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Wednesday, February 12, 2020

The lawfare revolution grows

Mike Cernovich explains the legal mire into which Patreon and other thought policing platforms have plunged headlong:
Patreon has lost several high profile creators including Sam Harris, Dave Rubin, and Jordan Peterson due to Patreon’s decision to begin censoring creators for ideological reasons.

The belief is that Patreon can ban anyone they want to. Is this true under California law?

“Private companies can do whatever they want,” is an old canard repeated by people who aren’t lawyers or aren’t very good lawyers. But a new legal remedy is available under California’s arbitration law, especially with the adoption of SB-707.

There’s an economic relationship between Creators and their Backers. Patreon, by banning a Creator, disrupts the economic relationship between Creator and Backer. In legal terms this is called tortious interference with a business relationship.

Backers can demand to have the disruption of this relationship sent to arbitration.

Patreon, under California law, must pay the arbitration fees in advance. These fees can be upward of $10,000 per case. If 500 backers demanded arbitration, Patreon would need to put up five million dollars in advance in filing fees alone. Legal fees will ramp those fees up by a factor of ten.

And judges are enforcing the law strictly.
Read the whole thing. The situation he's describing doesn't merely apply to Patreon, it applies to every tech company that has a business that depends upon matching two parties together without taking responsibility for the performance of either party.

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67 Comments:

Blogger Wraithburn February 12, 2020 8:58 AM  

"matching two parties together without taking responsibility"... Does this mean thots can sue Tinder if they are banned for sex work?

Blogger tuberman February 12, 2020 9:25 AM  

This is why placing further Right "constitutional judges" into office is important. "Have their cake and eat it too" corrupt tech companies can only get by without paying the price if activist judges are in place to help them, and these cannot be overturned. These corrupt tech companies are way out there on a ledge and legally vulnerable. This is getting obvious.

Blogger tublecane February 12, 2020 9:37 AM  

Harris, Rubin, Jellybutter Peanut...hey! Isn't that a good chunk of the vaunted Intellectual Dark Web? Or has that fiction ceased to be told already? Don't tell me Benji has been affected!

@1- Depends what kind of "sex work," I suppose. I wouldn't assume a platform has to aid in furtherance of crime.

Not long ago sex work sites and services (ads, reviews, forums, "verification") were being curtailed. Haven't checked that out in a while.

Blogger James Dixon February 12, 2020 9:42 AM  

> The situation he's describing doesn't merely apply to Patreon, it applies to every tech company...

At least every tech company located in California that imposes and arbitration clause. That's the majority of them.

Blogger Tokyo2020 Bear February 12, 2020 9:45 AM  

Vox Day, thank you for the last sentence in this post. It really makes the concept crystal clear. It is a real joy to read clear, succinct writing. The sentence in question: "The situation he's describing doesn't merely apply to Patreon, it applies to every tech company that has a business that depends upon matching two parties together without taking responsibility for the performance of either party." I am glad to hear the courts are enforcing the California law.

Blogger LR27 February 12, 2020 9:46 AM  

The gravy thickens

Blogger Timitz February 12, 2020 9:47 AM  

Only if they also report their income and pay their taxes.

Blogger Azure Amaranthine February 12, 2020 9:47 AM  

Do the two parties matched need to have a contract or agreement directly with each other?

Blogger Azure Amaranthine February 12, 2020 9:50 AM  

'Cause if an indirect agreement or contract through the platform works, basically every single thought policing company in the USA is going to resound with weeping and gnashing of teeth. Customer-to-advertiser indirect agreement through platform. Oh baby.

Blogger Tars Tarkas February 12, 2020 9:50 AM  

I've been told by a couple of lawyers, one of whom specializes in consumer protection (mostly lemon law), that arbitrators can do pretty much anything they want. That they are not bound by the law or procedure or anything else courts and judges are bound to and that getting an arbitration decision overturned is near impossible.
Is that true?

