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Tuesday, July 14, 2020

The Lawstream's take

Nick Rekeita, the lawyer who hosts the Lawstream, analyzes yesterday's hearing:
Okay, here's the skinny. If Patreon does not pay up within 30 days on all 100 of the claims, if they don't pay up in 30 days, they're in default. That means that they lose,  basically, and it doesn't mean that they lose the arbitration action, because they lose this one, but then the backers can compel another one or go to court. In either case, there's a monetary sanction, there's also a cost of arbitration plus attorneys fees, or the backer sanctions. If Patreon doesn't pay up, not only will they then have to go back, and they may have to pay up anyway, well, they will, I mean at some point they'll have to pay up anyway. They'll also end up having to pay the attorneys fees for the backers and that gets devastatingly expensive, again, millions and millions of dollars.

This is massive because if this preliminary injunction fails, look to see all of your Terms of Service updated across the board. Big Tech will be watching this, they absolutely will. Anyone who uses adhesion contracts and has arbitration clauses in it is going to be looking at this and the rules are going to change dramatically. But it also shows that we as consumers do have tools in our toolbox to go ahead and combat them, and those tools are often given to us by big tech companies.You just have to find the right situation.

Personally, I think the injunction should be denied. Why we don't hold these companies to account for their choices is beyond me. Of course Patreon wanted this, they wanted it this way. Now the reason they wanted it this way is because they never for a moment considered that things would go down this way because I think, at their core, Patreon never considered banning creators at the onset.
It looks like it is just going to get even crazier from here. I am informed that Patreon has begun responding to the first independent arbitrations with incoherent rants directed at the JAMS National Arbitration Council. Their argument, such as it was, was explained to me:

“This should not be arbitrated because we know we will lose and we don’t like it and it’s expensive for us.”

At this point, I wouldn't put it past Patreon to sue both JAMS and the State of California for unfairly holding them accountable to their own contracts of adhesion. The whole thing is beginning to look a lot like a Kids in the Hall sketch.

The Quartering has also put in his two cents on the situation, as has GamerGate legend Sargon of Akkad.

The obvious question the LLOE has to consider now is whether the time has arrived to call Patreon on all their idiotic posturing and bring a massive class action lawsuit against them in the Superior Court. I imagine they would suddenly recall why they mandated arbitration in the first place and do a very fast and astonishingly hypocritical 180.

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60 Comments:

Blogger Wayne July 14, 2020 5:46 AM  

Carl Bejamin was live streaming yesterday referencing Cernovitch Twitter feed of the court proceedings. The concept of tortious interference was new to him and he started speculating what would be the outcome of filing a similar action on behalf of his 3k+ previous patreon subscribers. I would suspect lots of former deplatformed Patreon creators are now interested in the LLoE.

Blogger Scuzzaman July 14, 2020 5:49 AM  

This should not be arbitrated because we know we will lose and we don’t like it and it’s expensive for us.

I know these people live in a universe where there's no room for any opinions other than their own, but those look to me like three very good reasons for it to be arbitrated.

Blogger Akulkis July 14, 2020 5:56 AM  

It would be hilarious if it wasn't wasn't so mind-numbingly stupid AND the fact that the more they continue on with this, the less likely the bears are going to see proper compensation for damages (even thought SJW-ified Patreon going out of business is a definite strategic victory).

Blogger Akulkis July 14, 2020 6:25 AM  

>> but those look to me like three very good reasons for it to be arbitrated.

In fact, those are probably the 3 best reasons the actions against them should be allowed to proceed.

Blogger doctrev July 14, 2020 6:31 AM  

Seeing Patreon collapse like Gawker is arguably going to be a better reward for the bears than any amount of compensation they could receive. That's a strategic cultural and political victory that money simply can't buy. And all it took was a competent legal team.

Blogger My 1 millionth internet profile July 14, 2020 6:33 AM  

At this point, I wouldn't put it past Patreon to sue both JAMS and the State of California

I'll bet their lawyers think this is a brilliant idea, and they've already drawn up the necessary papers.

Blogger Sean July 14, 2020 6:58 AM  

This is massive because if this preliminary injunction fails, look to see all of your Terms of Service updated across the board.

One thing I've always been curious about - is it possible for Big Tech to change the ToS to avoid arbitrary altogether? Or is arbitration something written in consumer law and they can't ToS their way out of it.

What is to stop Big Tech from saying you can't lawsuit, class action or launch arbitration action against us in their ToS?

