...and obviously that is just as exciting for us. Much has been said about the dangers of playing Pokmon Go (see here and here). We wondered (`cuz we're lawyers) with all these Pokmon Go related injuries, maybe there will be a class action?
Well, like Uber and AirBnB, the company behind Pokmon Go, Niantic, has had the foresight to make sure its T&Cs include an arbitration clause. It is what companies do to avoid being the target of class actions or being sued in foreign courts. The difference here is that Niantic's arbitration clause is a little more evolved than others we have come across (in Pokmon speak it's like a Charizard or a Raichu).
First, the arbitration will take place in the country where you live. Secondly, if your claim is below US$75,000, Niantic will pay all the filing, administrative and arbitrator fees. Finally, even if Niantic wins the dispute it waives its right to recover legal fees and expenses. Imagine if Niantic threw in some telepresence technology too, why would you ever want to go to court?
For those not sold on the idea, Niantic's T&C's allows users to opt out of arbitration by giving notice within 30 days of signing up. We've previously said that Australian courts are likely to find unilateral arbitration clauses in consumer contracts to be unfair under Australian Consumer Law (ACL). Will the opt out clause change things?
To work out whether Niantic's arbitration clause is unfair, courts will take in to account the fact that consumers can opt out and that Niantic draws attention to the opt out (IN ALL CAPS!) within the first few paragraphs of the T&Cs. We're not saying Niantic would win, but it would sure have a better chance than Uber.
So, enforceability of the clause aside, should you exercise your right to opt out? Well, would you want to give up your right to join your fellow Pokmon trainers in a class action? It is a tough decision. But so is trying to decide what type of Pokmon you should take in to battle. We can't really help you with that one.