Blogger tublecane February 12, 2020 9:58 AM  

@10- Can attest that is what "arbitrary" means in the dictionary.

Otherwise, I wouldn't know.

Blogger AndyT February 12, 2020 9:59 AM  

This analysis is close to really good that tech companies have done is that in an effort to prevent class action lawsuits, which they view as dangerous, they have created the ability for a random person whom they don't make much or any money from to force them to incur large expenses, disproportionately falling on the company.

If I want to sue a business partner or vendor of mine, I have to either do it myself, or retain counsel to do so and then incur filing fees. The bar for a Federal lawsuit is probably something like a minimum of $2k between very barebones pleading and filing fees. And for State court it's pretty similar or higher. That's cost I have to bear.

These idiot tech companies in an effort to prevent class actions have simply shifted that burden onto themselves without thinking it through. That's DoorDashes fundamental problem. In the race to prevent class actions, they have accidentally put themselves on the hook for massive upfront costs.

Lots of other tech companies had this problem. The solution isn't to try to shift the cost around, it's simply to drop binding arbitration demands until the other party is a big enough fish to worry about. So basic entry level users will get a terms of service that doesn't expose the company to large up front fees. Then after they become valuable enough to potentially pay some legal fees, they get the arbitration clause.

The legal theory that Cernovich and others are advancing about interference requires a "tort" - i.e. misconduct. It's not enough under this legal theory to simply disrupt a business relationship, you must have done so through something nefarious or itself actionable. For example, if I setup a coffee stand in a better location that siphons customers off from my local Starbucks, Starbucks can't claim a tort because of it and shut me down. So far as I can tell, in California or anywhere else, there is no established precedent that banning users from your own service can ever be "wrong", unless it's in violation of some specific agreement to allow them onto the service in the first place. Maybe Cernovich will make some new law and find a great test case.

Regardless of that, the beauty of the legal attack via arbitration is that you don't have to have a good case. You can force the other side to incur costs just by nominally incurring a small cost upfront. When your business model is to make a little profit from many customers it is exposing yourself to massive risk. In DoorDashes case, a "dasher" might only generate $500-$1000 a year in revenue for the company, but the risk from an arbitration case could be 10X that or more. Fools.

Blogger AndyT February 12, 2020 10:03 AM  

> These corrupt tech companies are way out there on a ledge and legally vulnerable. This is getting obvious.

They are so big and so important to California's economy that if any state law really caused them a lot of exposure they'd just get it changed. The smaller players might suffer but if FANG calls, the State will listen.

Blogger VD February 12, 2020 10:10 AM  

The legal theory that Cernovich and others are advancing about interference requires a "tort" - i.e. misconduct. It's not enough under this legal theory to simply disrupt a business relationship, you must have done so through something nefarious or itself actionable. For example, if I setup a coffee stand in a better location that siphons customers off from my local Starbucks, Starbucks can't claim a tort because of it and shut me down. So far as I can tell, in California or anywhere else, there is no established precedent that banning users from your own service can ever be "wrong", unless it's in violation of some specific agreement to allow them onto the service in the first place.

You're flat-out wrong. Your level of knowledge of the subject doesn't even rise to the level of Wikipedia. There are five elements that must be present, with mild variations from state to state.

1. The existence of a contractual relationship or beneficial business relationship between two parties.
2. Knowledge of that relationship by a third party.
3. Intent of the third party to induce a party to the relationship to breach the relationship.
4. Lack of any privilege on the part of the third party to induce such a breach.
5. The contractual relationship is breached.
6. Damage to the party against whom the breach occurs.

I suggest that you not attempt correcting people with actual experience of the subject. There is a reason so many tech companies have been frantically revising their terms of use recently.

Blogger VD February 12, 2020 10:23 AM  

They are so big and so important to California's economy that if any state law really caused them a lot of exposure they'd just get it changed.