Blogger Shimshon July 14, 2020 7:09 AM  

The LLoE would make a basis for a good sitcom. Instead of the Monster of the Week featured in many Sci-Fi/Fantasy shows, it could feature a Stupid of the Week in some absurd and utterly ridiculous legal setup.

Blogger Kraemer July 14, 2020 7:12 AM  

They have to have some avenue of recourse for illegal actions. Mind you, a lot of arbitrations are also companies going after people who refuse to pay bills

Blogger My 1 millionth internet profile July 14, 2020 7:15 AM  

What is to stop Big Tech from saying you can't lawsuit, class action or launch arbitration action against us in their ToS?

The lawyers. The profession that always has its collective eye on the main chance in not going to allow anyone to have complete legal immunity, at least as far as civil cases are concerned. Legal eagles gotta eat too!

Blogger Silent Draco July 14, 2020 7:20 AM  

>> "saying you can't lawsuit, class action or launch arbitration action against us in their ToS?"

That's akin to claiming sovereign immunity from legal action. Good governments take a dim view of freelance competitors setting up shop. That could get awkward for a corporate entity, which exists only due to a legal charter. IANAL, just thinking of fallout.

Blogger Mr.MantraMan July 14, 2020 7:21 AM  

Probably just a skip and a jump from the dissident right owning the moral and intellectual levels of the consumer protection issues conflict. I think that is a good side to be on versus the corrupt oligarchs of the Left/Democratic party and their RINO/cuck allies.

Blogger James Dixon July 14, 2020 7:31 AM  

> I'll bet their lawyers think this is a brilliant idea, and they've already drawn up the necessary papers.

As long as they get paid. If their payments are ever in doubt they'll suddenly become much more conservative in their filings.

Blogger tdcommenter July 14, 2020 7:40 AM  

Patron lawyers were probably undefeated in the college dork and soy latte debate circuits. Their sophistry, rhetoric, and parents' money did get them through K-12 and 8 years post secondary.

Blogger Damelon Brinn July 14, 2020 7:40 AM  

What is to stop Big Tech from saying you can't lawsuit, class action or launch arbitration action against us in their ToS?

What's to stop employers from saying their employees can't sue over unsafe workplace conditions? What's to stop a restaurant from saying customers can't sue over food poisoning?

If you have a right (or a court thinks you do), you can't necessarily just sign that right away. You can in some areas, but I don't think consumer protection tends to be one of those areas, and it really comes down to what a court says when it's tested.

I wouldn't mind seeing the whole "click here to agree" concept challenged. No one actually reads the ToS these days, and even more no one actually reads it with a legal understanding of what it means. The left half of the bell curve probably couldn't even if they wanted to, and these days, when every online service has one, it's not like you're going to print it out and run it by an attorney. It's a one-sided fig leaf that worked because they somehow convinced users that cyberspace was independent of meat-space and Big Tech got to make all the rules. It doesn't have to be that way.

Blogger James Dixon July 14, 2020 7:49 AM  

> One thing I've always been curious about - is it possible for Big Tech to change the ToS to avoid arbitrary altogether? Or is arbitration something written in consumer law and they can't ToS their way out of it.

Their options are arbitration or lawsuits. Arbitration is usually the less expensive option, but that assumes both parties are acting in good faith. In Patreon's case they've never operated in good faith, and they've now wound up with both.

Blogger Rhino Bear July 14, 2020 7:49 AM  

After speaking with a couple of the noble 72, Patreon bending the knee, apologizing publicly, and reinstating Owen to the platform is worth more than any monetary award. I for one cannot wait to see that happen.

Blogger James Dixon July 14, 2020 7:52 AM  

> Or is arbitration something written in consumer law and they can't ToS their way out of it.

In California I believe it's required by law. Vox could explain better.

> What is to stop Big Tech from saying you can't lawsuit, class action or launch arbitration action against us in their ToS?

The courts aren't bound by their TOS, as several companies have found over the years. They decided whether to hear a case and whether it has merit, not the company.

Blogger Akulkis July 14, 2020 8:06 AM  

>> What is to stop Big Tech from saying you can't lawsuit, class action or launch arbitration action against us in their ToS?

They can say whatever they like -- that doesn't mean you sign away your rights to compensation in the event of harm. Such a clause or clauses would be completely null and void as you are given zero opportunity to settle a dispute, which makes it unconscionable.

