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Monday, July 27, 2020

So much for those "waivers"

Patreon's new Terms of Use are completely dead on arrival.
Dispute resolution
To summarize: If you have a problem please talk to us, but you are limited in how you can resolve disputes. You waive your right to trial by jury and your right to participate in a class action proceeding.
Except you don't, because you can't. Not in Patreon's legal jurisdiction of California, anyhow. First, you simply cannot waive your right to trial by jury except for a small number of specific reasons, which basically amount to "not showing up for the trial" and "not paying the court's filing fee", so any contractual agreement to preemptively waive your right to trial by jury is unenforceable according to both the California legislature and the California Supreme Court.
The California Supreme Court has ruled that a contractual agreement to waive the right to a jury trial, entered into prior to any dispute between the contracting parties, is unenforceable under the California Constitution and Section 631 of the California Code of Civil Procedure (the Code).
- citation summary of Grafton Partners v. Superior Court, 36 Cal.4th 944 (Cal. 2005)

“In Grafton Partners L.P. v. Sup.Ct., 36 Cal. 4th 944, 957-61 (2005), the California Supreme Court held that pre-dispute jury waivers are unenforceable as a matter of law under the California Constitution and state contract law.”
- Pallen Martial Arts, LLC v. Shir Martial Arts, LLC, No. 13-cv-05898-JST (N.D. Cal. May 23, 2014)
Nor can you waive your right to participate in a class action proceeding, so long as the class action takes place in court and not in arbitration.
In Discover Bank, the California Supreme Court applied this framework to class-action waivers in arbitration agreements and held as follows:

"[W]hen the waiver is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money, then ... the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ Under these circumstances, such waivers are unconscionable under California law and should not be enforced." Id., at 162, 30 Cal.Rptr.3d 76, 113 P.3d, at 1110 (quoting Cal. Civ.Code Ann. § 1668 ).

California courts have frequently applied this rule to find arbitration agreements unconscionable. See, e.g., Cohen v. DirecTV, Inc ., 142 Cal.App.4th 1442, 1451–1453, 48 Cal.Rptr.3d 813, 819–821 (2006) ; Klussman v. Cross Country
Despite Discover Bank, you can, however, waive your right to a class action arbitration, since the conflict between California law and the Federal Arbitration Act caused the California Supreme Court to distinguish between class action litigation and class action arbitration in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).

Can you spell "deceptive practices"? I knew you could....

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29 Comments:

Blogger Shakey July 27, 2020 2:44 PM  

I've learned more about contract law in my state over the past couple of months thanks to you and the Bears Vox. I gleefully await the inevitable bouncing rubble.

Blogger Azimus July 27, 2020 2:48 PM  

I wonder if the the legal team at Patreon is familiar with the story of the Unfortunate General Mack and Ulm, 1805?

Maybe history really does repeat itself...

Blogger RandyB July 27, 2020 2:51 PM  

This rubble is going to hit escape velocity.

Blogger ar10308 July 27, 2020 3:26 PM  

Up there with starting a military march towards Moscow in the Fall, a new lesson of historical folly for all to observe will be starting legal battle with a game designer who reads 1200 words per minute.

Blogger Fozzy Bear July 27, 2020 3:37 PM  

I just got a refund out of LastPass for not notifying me of a price increase, and TurboTax for a similar reason. Paying attention to the T&Cs, and reviewing the consumer law in the governing state, are useful.

Blogger CCP July 27, 2020 3:54 PM  

Is the strategy for these updates to their Terms of Use being driven by the outside council who is representing them? Or internal folks?

Do you think the Patreon leaders are realizing that the people advising them are incompetent?

Blogger John Bosch July 27, 2020 3:59 PM  

We're watching Patreon provide almost every example of "Hold My Beer". Popcorn and seasonings are at the ready.

Would it be economically viable for our Supreme Dark Lord to publish a consumer/corporate lawfare manual in the vein of The Art of War and 4th Generation Warfare? Imagine the titles:

-The Art of Lawfare: How to Not Fail Like Patreon
-The Consumer Arbitration Lawfare Handbook
-Sun Who? Hold My Briefs.

Blogger Silent Draco July 27, 2020 4:00 PM  

At least it's billable hours. At the worst, it's placing a small sign on the open portcullis and main gate for the castle, reading "Closed for Repair and Moat Cleaning".

Blogger James Dixon July 27, 2020 4:14 PM  

> Except you don't, because you can't. Not in California, anyhow.

And I'm pretty sure Patreon claims that California law applies.

Blogger Flannel Avenger July 27, 2020 4:18 PM  

Behold. Award Winning Cruelty Artistry at work.

Blogger Balam July 27, 2020 4:19 PM  

Hahaha, it would have been better for Patreon to keep their mouth shut instead of showing off their contempt for the law and little people with outrageous terms of use.
I can only express my feelings in parody.
Dispute resolution:
To summarize: if you talk with us you waive your right to call the police against us for murder or aggravated assault. However if we lose that particular fight we, Patreon, reserve the right to call the police on you for such action.

