Pokémon Go certainly has been generating a lot of interest recently. However, the excitement is largely about the game itself, with many players unknowingly skipping over a surreptitious arbitration clause contained in the game’s terms and conditions. Niantic’s terms of service, among other provisions, contains the following arbitration clause:
ARBITRATION NOTICE: EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “AGREEMENT TO ARBITRATE” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND NIANTIC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Sure, the terms of the arbitration clause may never come to fruition. But in the case of something like an app-wide data breach, users bound by the terms and conditions will see themselves forced to arbitrate their loss, without the option of a class action to mitigate costs.
What does being bound by arbitration clause really mean?
Binding arbitration means your grievance will be constrained to a private dispute resolution process outside of court. Many arbitration clauses, including the one at issue, allow the defendant to pick the arbitrator from a certain agency. Here, Niantic is able to pick an arbitrator from the American Arbitration Association (AAA), whose future business with the company will likely depend on their judgment. Additional negatives include the rising costs of arbitration and the very limited ability to appeal an arbitrator’s judgment to a court.
How will waiving the right to a class action affect me?
In AT&T Mobility LLC v. Concepcion, the Supreme Court decided that class-action waivers in arbitration agreements would be largely enforceable, despite the fact that many consumer’s small-dollar grievances would slip through the legal system. Thus, despite the importance of class actions in employment and consumer contexts, the symbolic David versus Goliath battle is all but over in the context of arbitration. Thus, despite the amount of losses that may be caused by the company, each consumer would have to shoulder those costs individually in arbitrating their grievance.
Is there any way to get out of these constraints?
Luckily, the terms of service also includes an option to opt out of the terms and conditions. A user can opt out by sending an email to email@example.com with “Arbitration Opt-out Notice” in the subject line and a clear message indicating that you are opting out of the arbitration clause in the Pokémon Go terms of service. Since many users only downloaded the application recently, there is still time to avoid the contract’s effects.
Since being released last Wednesday, Pokemon Go has become the most downloaded mobile app in mobile app stores. In fact, the game has been received as the most popular mobile game in U.S. history, with 21 million daily users. The app has caused Nintendo’s stock to skyrocket — by Monday, it had risen 24.52 percent. The app has added $9 billion to the company’s market value and has already been installed on an estimated 5 percent of Android smartphones in the United States.
The app allows users to venture into augmented reality, a technology that blends digital and physical worlds into a unique interactive experience. Before Pokemon Go, some smartphone users had gotten a taste of augmented reality through Snapchat Inc.’s array of filters. The game should also be lauded for promoting exercise among users, with many users reporting the game as increasing their daily exercise.
But the game’s quick rise to success has had some downsides. A variety of injuries have occurred from people not paying attention to their surroundings while playing the game. Accidents include: two men falling off a 50-100 foot bluff in Encinitas, a 16-year-old girl in Pennsylvania hit by a car after she wandered onto a major freeway and an array of bumps, bruises, scrapes and falls. Four teens in Missouri were even able to use the geolocation feature of the game to lure victims into nearly a dozen armed robberies.
Although the game includes a preliminary screen warning users to stay alert and aware of their surroundings, potential legal issues may arise. The initial question for injured players with legal claims, likely in a negligence context, is whether the creators of the game owed a legal duty to users. Only time will tell how California courts resolve these and other novel issues unearthed by the game.
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