Blogger Ominous Cowherd July 14, 2020 8:10 AM  

Sean wrote:What is to stop Big Tech from saying you can't lawsuit, class action or launch arbitration action against us in their ToS?
They can put anything they want in their contracts of adhesion. Getting courts to enforce those terms could be a different matter.

Blogger JACIII July 14, 2020 8:11 AM  

“This should not be arbitrated because we know we will lose and we don’t like it and it’s expensive for us.”

Note: Your personal demons are quite good at getting your ass into trouble, but aren't any help at all when it comes time to figure out the consequences of what the fuckers helped get you into.

Blogger xevious2030 July 14, 2020 8:12 AM  

"What is to stop Big Tech"

Things are not that bad, or corrupt, currently. They have to pick a poison. If Trump had not been here, the answer would likely have been "nothing." Thankfully though, for now, the answer is "because they do not currently have that much control." Example, Southern District of New York (SDNY). The courts were the place in government most prized by the left, as they pretended to both be able to legislate and execute the law. Losing the courts would require the left to shift or rework its bluff.

Blogger BriarRabbit July 14, 2020 8:18 AM  

Oh they CAN. Just like I can carry a sign that says, "Not responsible for damages caused by randomly throwing punches in public." It won't prevent me from being liable for damages caused by my injurious and reckless actions.

Blogger Section 8A July 14, 2020 8:19 AM  

Major League baseball did the same thing in the 70's. "If you sue us, we'll go bankrupt! The Reserve Clause says one year, and it's meant 'forever' as long as anyone can remember! You can't sue us - we're Baseball!".

The arbitrators then had no choice either has MLB had not only written the contract language, their arguments were specious.

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 14, 2020 8:29 AM  

7. Sean July 14, 2020 6:58 AM
What is to stop Big Tech from saying you can't lawsuit, class action or launch arbitration action against us in their ToS?


a contract typically entails duties and responsibilities for BOTH parties in the exchange. and there has to be a remedy if one side refuses to conform to the terms that they both agreed too.

what you're describing is a situation in which Patreon gets to demand money for services but has *no remedy* for the Creators or the Patrons when they are of the opinion that Patreon is not fulfilling their responsibilities.

that's a situation rife with possibility for abuse and practically guarantees that such abuse will happen.

Courts tend to take a very dismal view of entities which attempt such things.

and, of course, the Courts have a self interested bias to view the Law as the Supreme arbitrator in the land, which is another reason they tend to not like entities who declare that they are not subject to ANY jurisdiction of any Court of Law.

that is a very good way to attract a Court's attention.

Blogger Ingot9455 July 14, 2020 8:35 AM  

For a consumer to have no legal redress would be illegal under consumer law for decades.

Blogger Gregory the Tall July 14, 2020 8:50 AM  

PATREON - successfully bringing people together for a common purpose.
Question: Is it completely impossible to file for arbitration from Europe?

Blogger Gettimothy July 14, 2020 8:50 AM  

"less likely the bears are going to see proper compensation for damages (even thought SJW-ified Patreon going out of business is a definite strategic victory"

Be cool if da bears ended up owning Patreon and started funding SSJWSH* using Putin's payment processor.


*Stuff SJW's Hate

Blogger roundeye July 14, 2020 9:07 AM  

The next step is the tech I dustry creating their own JAMS clone that is more friendly. But if someone can prove that they rigged that set of arbitrations, then it is back to class actions.

Blogger roundeye July 14, 2020 9:23 AM  

The next step is the tech industry creating their own JAMS clone that is more friendly. JAMS and the ilk (there are several) tend to be retired judges and they don't like to be told what to think. But if someone can prove that they rigged that set of arbitrations, then it is back to class actions.

Adhesion contracts are a term of art. It means it is a take it or leave it deal. Generally, contracts of adhesion are interpreted against the drafter, ie Patreon. It means the consumers are granted the benefit of any ambiguity.

Blogger Darren July 14, 2020 9:23 AM  

The comments.

The comments are glorious!

Nice to see rational thought being shared on YouTube.

Blogger Jim July 14, 2020 9:23 AM  

Sean wrote:What is to stop Big Tech from saying you can't lawsuit, class action or launch arbitration action against us in their ToS?

Unconscionablity:

"Contractual provisions that indicate gross one-sidedness in favor of the seller include provisions that limit damages against the seller, limit the rights of the purchaser to seek court relief against the seller, or disclaim a Warranty. State and federal Consumer Protection and Consumer Credit laws were enacted to prevent many of these unconscionable contract provisions from being included in sales contracts."

https://legal-dictionary.thefreedictionary.com/unconscionable

Blogger Darren July 14, 2020 9:30 AM  

"The whole thing is beginning to look a lot like a Kids in the Hall sketch."