You're officially a moron, AndyT, and an ignorant one at that. You really need to stop talking about the subject, because you CLEARLY know nothing about it. First, California literally just changed the law in order to prevent the corporations from getting out of mandated arbitration by refusing to pay the fees. Second, none of the terms of use of Facebook, Apple, Netflix, or Google mandate or even concern arbitration at all.

You don't know the relevant facts, you didn't understand what Cernovich wrote, and you obviously didn't read the articles to which he linked.

You get no Smart Boy points.

Blogger James Dixon February 12, 2020 10:26 AM  

> I've been told by a couple of lawyers, one of whom specializes in consumer protection (mostly lemon law), that arbitrators can do pretty much anything they want.

I'd think a court would want to take a look at a series of biased judgments in favor of either party by an arbitrator, but in general and for individual cases I believe he is correct.

Blogger AndyT February 12, 2020 10:29 AM  

> 3. Intent of the third party to induce a party to the relationship to breach the relationship.

I am a practicing attorney in Florida and California. This is exactly right and the key word is "breach".

Terminating a user for a violation of a click-through agreement isn't a breach. A breach is violating an agreement. Person 1 and Company 1 have an agreement. Person 2, who is not party to the agreement, tells or induces Company 1 to terminate the agreement. That agreement is only "breached" if Company 1 didn't have the right to do so.

It is a tort and interference if Person 2 tells or induces Company 1 to take an action which they are not entitled to take.

Put it this way: If one of your readers or moderators suggests to ban me, and you do so, they have not interfered in our business relationship because you were always entitled to ban me.

> The state literally just changed the law in order to prevent the corporations from getting out of mandated arbitration by refusing to pay the fees.

That's right, and if it threatened Facbook or Google, the State would change the in a heartbeat. Also ran technology companies like DoorDash or Patreon are not very powerful.

Secondly, as Cernovich pointed out, this isn't an unsolvable problem. DoorDashes legal vulnerability is because they simultaneously don't want class litigation to establish them as employees, and they also don't want to pay for arbitration costs. California has mooted the first point as of January 1st, by making the contractors employees by law. And DoorDash will have to pay the arbitration fees or negotiate a settlement for existing claims. Ongoing they already found the solution, which is to drop the requirement to arbitrate individually (and possible find a more economic arbitration option).

Briefly put, the legal jeopardy is from arbitration clauses and costs, not the underlying claim that filers want to dispute.

Blogger Fuzzums Wuzzums February 12, 2020 10:36 AM  

It takes a gamer to think of spam-tactics in a legal dispute.

Blogger Gregory the Tall February 12, 2020 10:51 AM  

@AndyT
You wrote "They are so big and so important".
I suggest you hide in your bed trembling until they come for you. And I am sure they will.

Blogger Kraemer February 12, 2020 10:58 AM  

Legal legion of Zerglings anyone?

Blogger VD February 12, 2020 11:02 AM  

I am a practicing attorney in Florida and California.

Which is why you are, as I said, completely ignorant with regards to these things.

Terminating a user for a violation of a click-through agreement isn't a breach. A breach is violating an agreement. Person 1 and Company 1 have an agreement. Person 2, who is not party to the agreement, tells or induces Company 1 to terminate the agreement. That agreement is only "breached" if Company 1 didn't have the right to do so.

You're a moron, AndyT. This is why the Legal Legion eats much better lawyers than you for snacks. You're babbling in complete ignorance, whereas we have actually read ALL of the relevant agreements and we know what we're talking about.

If one of your readers or moderators suggests to ban me, and you do so, they have not interfered in our business relationship because you were always entitled to ban me.

No, but if the moderator helps establish a second and separate legal agreement between us, then in full knowledge of our agreement takes action that disrupts that second agreement to which he is not a party, he has tortiously interfered with it.

Briefly put, the legal jeopardy is from arbitration clauses and costs, not the underlying claim that filers want to dispute.

