Patreon denied preliminary injunction

From the Superior Court of San Francisco:

2020-07-29 LAW AND MOTION, 302, PREVIOUSLY SUBMITTED ON JUL-13-2020, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION IS TAKEN OFF CALENDAR PURSUANT TO THE ORDER DENYING PRELIMINARY INJUNCTION, FILED ON JUL-29-2020. (D302)

2020-07-29 ORDER DENYING PRELIMINARY INJUNCTION

There was also a hearing in Owen’s arbitration concerning Patreon’s motion for summary judgment today. That ruling won’t be given until next week, but based on what the lawyers have said, I think it is very, very unlikely that the arbitrator isn’t going to permit the arbitration to proceed to the final hearing.

So far, so good. Especially in light of the Commerce Department filing a petition to prevent the social media platforms from performing their little publisher/platform dance to avoid responsibility for their own actions.

The text of the judge’s order denying the injunction and declining to interfere in the 72 arbitrations has been posted publicly and can be read below. It is essentially the tentative ruling plus the judge addressing Patreon’s additional citations; read the whole thing for a good understanding of where the situation stands at this point in the process.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

ORDER DENYING PRELIMINARY INJUNCTION

Patreon seeks a preliminary injunction to enjoin defendants “from continuing to pursue improper claims against Patreon in JAMS arbitration,” pending this Court’s consideration and final adjudication of Patreon’s complaint for declaratory judgment. Defendants are individual claimants in 72 pending JAMS arbitration proceedings against Patreon. Patreon claims that those claims are barred by its Terms of Use because they involve nonarbitrable claims. Patreon’s request for a preliminary injunction is denied, for several reasons.

First, Patreon fails to show that it will suffer any irreparable injury or interim harm if an injunction does not issue. JAMS has agreed to determine the threshold jurisdictional issues Patreon raises and will afford Patreon an opportunity to object to its jurisdiction in the course of the arbitration proceedings. If Patreon is correct that Defendants’ claims are not arbitrable or are outside the scope of the parties’ agreements, the arbitrators presumably will rule in its favor on those issues. Merely having to incur expense in order to participate in arbitration proceedings is not irreparable harm.

Second, Patreon fails to show a reasonable likelihood of prevailing on its claims. Even if Patreon were correct that Defendants’ claims are not arbitrable, those issues are for the arbitrator, not the court, to decide. “An arbitration provision’s reference to, or incorporation of, arbitration rules that give the arbitrator the power or responsibility to decide issues of arbitrability may constitute clear and unmistakable evidence the parties intended the arbitrator to decide those issues.” {Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 892 [arbitration provision’s reference to JAMS rules that assign issues of arbitrability to the arbitrator “evidences the parties’ clear and unmistakable intent to submit issues of arbitrability to the arbitrator”].) Rule 8(b) of the JAMS Streamlined Arbitration Rules provides, “Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.” Indeed, Patreon asserts that a JAMS arbitrator has already ruled in its favor in a similar case. (Reply at 4 n.3.)

Third, California courts rarely grant the extraordinary relief Patreon seeks here: an injunction interfering with an ongoing contractual arbitration proceeding. “Once a dispute is submitted to arbitration, the [California Arbitration Act] contemplates limited, if any, judicial involvement. ‘Typically, those who enter into arbitration agreements expect that their dispute will be resolved without necessity for any contact with the courts. [Citation.] ‘It is the job of the arbitrator, not the court, to resolve all questions needed to determine the controversy.’” {Briggs v. Resolution Remedies (2008) 168 Cal.App.4th 1395, 1400.) That conclusion is “especially true” where, as here, “the arbitration began without the need to seek a court order compelling arbitration.” {Id. at 1401.) As another court has explained, “An arbitration has a life of its own outside the judicial system. The trial court may not step into a case submitted to arbitration and tell the arbitrator what to do and when to do it.” (Titan/Value Equities Group, Inc, v. Superior Court (1994) 29 Cal.App.4th 482, 487-489 [trial court exceeded its jurisdiction when it attempted to remedy arbitration delay by ordering arbitration to proceed under stated conditions subject to reinstatement on trial calendar].)