Ankle-biting Reddit is Kevin MacDonald in this sketch. "They won the battle. Not the war."

Blogger jkmack July 14, 2020 9:41 AM  

Fred just Call Owen and talk settlement. All the pain will go away and Patreon might even benefit from the changes.

Blogger Darren July 14, 2020 9:42 AM  

https://twitter.com/Cernovich/status/1282716063243747328
For posterity: https://archive.fo/hHw1Q

The Deplatformed Party is waking up.

Blogger Robert Browning July 14, 2020 10:19 AM  

Instead of alt-right or white nationalist just call yourself a Christian and let them attack and see what happens. Christ is power and he protects all who invoke his name.

Blogger Darren July 14, 2020 10:23 AM  

"Sometimes you have to let go of what you want, for the, for the greater good"
-Bob Newhart as "Judson", The Librarian (second movie)

Blogger VD July 14, 2020 10:34 AM  

The next step is the tech industry creating their own JAMS clone that is more friendly.

They're already trying that. Something called CLR. It's not holding up very well.

Blogger Ray - SoCal July 14, 2020 10:39 AM  

I hope Vox is interviewed by Lawstream.

Ca law strikes again!

My guess was the recent Ca law on arbitration was passed to hurt gig companies, especially Lyft and Uber. Somebody pushed through the law.

Blogger FUBARwest July 14, 2020 11:07 AM  

Seconded!

Blogger xevious2030 July 14, 2020 11:35 AM  

"The Deplatformed Party is waking up."

The tip of the spear opens the breach. What has been missing have been vehicles that weren't under remote control by the enemy. Typically, you try to jump in a tank to do your part, and the enemy spins it in circles, or runs it off a cliff, making potential patriots "gun-shy." The rest of us now have a means, and thusly, hope. When a cautious sort sees a tank smash through enemy lines and obliterate a logistics depot run by the enemy, it inspires. If the smashers have taken care of several moves ahead. The "if" being obvious and concluded.

Blogger Gallant July 14, 2020 12:21 PM  

What this has done is imposed a cost where there wasn't previously one. A corp getting SJW pressure internal or external had a simple choice, to go SJW, and not lose a dollar or an hour's sleep over the matter of deplatforming.

Making them have to consider a cost for attacking the right has value. I liked the lawstream last paragraph, that their legal structure was pretty solid but was not devised for kicking off creators. Maybe they'd have to consider the cost now not at the point of kicking off 1 guy; but in having to integrally trade raw legal protection for the ability to do SJW policing.

Blogger SirHamster July 14, 2020 12:39 PM  

Sean wrote:One thing I've always been curious about - is it possible for Big Tech to change the ToS to avoid arbitrary altogether? Or is arbitration something written in consumer law and they can't ToS their way out of it.
It is not possible to write such a TOS.

Arbitration was not pushed by consumer laws. Big Tech pushed arbitration as a way to avoid getting sued in courts in class actions.

Everyone has a right to resolve disputes through the legal system, which is a part of the government. The legal system accepts arbitration instead of the courts in certain situations, but courts get the final say.

In the Patreon lawsuit, the SF court has the power to stop the arbitration and make judgments on the dispute. They won't, but they could.

What is to stop Big Tech from saying you can't lawsuit, class action or launch arbitration action against us in their ToS?
A TOS is a legal contract that depends on the legal system enforcing it.

"No lawsuits or arbitration" is denying the legal system any power over the contractual relationship.

The legal system won't enforce that. A contract is only as good as the enforcement. If the other side won't voluntarily submit, and the legal system won't force them to submit, then the contract means nothing.

That's why a good business makes their customers happy. Then contract enforcement becomes a non-issue, as the customer throws money at the business to get more of what they want.

Blogger Nate73 July 14, 2020 12:40 PM  

>because I think, at their core, Patreon never considered banning creators at the onset.

An interesting proposition if true. Maybe from the start the founders of Patreon were being systematically conned into it as well. Don't worry guys, nobody would ever oppose getting rid of hate speech or violence so this clause is fine.

Blogger VD July 14, 2020 1:06 PM  

In the Patreon lawsuit, the SF court has the power to stop the arbitration and make judgments on the dispute. They won't, but they could.

That's not the case. The courts simply don't have the authority. Wait for the judge's final ruling.