It totally depends upon the underlying claim, which will vary considerably from situation to situation depending upon the TOS and the specific nature of the company's actions. Your attempt to pontificate from generalities is exactly why the Legal Legion beats lawyers like you every single time. Most of you are a bunch of lazy midwits who can't do much more than repeat what your law school professors told you.

Blogger Kraemer February 12, 2020 11:26 AM  

He called himself a "practicing lawyer". I propose we dub him "practicing coward"

Blogger Johnny February 12, 2020 11:31 AM  

Owing to come confusion, I looked this stuff up. Under "What are the Elements for a Tortuous Interference Claim Under California Law," there is the following. The interference has to be, “independently wrongful apart from the interference itself.”

I am thinking that is the legal escape hatch if there is one. What would be justifiable interference? Apt to be what a judge thinks it is in the area of politics and social policy.

Blogger AndyT February 12, 2020 11:39 AM  

VD--

I look forward to seeing the wins, then. It could make some interesting precedent.

Blogger Kraemer February 12, 2020 11:41 AM  

Knowing how it's the SDLs greatest hobbies to read these things over and over again, I'm not worried about this particular escape hatch. At least not in the cases that the LLoE are pushing

Blogger James Dixon February 12, 2020 11:45 AM  

> The interference has to be, “independently wrongful apart from the interference itself.”

So you win the arbitration. Have a glass of champagne. Then realize you're bankrupt and have no legal recourse to recoup the losses, as those are nullified by the arbitration agreement.

Blogger VD February 12, 2020 11:52 AM  

The interference has to be, “independently wrongful apart from the interference itself.”

Read deeper. That is "Intentional Interference with Prospective Economic Advantage". It is not "Intentional Interference with a Contractual Relationship".

Moreover, in my experience, the platforms reliably lie about their reasons for terminating someone. The "violations" they claim as justification for their actions seldom exist at all. They tend to be of the "you violated our Terms of Use with your post on Facebook" variety, when they are not "the number 6 is racist' sort.

And finally, I have yet to see a situation where the corporation did not commit some actionable act in addition to the tortious interference. To give one example, YouTube continuing to bill people subscribing to an account it terminated.

Blogger Balam February 12, 2020 11:53 AM  

AndyT wrote:That's right, and if it threatened Facbook or Google, the State would change the in a heartbeat. Also ran technology companies like DoorDash or Patreon are not very powerful.

Yes despair you goyim despair! Don't force your enemy to cover his weak points, don't force him to move and expose himself to new flanks and don't take the easy victories when the enemy displays himself so incompetent that you feel bad for pillaging him! After all 'everyone knows'™ you can't challenge your betters. Trying is for losers and you want to fit in don't you? *rubs hand furiously*

Blogger Nathan Hornok February 12, 2020 11:53 AM  

It's great to see more people become aware of this legal leverage. Now let's sit back and watch the bow-tie cuckservatives come up with reasons why it's not proper to use this legal tool against these converged companies.

Blogger VD February 12, 2020 11:59 AM  

Johnny, this may help you better understand the difference. It's from a 1990 decision by the Supreme Court of California:

while the tort of inducing breach of contract requires proof of a breach, the cause of action for interference with contractual relations is distinct and requires only proof of interference.

Blogger Rebel Shoat February 12, 2020 12:09 PM  

AndyT is one of the problems us regular people have finding good representation. I'd have no reason to think he didn't know what he was taking about if I hadn't just watched the yall deal with deplatforming the last two years.

Blogger Jack Amok February 12, 2020 12:17 PM  

AndyT is missing a larger point. Whether or not the company committed a breech by terminating an account is the sort of thing the agreement says the company has to pay an arbitrator to decide. Without the arbitration demand, they could bundle thousands of individual claims into a class-action suit and decide them all at once. By including the arbitration clause, they have excluded that cost-saving move from their options - it looks like the courts are insisting they have to resolve these one-by-one.