To be sure, Patreon is correct that this principle is not an inflexible one. However, the cases Patreon cited for the first time at the hearing do not support its position, either because no issue was actually raised or decided on appeal as to the propriety of such injunctive relief, or because they are readily distinguishable on their facts. (See, e.g., Brooks v. AmeriHome Mortgage Company, LLC (2020) 47 Cal.App.5th 624, 629, pet. fo r review filed, No. S261879 (June 9, 2020) [court issued preliminary injunction to enjoin arbitration of PAGA claim, which employer conceded was “nonarbitrable” under controlling authority]; Stasz v. Schwab (2004) 121 Cal.App.4th 420, 426-427, 442 [affirming judgment confirming arbitrator’s award; opinion notes that trial court denied repeated requests to stay arbitration proceedings, but suggests in dicta, citing federal authority, that “[i]f an arbitrator or sponsoring organization mistakenly accepts jurisdiction, a party may either seek judicial relief to enjoin the arbitration or object to jurisdiction in the arbitration proceedings and raise the lack of jurisdiction as a ground for vacating the award”]; Delta Dental Plan v. Banasky (1994) 27 Cal.App.4th 1598, 1602 [affirming summary judgment for dental plan; opinion notes that the AAA advised the parties it would resume the arbitration unless there were a court order staying arbitration]; International Film Investors v. Arbitration Tribunal of Directors Guild (1984) 152 Cal.App.3d 699,704 [dismissing appeal from judgment following trial court’s denial of petition for writ of prohibition seeking to prevent commencement of arbitration proceedings]; N.A.M.E.S. v. Singer (1979) 90 Cal.App.3d 653 [reversing order dismissing petition to confirm arbitration award]; Windsor Mills, Inc. v. Collins & Aikman Corp. (1972) 25 Cal.App.3d 987 [affirming judgment denying petition to compel arbitration and preliminary injunction against arbitration proceedings initiated by seller during pendency of buyer’s action for damages on ground that there was no agreement to arbitrate because buyer was unaware of arbitration provision].)

Briggs is closely analogous. There, the arbitrator stayed an uninsured motorist arbitration pending a determination of the insured’s entitlement to workers’ compensation benefits. The insured sought a petition for writ of mandate, which the trial court denied on its merits. The Court of Appeal affirmed on other grounds, holding that “the trial court lacked the authority to review a discretionary, prehearing order of an arbitrator.” (168 Cal.App.4th at 1397.) As it explained, “the trial court conducted what amounted to a de novo review of an arbitrator’s interlocutory order, something it had no statutory authority to review for any reason.” (Id. at 1401.) Here, Patreon is effectively seeking similar relief: immediate review of JAMS’ interlocutory orders submitting the contested issues to the arbitrators for decision, rather than immediately granting Patreon’s objections to arbitration or its alternative request to issue a blanket stay of the arbitration proceedings pending a ruling on Patreon’s request for coordination of those arbitrations. Under Briggs, the Court lacks authority to review those administrative decisions.

Accordingly, the court DENIES Patreon’s request for a preliminary injunction.

IT IS SO ORDERED.


No anonymous defamation

At least not in California anymore:

Two women who used Twitter to anonymously accuse Justin Bieber of sexual assault may be identified after a judge ruled that the star is allowed to subpoena the social media platform for the info.

Deadline reports that Los Angeles Superior Court Judge Terry Green ruled in Bieber’s favor Thursday, allowing the “Sorry” singer and his attorneys to demand Twitter turn over the identities of these alleged victims.

“We just want to uncover who is behind these two accounts, and it may be the same person,” Bieber’s lawyer, Evan N. Spiegel told the court. He also called the claims “provably false” through eyewitness and photographic evidence.

This would appear to be a very bad time to be someone who posts anonymous written defamation about people on a site operated by a California corporation.


Patreon ups the ante

Because it is being methodically and systematically trounced in arbitration, Patreon has resorted to the unusual – if not to say entirely insane – tactic of threatening to file lawsuits against its users who have done nothing more than follow the rules imposed upon them unilaterally by Patreon.

This appears to be a desperation move that was inspired by the complete failure of their lawyers to consolidate, coordinate, or otherwise group the parties in order to avoid the inevitable expenses of scores of simultaneous arbitrations by the users they had wronged.

Of course, as I’ve previously pointed out, every attack creates an opening, and the opening they’ve created here can only be described as comprehensive. For you see, in addition to the deceptive practices they’ve already committed, and in addition to their attempts to remove the consumer protection laws from their creators, Patreon is now attempting to strip consumer protections from all of their users, creators and patrons alike. At this point, every move they make only serves to create new vulnerabilities.

In this case, if they actually follow through on their current posturing and start serving their users, what this will do is allow the Legal Legion to move any lawsuit filed in a state court to Federal court, then file counterclaims that include one or more class actions on behalf of a) all of Patreon’s creators as well as b) all of Patreon’s users.

If necessary, we will also be setting up a legal defense fund, not to pay for the Legion’s services, but to demonstrate that the Patreon users being attacked by Patreon will be protected in the extremely unlikely event that a lunatic Federal judge decides that Patreon has somehow been damaged by its users legitimately exercising the rights imposed upon them by Patreon.

Of course, literally all of the relevant law and case law, both state and Federal, points to this being either a) Patreon attempting to commit suicide by law, or b) Patreon’s lawyers desperately trying to convince Patreon to keep writing them the checks that it shouldn’t have written in the first place. This legal “strategy”, to the extent that one can call it that, is so obviously futile that if you’re financially dependent upon Patreon in any way, I would not count on it being around in 12 months.

