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….