Blogger Ingot9455 February 12, 2020 12:21 PM  

Just to add to the fun, one of the rights of a consumer in a JAMS arbitration is to have all in person hearings in their own hometown.

There weren't any JAMS arbitrators in my hometown and the nearest one was 3.5 hours away. It was resolved before we got to any in-person hearings. But if it wasn't, it would have been $500+ per hour of travel time plus the actual hearing for a minimum of 4k per visit.

Blogger VD February 12, 2020 12:22 PM  

I look forward to seeing the wins, then.

You won't see anything, because they're in arbitration. All you will see, at most, is statements like this:

The parties to the arbitrations have come to a resolution on the matter. The arbitrations have been terminated. We will not be making any further statement about it. Please do not ask questions or probe for details about the resolution of the matter.

If you had any experience of this subject, you would know that.

Blogger VD February 12, 2020 12:28 PM  

Whether or not the company committed a breech by terminating an account is the sort of thing the agreement says the company has to pay an arbitrator to decide.

No, he understood that. He's just incorrect about that being the only arrow in the consumer quiver.

AndyT is one of the problems us regular people have finding good representation. I'd have no reason to think he didn't know what he was taking about if I hadn't just watched the yall deal with deplatforming the last two years.

Exactly. Lawyers are strategically inept. They can be very good tactically, but they tend to have absolutely no ability to think outside the boxes that they've been taught. And due to their reliance on case law, which is intrinsically illogical, they tend to struggle with basic logic.

What is particularly funny is seeing them struggle with "If A = B, then B = A".

Blogger Ominous Cowherd February 12, 2020 12:34 PM  

Johnny wrote:The interference has to be, “independently wrongful apart from the interference itself.”
Opening a competing business and siphoning off customers is not independently wrongful. Calling the cops when a law is violated is not independently wrongful.

Threatening that you will somehow harm or disadvantage one party to an agreement if he does not break the agreement just might be. Preventing a party from carrying out his end of an agreement also might be. This last is what Patreon has done.
Johnny wrote:I am thinking that is the legal escape hatch ...

I think that's an escape clause for normal competition, not an escape clause for a third party who sticks his nose into your business, as Patreon has definitely done.

Blogger AndyT February 12, 2020 12:47 PM  

VD--

Its true I never thought about why you would just settle unless it's for a payday, which means you had damages. Recovering damages, in my eyes, I guess I don't view as a "win", it's just being made whole.

Most lawyers would look at changing behavior and recovering punitive damages as a "win", especially when you are talking about dealing with hundreds or thousands of clients.

Blogger VD February 12, 2020 1:06 PM  

Its true I never thought about why you would just settle unless it's for a payday, which means you had damages. Recovering damages, in my eyes, I guess I don't view as a "win", it's just being made whole.

It's about leverage, replatforming, and collecting skulls. As I said, you guys don't even begin to grasp strategy. Any half-decent wargamer would run rings around even an above-average lawyer, so long as he had a decent legal search engine.

Blogger Gregory the Tall February 12, 2020 1:28 PM  

Vox wrote "Any half-decent wargamer would run rings around even an above-average lawyer"
Let us assume that this above average lawyer belongs to the best 20 percent of members of his profession, but not to the 10 best percent. This would mean that 80 percent of all lawyers are not much use in a situation like this. Keep this in mind when choosing a lawyer for yourself - in any situation.

Blogger Lance E February 12, 2020 1:40 PM  

It'll be good to see this being applied to crowdfunding. What I wonder is - will or can it be applied to the big merchant services, like PayPal?

Merchant services are essentially a facilitation role. The "Send Money" feature is definitely a facilitation role, not really any different from Patreon's scenario.

In theory, a defense could be that TI only applies to existing relationships, not potential future relationships. But then there's that subscription/automatic payment feature...

Blogger Dave February 12, 2020 1:41 PM  

It's about leverage, replatforming, and collecting skulls.