#crushing #delendaest


The heat is on

Patreon lays off 30 people:

Creative platform Patreon  has laid off 30 employees, which is 13{de336c7190f620554615b98f51c6a13b1cc922a472176e2638084251692035b3} of its workforce, TechCrunch has learned.

“It is unclear how long this economic uncertainty will last and therefore, to prepare accordingly, we have made the difficult decision to part ways with 13{de336c7190f620554615b98f51c6a13b1cc922a472176e2638084251692035b3} of Patreon’s workforce,” a Patreon spokesperson said in a statement to TechCrunch. “This decision was not made lightly and consisted of several other factors beyond the financial ones.”

Several other factors indeed…. Snicker-snack.


Email alert

If you are a Replatformer with an account created BEFORE December 19, 2019 and you wish to put a certain company on 30-day notice concerning their recent deceptive practices and contractual breaches, as required by the law, please be on the lookout for an email with DECEPTIVE PRACTICES NOTICE in the subject.

The email contains a link to a file with instructions. All that is required is providing some basic information, then sending an email to the address contained in the file. If you have an SG2 account and you follow me, you can directly access the file from there. Please respond quickly to the email, as the more who object, the more likely it is that the deceptive practices will come to an end.

Eligible VFM should take part in The Noticing.

UPDATE: About half the emails went out today. The other half will go out tomorrow.


What did I tell you?

Did I not say that Patreon was going to change its terms of use again before the end of February?

From: The Patreon team
Subject: Updates to our policies
Date: 16 January 2020

As part of our ongoing commitment to privacy and to comply with the California Consumer Privacy Act (“CCPA”), we are updating our Privacy Policy. We are also taking this opportunity to update our Terms of Use and Benefit Guidelines.

Now how could I know that? Here is another prediction. They will change them again before the end of March….


The doctrine of unconscionability

Just a little light reading that has occupied a few members of the Legion of late:

“The doctrine of unconscionability ‘ “ ‘refers to “ ‘an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.’ ” ’ ” ’  [Citations.]  There is both a procedural and substantive aspect of unconscionability; the former focuses on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.  [Citation.]

‘ “Both procedural and substantive unconscionability must be present for the court to refuse to enforce a contract under the doctrine of unconscionability although ‘ “they need not be present in the same degree.” ’  [Citation.]  Essentially the court applies a sliding scale to the determination:  ‘ “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” ’ ” ’  [Citation.]  Absent conflicting evidence, the trial court’s unconscionability determination is a question of law subject to de novo review.  [Citations.]”  (Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1063 (Ramos); see also Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113–114 (Armendariz).)

Everything up to now has just been prelude. The Death Star is now fully operational. If you’re both a Rubble Bouncer and a Replatformer, be ready for the green light.

UPDATE: You will know things are well underway when Patreon revises its TOS again and removes the restrictions it inserted on December 20th before February 6th.


Speaking of hunting trolls

A word of advice: emailing us nothing but a link to a video and saying “this video is in violation” is entirely useless. If you want to help, then please put in the work that will actually reduce the workload of others.

This is what a proper copyright violation report looks like:

1. Copyright Infringement Notification
What is the issue?

 Copyright infringement (Someone copied my creation)

2. Copyright infringement – Who is affected?

 My company, organization, or client

3. Videos to be removed

URL of allegedly infringing video to be removed:

Describe the work allegedly infringed:
∗ The YouTube URL of my original video: 

∗ Where does the content appear?

Timestamps:
Where does your work appear in the targeted video?
 to
Where does it appear in your source video?
 to

Note that without the timestamps from BOTH the original and the violating video, the lawyers cannot submit the copyright infringement notification. So, if you’re not going to provide that, there is no point in providing anything.

I understand people are simply trying to help. But the key word there is “trying”, as it is vital to understand that actual help requires REDUCING the burden upon others, not INCREASING it. Which is why just bringing something to someone’s attention cannot reasonably be described as helping.



No despair nancies

If you’re going to be a despair nancy, just go away now. Take that weak, worrisome “I just fear bad things will happen to people who are braver than me” bullshit to Hell from whence it came. You are literally worse than useless. If you were truly concerned, you’d be praying for them in silence, you wouldn’t be issuing what could quite reasonably be seen as implicit threats in public.

Understand this is a hard and fast rule. If you are a demoralizer, if you are a black-piller, you WILL be banned. Period. And I don’t give an airborne rodent’s posterior if your fear is genuine. In fact, that would be all the more reason to banish you from our midst.

WE are not given a spirit of fear. If YOU are, then obviously you are not us.

If you can’t steel yourself and find the courage to stand in the ranks without flinching, then we neither need nor want you at our sides.