corrupt.

Blogger Paulito July 08, 2020 6:05 AM  

@45 Entering into a contract is not against the Constitution. You are allowed to give all the rights away that you want. The key is that you choose to do so.

Blogger Gregory the Tall July 08, 2020 8:04 AM  

@rikjames:
You wrote Vox thinks he found weak point in the TOS contract to hammer the bad people with. He may have, he is smarter than I am. But as long as the other side has money for legal fees, they also have arguments.
Please man up and think for yourself. Even someone not very smart who has read and heard what Vox and Owen said about the legal situation should find it easy to come to the conclusion that they are right about the weak points in the TOS. Therefore the next time write: Vox found... instead of Vox thinks he found... and He has... instead of He may have....

Blogger Damelon Brinn July 08, 2020 8:08 AM  

Entering into a contract is not against the Constitution. You are allowed to give all the rights away that you want.

Yes, that's why I can hire people and legally pay them to work 16 straight hours a day for $1/hour in a factory without any fire exits, as long as they freely choose to enter into that contract.

You can argue that it's not the Constitution itself that bestows rights like a minimum wage, I guess, but that just shows how irrelevant the Constitution has been for a long time. Back here in reality, the only enforceable parts of a contract are the ones a judge agrees with.

Blogger Ransom Smith July 08, 2020 8:29 AM  

Maybe so, but that's elite-istry, sir.
That's the point genius.
To humiliate them for the lack of credentials they hold dear.

Blogger Snidely Whiplash July 08, 2020 9:54 AM  

Damelon Brinn wrote:Back here in reality, the only enforceable parts of a contract are the ones a judge agrees with.
The English Common Law is an expression of Anglo-Saxon culture. The idea that you are free to exploit people so long as they agree to be exploited is contrary to Common Law, as it is contrary to both Anglo-Saxon culture, and the Norman concept of Noblesse oblige.
The Constitution is an attempt to graft foreign principles to the Common Law.
The Libertarian "Consent is all" doctrine is not part of our culture. It was imported from (((our ancient friends))).

Blogger VD July 08, 2020 10:12 AM  

Vox thinks he found weak point in the TOS contract to hammer the bad people with. He may have, he is smarter than I am. But as long as the other side has money for legal fees, they also have arguments.

On what planet do you think I'm not aware of that? Do you seriously not grasp that this is an integral part of the advantage consumers possess in these circumstances? The only companies that can afford to force consumers into individual arbitrations are a) Apple, b) Google, and c) Facebook.

And yet they don't, because they're smarter than that.

Blogger Akulkis July 08, 2020 10:13 AM  

>> Therefore the next time write: Vox found... instead of Vox thinks he found... and He has... instead of He may have....

You're not going to break a man of habits formed by his profession (paid for by the costs of when he had not yet learned those habits).

rikjames.313 is a lawyer. And lawyers rarely speak in absolutes (part of why they hate Trump;s communication style with his gratuitous use of superlatives). They can witness a man commit cold-blooded murder, and will refer to that man as "alleged killer."

Blogger JamesB.BKK July 08, 2020 10:50 AM  

That's the point genius.

Many thanks for that nice compliment.

Blogger Paulito July 08, 2020 11:05 AM  

@Damelon That certain exceptions to the rule (limited ones, at that) have been codified does not invalidate the rule. You absolutely can waive your own rights voluntarily. Everyone who talks to the police does that, for just one example.

Blogger Kraemer July 08, 2020 1:05 PM  

Does the legal profession have a disproportionate gamma infestation? It's one of the few jobs where "well, ackchuallyyy" is socially acceptable, and the money can be used to attract women that would otherwise look for a non-gamma

Blogger rikjames.313 July 08, 2020 1:23 PM  

Kraemer wrote:Does the legal profession have a disproportionate gamma infestation? It's one of the few jobs where "well, ackchuallyyy" is socially acceptable, and the money can be used to attract women that would otherwise look for a non-gamma

A fair number of fake alpha and a small number of (but way too many) wanna be Weinsteins.