Can't wait for, what is it, September or October?

Blogger mgh February 12, 2020 2:17 PM  

"Lawyers are strategically inept". I come here for gems like this. In a recent personal situation my lawyer ignored what I suggested as the obvious strategy and went a different route which is going to be slow to resolve. In my ignorance I assumed he knew better. But is it because they are poor at strategy, or does legal training intentionally favor the long, slow, and billable instead of the quick and cheap win?

Blogger Noah B. February 12, 2020 2:34 PM  

I have no data to back this up, but just from my own observations it looks like Youtube bans have mostly stopped. Maybe this is why.

Blogger R Webfoot February 12, 2020 3:15 PM  

@AndyT
"Terminating a user for a violation of a click-through agreement isn't a breach. A breach is violating an agreement. Person 1 and Company 1 have an agreement. Person 2, who is not party to the agreement, tells or induces Company 1 to terminate the agreement. That agreement is only "breached" if Company 1 didn't have the right to do so."

In the cases featured on this blog, Company 1 publically declares that it is only facilitating a contract between Person 1 and Person 2, and is not a party in the contract. Person 3 then complains that Person 1 is racist, so Company 1 bans Person 1's account.

Blogger James Dixon February 12, 2020 3:57 PM  

> What I wonder is - will or can it be applied to the big merchant services, like PayPal?

Are they headquartered in California? Do they have an arbitration clause in their user agreement? Are multiple parties affected by their actions? If so, yes. This is California law governing arbitration.

Other states may have similar laws or not (Vox probably knows, I don't).

Blogger Ben Cohen February 12, 2020 4:15 PM  

Anyone here recommend a good CPA?

Blogger Akulkis February 12, 2020 5:00 PM  

No precedent needed, AndyT. The history of Tortious Interference literally goes back to the late 1200's. A man interfering with his neighbor's duck business by frequently scaring all the ducks inducing them to fly away from the neighbor's property, thereby causing disruptions in the neighbor's commercial relationship with his customers.

Blogger OneWingedShark February 12, 2020 5:35 PM  

AndyT wrote:> These corrupt tech companies are way out there on a ledge and legally vulnerable. This is getting obvious.

They are so big and so important to California's economy that if any state law really caused them a lot of exposure they'd just get it changed. The smaller players might suffer but if FANG calls, the State will listen.

The big-tech companies are instrumental in the H1B-fraud: the entirety of the "STEM shortage" as absolute and utter lies. Just go on a job-board and look up "entry level" tech jobs, take a look at the requirements, particularly with things like version-numbers and experience required. — 3/5/7/10 years of required experience is NOT Entry-Level, and the reason they do this is to drive H1B-fraud and import someone from India or China who claims to have that experience… that's on part of the big-companies, the more modest-sized ones you apply for you're competing against the mid- and senior-level displaced who do have the 3/5/7/10 years of experience.

The proper course of action, IMO, is to acknowledge the invasion, mobilize the Army to besiege the "sanctuary cities", and issue warrants for the Treason, Sedition and Conspiracy of the public-officials of those sanctuary-cities as well as those big-companies giving the foreigners Aid and Comfort. — THEN if those companies try to buy their way out they're just digging a bigger hole.

Hell, given how badly Google, Apple, FaceBook, and Microsoft are with data- and identity-collection riding roughshod over privacy exactly how much public outcry would there be if government said "you know what, you're sending this data to our enemies, you're dead."? — Trump could screw-over the intelligence-agencies and their connections with a single EO saying "effective immediately, all documents prior to 01 Jan 2005 which do not concern strategic resources are hereby declassified" and then use those documents to hang big-tech out to dry while crushing the traitorous intel agencies… after all, even if the Government tells you to do something illegal doesn't suddenly make it legal. (ie "Entrapment" is a thing.)

