Anyone who acts to protect themselves from a clause buried in the Biketown contract that prompts users to waive their jury-trial rights is protecting themselves permanently, the bike share operator says.
At issue is a “binding arbitration” clause in section 15 of the long rental agreement to which people must agree in order to use the public system. Such clauses, which are designed to prevent class actions and other customer lawsuits, are increasingly common for credit card companies and other corporations but are rare among public bike share systems.
But as we reported Thursday, the contract includes a way for Biketown users to protect themselves: you have to send an email with a particular subject line to a particular email address mentioned in the contract.
In a pair of emails to BikePortland Thursday and Friday, a spokeswoman for Biketown’s New York-based operator Motivate offered two clarifications:
1) Permanent protection: If someone uses Biketown — whether for a single trip, a single day, or as part of an annual membership — and then sends the necessary email within 30 days, they’ll be protecting their jury rights for anything that might go wrong on all future rides. “If an individual opts out once we will honor that individual’s opt-out for future pass purchases,” Motivate Director of Communications & External Affairs Dani Simons wrote.
2) Multiple chances to act: If someone fails to send the required email within 30 days of their first use and then uses the system again, they get another 30-day chance to send the email and permanently protect their rights. “If someone lapses and then rejoins they will have an additional 30 days to decide if they want to opt-out,” Simons wrote.
It’s worth noting that though these promises come from a Motivate executive, they’re not actually written into the contract that Biketown continues to force users to agree to. Motivate might someday argue that Simons’ commitments in the media now aren’t legally binding.
Here’s the section in question:
You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of Your decision to opt out to email@example.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of Your first use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs.
Mark Ginsberg, a Portland plaintiff’s attorney who specializes in biking issues, noticed the clause on Wednesday. After our coverage Thursday morning, Oregonlive and Willamette Week have followed up. Ginsberg said Friday that KATU-TV is running a piece of its own Friday evening.
On Thursday we did a scan of various public bike-sharing user agreements around the United States and found that the systems in New York City, Chicago, Washington D.C., Boston, Philadelphia, the San Francisco Bay and Los Angeles all lack binding arbitration clauses. The only ones we could find that do have them are in Portland, Seattle and Phoenix.
— Michael Andersen, (503) 333-7824 – firstname.lastname@example.org
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Michael Andersen was news editor of BikePortland.org from 2013 to 2016 and still pops up occasionally.