Posted By Elise Friello, Lemon Law Arbitration Program Manager, Friday, July 22, 2016

Out with the days of gaming from the convenience of your couch and in with the days of gaming from the comfort of your sneakers. Since Pokémon GO was first released earlier this month many conversations have turned to safety concerns for those using the augmented reality game. Other conversations, however, have turned to legal rights for those agreeing to Pokémon GO’s Terms of Service.

Like most agreements, whether they be for social media and music sites or mobile devices, the consumer must agree to arbitrate their dispute individually rather than bring a lawsuit in court. This means that as soon as a consumer downloads an application or buys a device they must waive their right to sue or give up using that application or device. Unfortunately, a consumer may miss a few important points when they become irritated about this sue-versus-use dilemma.

• First, even if the consumer retains their right to sue they may still be required to bring a lawsuit in whatever far-away jurisdiction the agreement indicates and be subject to the laws of that state. (Hint: The selected jurisdiction is for the company’s convenience and not the consumer's, unless you live in sunny California.)
• Second, not all agreements have the same effect. It may not be a sue-versus-use situation. In fact, with Pokémon GO, there is a section that allows a consumer to opt out of the arbitration provision of the agreement by writing a letter or sending an e-mail within 30 days. Yes, sending an e-mail! This means that consumers must carefully read the dispute resolution section of every agreement and be proactive in informing themselves of their rights.
• Third, not all alternatives to court strip consumers of their rights. While arbitration is unfamiliar to many, the process can be a cost effective way to resolve disputes in a quicker and less burdensome manner than litigation for the consumer, not just for the company. Additionally, the arbitration hearing is typically held in the county where the consumer resides, not a jurisdiction chosen by the company. For example, New York State’s Lemon Law Arbitration Program provides consumers whose new or used motor vehicles turn out to be “lemons” with a fair forum to settle disputes within 45 days of filing. Consumers are often able to avoid many of the disadvantages of going to court, including finding and then paying for an attorney, as well as waiting several months for an opening in the court’s calendar.
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Ultimately, the decision on whether to opt out of Pokémon GO’s arbitration provision lies with the consumer. In the sue-versus-use dilemma many consumers have no alternative if the application or device is essential. With Pokémon GO’s Terms of Service, at least a proactive and informed consumer can make a choice on how to best protect their legal rights.

Feel free to contact me at elise@nysdra.org with any questions.