The 'well, actually' can be critical in cases, so it gets rewarded and is common.

But a lot of public/hearing/depo behavior is posturing for the clients and other side, too.

Blogger Ominous Cowherd July 08, 2020 1:43 PM  

Damelon Brinn wrote:Back here in reality, the only enforceable parts of a contract are the ones a judge agrees with.
You are not required to assert your rights. You can even contract them away. If you do, there is a very real chance that the contract will not be enforceable.

Blogger OneWingedShark July 08, 2020 2:30 PM  

Paul M wrote:I am very surprised that the right to a trial by jury can be waived. Surely a mere commercial agreement cannot supersede the constitution of the USA.
The constitution guarantees the right, but nothing in the Constitution requires them to avail themselves of that right. As I understand, there are big offenders though: Tax- and Family-Courts just matter-of-course / SOP flat-out deny juries.

Kraemer wrote:Does the legal profession have a disproportionate gamma infestation? It's one of the few jobs where "well, ackchuallyyy" is socially acceptable
Perhaps, but I think that's more due to being taught pilpul in the law-schools, rather than a coherent model of legal reasoning.

Snidely Whiplash wrote:Damelon Brinn wrote:Back here in reality, the only enforceable parts of a contract are the ones a judge agrees with.
The English Common Law is an expression of Anglo-Saxon culture. The idea that you are free to exploit people so long as they agree to be exploited is contrary to Common Law, as it is contrary to both Anglo-Saxon culture, and the Norman concept of Noblesse oblige.
The Constitution is an attempt to graft foreign principles to the Common Law.
The Libertarian "Consent is all" doctrine is not part of our culture. It was imported from (((our ancient friends))).

As I understand it the Constitution was made to codify not what is incumbent on the people, but on the government. Also, a lot of what people ascribe to the purview of the Constitution/federal-government really isn't in the Constitution — a good example is a State establishing blasphemy laws: nothing in the Constitution prohibits this, but many will cry that it violates the First amendment. — The First Amendment is specifically and explicitly applicable only to Congress, as it states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." To apply this against the States/Counties/etc as the Judiciary claims the 14th does you would have to change the first word, but nothing in the 14th (or rest of the Constitution) allows the Judiciary to do this.

Blogger MrNiceguy July 08, 2020 6:53 PM  

The constitutional right refers to criminal trials. This is a civil matter.

Blogger JamesB.BKK July 09, 2020 1:23 AM  

The constitution was turned on its head, by Abraham Lincoln and his financiers and other backers.

Blogger rikjames.313 July 09, 2020 6:21 AM  

Guys, I could do a long article and it still wouldn't make sense. I get that law has rules that seem changing and arbitrary--they are.

The federal right to trial by jury in the constitution is very limited, but it was real in the few cases it applied to. We also used to have a legal thing called a contract of adhesion (if there are two heating oil supply companies in town they both can't impose unfair contract terms on the little guy). We used to spend a lot of time trying to parse it out and it made contracts more fair.

But then god's chosen investors and their c-suite ivy league clique decided they really liked the idea of throwing their ordinarily powerless employees and customers out of court and into a one sided 'arbitration' where the person making the decision was dependent on the corporation for selecting them over and over so they got paid, and where discovery was extremely limited so the corporations could keep their secrets.

Federal judges loved it. Less work for them, and it helped their frat brothers/summer neighbors in the Hamptons. At first state courts resisted, because unlike federal judges, many state court judges are not ivy league, nor strictly from the top 7 law firms. And the federal judges beat them down.

There are many areas where arbitration is great. Quickly settling disputes between corporations, taking care of minor disputes quickly... However, it is used a lot to screw the little guy and keep him away from having a fair hearing. If Vox's plan works than it would be a good thing. I hope it does

Blogger Unknown August 09, 2020 8:55 AM  

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