Ingot9455 wrote:Just to add to the fun, one of the rights of a consumer in a JAMS arbitration is to have all in person hearings in their own hometown.

There weren't any JAMS arbitrators in my hometown and the nearest one was 3.5 hours away. It was resolved before we got to any in-person hearings. But if it wasn't, it would have been $500+ per hour of travel time plus the actual hearing for a minimum of 4k per visit.

This makes me smile (and possibly giggle with glee), thank you for the info!

Blogger bodenlose Schweinerei February 12, 2020 6:01 PM  

AndyT, apologist for dem po' gimmiegrants what just never learned about dat der horse-less carriage, is even more clueless than first thought.

Blogger A guy in a dusty attic February 12, 2020 6:32 PM  

Holy catfish

Blogger SirHamster February 12, 2020 7:04 PM  

AndyT wrote:Terminating a user for a violation of a click-through agreement isn't a breach. A breach is violating an agreement. Person 1 and Company 1 have an agreement.
Your example shows where you missed the point.

Person 1 isn't making an agreement with Company 1. Person 1 is making an agreement with Person 2, with Company 1 providing some tech magic to link the two.

In terminating Person 1's account, Company 1 breaks Person 1's contract with Person 2.

The DoorDash example is to point out that courts are enforcing arbitration rules against big tech. Which confirms the peril for Patreon and similar companies that have interfered with the agreements between content creators and their patrons.

Blogger John Kim February 12, 2020 7:41 PM  

I hope no one hires AndyT for legal advice, that would be money down the drain.

Blogger Lance E February 12, 2020 7:49 PM  

James Dixon wrote:Are they [PayPal] headquartered in California?

Yes, in San Jose.

Do they have an arbitration clause in their user agreement?

I don't think that's an essential ingredient for a tortious interference claim; we are talking about two different things here, mass arbitration claims and civil suits for tortious interference. But to answer the question: yes, they do.

Are multiple parties affected by their actions?

Obviously - both the buyer and seller.

If so, yes. This is California law governing arbitration.

But will it be enforced, or will a judge (or arbitrator) invent a new loophole? That's the key question.

Blogger Guy Incognito February 12, 2020 8:12 PM  

On a completely unrelated note, Youtube JUST updated their terms of service. I don't know what the limits of fees which can be recovered used to be, but they're now 12 months of earnings or 500 dollars.

Blogger awildgoose February 12, 2020 8:16 PM  

mgh wrote:In a recent personal situation my lawyer ignored what I suggested as the obvious strategy and went a different route which is going to be slow to resolve. In my ignorance I assumed he knew better.

It sounds like you learned from the situation and moved on, which is great.

Don't be afraid to be a vocal, informed skeptic with any professional, now more than ever. Ultimately it is your dollar that is paying for the service.

Blogger Sean February 12, 2020 8:29 PM  

Unless I'm missing something, it doesn't matter if the arbitration succeeds or not. The main point is that companies are forced into arbitration which will make them incur a disproportionate amount of costs compared with the people bringing them about

Blogger James Dixon February 12, 2020 8:43 PM  

> But will it be enforced, or will a judge (or arbitrator) invent a new loophole?

You may not get win the arbitration case, but California law says you only have to pay $250 to start it. All other costs must be covered by the company. If those costs are only $1K, if 5000 people bring an arbitration case, that's a minimum of $5M out of pocket for the company. Chernovich indicates they may be closer to $10K. If you demand that the case be heard in your area (as Ingot9455 indicated above, that is an option), then the costs to the company explode.

The point here isn't that you're going to win your arbitration case; the point is that if even a relatively small number of users take the company to arbitration, they're screwed. And rounding up that many aggrieved users is now child's play.

Blogger Jack Amok February 12, 2020 9:03 PM  

No, he understood that. He's just incorrect about that being the only arrow in the consumer quiver.