Blogger Ingot9455 July 14, 2020 1:48 PM  

@8 This was the plot of many 'Animaniacs' episodes. Yakko, Wakko, and Dot would come across someone being stupid and wrong, then turn to the camera and say, "I see we've found our 'special friend' for today!"

Blogger Gallant July 14, 2020 2:34 PM  

Whenever I google search on this topic I find 'news' and blog type articles portraying the creation of the lawsuit against the bears as some sort of slam-dunk backfire, that sure have aged badly.

I don't know if they're as good as skulls; but could be amusing to collect them - or just glance through them and the legal expertise in their comment sections.

Blogger SirHamster July 14, 2020 2:58 PM  

VD wrote:That's not the case. The courts simply don't have the authority. Wait for the judge's final ruling.
I'll read the ruling when it's available.

"stop the arbitration" may be too imprecise.

AFAIK, arbitration results are submitted to the court for enforcement, so the court has the power to determine if an arbitration result is actually binding. But they wouldn't go to an arbitration and try to stop it from finishing.

Blogger Darren July 14, 2020 3:39 PM  

Already Cernovich in his website article seemed to strongly imply a call to arms "pay attention, this is bigger than you realize" alarm to any deplatformed creators right of Stalin :-)

And Styx and The Quartering talking about it, this is terrific -- both have big audiences of angry men who want to do actually something to fight back (those who have just been looking for a reason to not go full Black Pill).

Blogger Darren July 14, 2020 3:40 PM  

"Who builds a business withoyt first considering the cost?"

Enemies of Jesus Christ, that's who, apparently.

Blogger Scott July 14, 2020 4:04 PM  

As Nicknsaod in his video, the way theTOS was written, the Arbitration must be filed in California State Court, but that is only $250 US, leaving Patreon responsible for all other fees under California Consumer Protection Law. That is kind of the brilliance of the human wave, rather than class action tactic.

Blogger Gregory the Tall July 14, 2020 4:19 PM  

SJWs in corporations, inventors of the best and fastest get poor schemes known in capitalist economies.

Blogger tbourdon July 14, 2020 4:24 PM  

I'm no business Guru but it seems to me when a business starts suing their customers the business is more or less done.

Blogger VD July 14, 2020 4:41 PM  

As Nicknsaod in his video, the way theTOS was written, the Arbitration must be filed in California State Court

That's not correct. FFS, doesn't anyone READ anything?

You don't file arbitrations in state court. You file them with the contractually-specified arbitration system, usually AAA or JAMS.

Blogger Zeroh Tollrants July 14, 2020 5:14 PM  

Spoiler alert-people have never actually read TOS. That's why it was.a common stand-up joke all the way back in the 80s. For one thing,the overwhelming majority of people could read the entire TOS on any product word for word, and still not have a clue what it meant.
Over 90% of black people have never read a single book from cover to cover. Do you think they have a clue what a TOS is even?!?

They don't. Just ask some rando black on social media to explain TOS to you.
How are you holding these people accountable to TOS?
People need a law degree to understand service agreements. I assure you they have no clue what they are signing at the Rent a Center.

Blogger Gregory the Tall July 14, 2020 5:45 PM  

The new TOS sound very dangerous for Patreon as well because they are taking away the consumer's right to file a complaint because of Patreon interfering in their contractual relation with a creator.

Blogger JamesB.BKK July 14, 2020 7:19 PM  

The lawyers.

Moreso the "Romans." Especially in a mixed civil lawtard and common law state such as California that has been taken over by cheating progressives.

Blogger JamesB.BKK July 14, 2020 7:23 PM  

An invalidated contract of adhesion can land a defendant back in any two bit burg able to establish jurisdiction across the land for some home cookin' and jury trials.

Blogger JamesB.BKK July 14, 2020 7:33 PM  

Employees cannot sue their employers over unsafe work conditions. In general for the several states workmen's compensation schemes bar that, with extremely narrow judge made exceptions based on extreme conduct or omission. OSHA provides a federal shield to employers in the guise of worker protection. The feds have provided some causes of action for the ever-aggrieved but those tend toward making work places less safe what with all the incompetent folks around messing stuff up and when let into control areas sometimes crashing things together and into the ground.

Blogger Silly but True July 14, 2020 10:02 PM  

Asking for a friend, would the Bears settle for ownership of Patreon jointly in the hands of former
Hollywood actor now comedian and political live-streamer, and a comic book industry professional?

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