Blogger Scuzzaman July 27, 2020 4:44 PM  

Don't they also insist that any dispute will be handled according to the laws of California?

Blogger Lance E July 27, 2020 4:56 PM  

At this point they might as well just go balls to the wall and update the terms to say what they really want them to say: "your money is ours, you SUCKER, we'll do whatever we want with it whenever we want to and there's nothing you or any prissy little judge or arbitrator can do about it, so if you have a problem, just look sad and shut up."

They might not get as many customers that way, but at least with clear language the terms might have a chance of being upheld.

Blogger swiftfoxmark2 July 27, 2020 5:08 PM  

They keep on trying to play the "Heads I win, Tails you lose" game but they suck at it so much it's really pathetic.

Blogger Doktor Jeep July 27, 2020 6:13 PM  

All these ins and outs, references and details. It's a wonder that omega spergs don't become lawyers.
Or maybe they prefer paralegal?

Blogger Darren July 27, 2020 6:54 PM  

So weird that a bunch of unconscionable nonsense comes out of the mouth minds and hearts of those with no conscience. And also no self-awareness. Apparently.

Blogger Darren July 27, 2020 6:56 PM  

Or perhaps
The Art Of Lawfare: How To Retake Your Power From Idiots Like Patreon

Blogger God Emperor Memes July 27, 2020 7:07 PM  

"You fool! - You fell victim to one of the Classic Blunders..."

Blogger Dole July 27, 2020 7:08 PM  

They forgot to include "By agreeing with the terms of service, your souls henceforth belong to Satan, Patreon's lord".

This is what happens when SJW is wiggling the warrior's mace, or lawyer's pen.

Blogger My 1 millionth internet profile July 27, 2020 7:13 PM  

@15 - Successful lawyers have above average "social skills", often of the manipulative kind, but skills nonetheless. Omegas couldn't handle it.


The best part of this: Patreon is irritating the very people who will be trying their case, the judges, by essentially telling them to go pound sand.

Blogger pyrrhus July 27, 2020 8:20 PM  

The key phrase is "contracts of adhesion", which applies to all of these so-called "contracts" where the consumer has no bargaining power....

Blogger Ransom Smith July 27, 2020 8:26 PM  

Well their in house lawyer went to a bottom tier law school.
Assuming they're even listening to him in the first place.

Blogger boogeyman July 28, 2020 12:35 AM  

And all they had to do was their job, just transfer the money between A and B while collecting their fee.

This is why I'm willing to entertain conspiracy theories. There comes a point where the actions of a group appears so monumentally stupid that the idea there is some giant, evil conspiracy at play seems less ridiculous.

Blogger Sean July 28, 2020 1:13 AM  

I chose the wrong profession - I should've become a bullshit artist lawyer and collect $$$ whilst coming up with crap.

Blogger Gregory the Tall July 28, 2020 4:42 AM  

First lawyer to second lawyer: Do you happen to know what "honor" means?
Not really, second lawyer replies. I guess it's got something to do with honorarium.

Blogger APL July 28, 2020 5:11 AM  

Off topic but you might be interested.

I have a repetitive debit to Infogalactic which has been running ever since UTV was set up. The card company stopped my card and today I received a letter:-

"We are writing to let you know that we have not paid the following transactions from your card account. The reason for this is shown below for your information.

23/07/2020 £7.91 INFOGALACTIC Declined due to suspected fraud."

The card doesn't expire until next year. This payment has been set up on the card ever since UTV started.

Every month the card has been debited this amount but suddenly this month, the same regular payment is deemed by the card company to be potentially fraudulent.

I wonder if any of your other subscribers have experienced this?

When I spoke to the card company, the agent actually lied to me over the phone.

Blogger VD July 28, 2020 5:28 AM  

First, thank you, APL. Second, that is certainly suspicious.

Blogger Paul M July 28, 2020 6:43 AM  

Because appealing to a court for redress of a wrong is an inalienable right of any citizen.

Blogger OneWingedShark July 28, 2020 6:19 PM  

Ransom Smith wrote:Well their in house lawyer went to a bottom tier law school.
I would actually be less surprised if he went to a high-tier law school than a low-tier one.
You see, current law-schools are trying to pass off pilpul BS as legal reasoning, this is why the "incorporation" of the Fourteenth amendment is regarded as legitimate when the First Amendment clearly shows that it is not legitimate, but the usurping of the power to amend the Constitution by the Judiciary: the First applies exclusively and explicitly to "Congress", but States, counties, and municipalities simply don't have a body called a "Congress" — to hold that it applies to 'legislatures' (and executive branches) is to tacitly admit that the "incorporation" is the amending of the Constitution to say things it does not.

Paul M wrote:Because appealing to a court for redress of a wrong is an inalienable right of any citizen.
This is absolutely true.
The problem is that, as shown above, many courts are subverted.

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