Yes, I see that now, and he even clarified it in another comment - I guess I jumped at a conclusion based on Andy's desire to present a hypothetical "out" for the company. But there really is no "out" for any of this, short of sympathetic judges and prosecutors who will look the other way. Assuming the amenable authority isn't a bullet proof strategy.

Any half-decent wargamer would run rings around even an above-average lawyer, so long as he had a decent legal search engine.

A long time ago it dawned on me that game designers would be far, far better legislators than lawyers. Lawyers see
unclear laws with loopholes and exploits as full-employment guarantees. Game designers see them as design flaws. Wargamers of course see them as opportunities, with the only restraint being how much sportsmanship the other guy deserves.

Blogger Jack Amok February 12, 2020 9:06 PM  

But will it be enforced, or will a judge (or arbitrator) invent a new loophole? That's the key question.

C'mon, reading comprehension Lance. Vox's post is about judges doing exactly that:

"And judges are enforcing the law strictly."

Blogger Ransom Smith February 12, 2020 9:52 PM  

I hope no one hires AndyT for legal advice, that would be money down the drain.
The problem with lawyers, is that quite a lot of them make their money seeing who can bury the other in paperwork.
He who can make the most wins.

Blogger Akulkis February 13, 2020 3:41 AM  

This comment has been removed by the author.

Blogger James Dixon February 13, 2020 7:49 AM  

> If you had the opportunity to negotiate the terms of the contract/EULA/TOS, then IT'S ALL BULLSHIT.

This is an important point. A lot of agreements will claim that you can't go to court over this matter or another. Such agreements are only valid if the court agrees they are. They are not binding on the court. A lot of people have found that out the hard way over the years. Congress can limit the jurisdiction of any court under the Supreme Court. The rest of us don't have that power.

Blogger Akulkis February 13, 2020 8:25 AM  

"I don't know what the limits of fees which can be recovered used to be, but they're now 12 months of earnings or 500 dollars."

100% not enforceable. You can't sign away your rights to seek full damages, let alone typical 3x multiplier in certain types of tort cases (lost income due to wrongful dismissal, as one exsmple, otherwise every employer would be having you sign away that right)

Many terms in these contracts are nothing more than intimidation blah-blah, on the gamble that the other party, when wronged, will be buffaloed into thinking he has no right to redress "because EULA" or "because TOS".

If you did not have the opportunity to negotiate the terms of the contract/EULA/TOS presented by the other party, then IT'S ALL BULLSHIT.

Blogger bodenlose Schweinerei February 13, 2020 10:06 AM  

That's right, and if it threatened Facbook or Google, the State would change the (laws) in a heartbeat. Also ran technology companies like DoorDash or Patreon are not very powerful.

Because CA government has shown itself to be so far-sighted and business-friendly. I'm sure they won't be squeezing FANG's dangly bits in the near future to get their cut, excuse me, 'fair share', of all that offshore money their favorite globalists are still hoarding. It's not as if Cali is going to have the mother of pension bombs exploding any time soon.

Blogger The Pitchfork Rebel February 13, 2020 5:28 PM  

@46

For what purpose?

CPA's specialize like doctors these days. It depends on what you need.

Full Disclosure: I am a CPA not in public practice.

Blogger SciVo February 14, 2020 3:59 AM  

@Akulkis:

Many terms in these contracts are nothing more than intimidation blah-blah, on the gamble that the other party, when wronged, will be buffaloed into thinking he has no right to redress "because EULA" or "because TOS".

Yeah, I remember a comment (I think at the Motley Fool) from someone who was given a non-compete agreement in his employment packet, and he just wrote on it "not valid in California" and the HR lady was like "yeah, true."

Blogger SciVo February 14, 2020 4:18 AM  

@bodenlose Schweinerei:

It's not as if Cali is going to have the mother of pension bombs exploding any time soon.

But, but, they have imported so much diversity! All those fecund Amerindians! Surely they will be able to maintain the old technocrats in the manner to which they have become accustomed??

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