...and obviously that is just as exciting for us. Much
has been said about the dangers of playing Pokémon Go (see
here). We wondered ('cuz we're lawyers) with all these
Pokémon Go related injuries, maybe there will be a class
Well, like Uber and AirBnB, the company behind Pokémon
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
Pokémon 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
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
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
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 Pokémon trainers in a class action? It is a
tough decision. But so is trying to decide what type of
Pokémon you should take in to battle. We can't really
help you with that one.
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quite proud of it really.
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