Jun 29, 2012

Strava Legal

This is a slightly out of character post for this blog and perhaps one of the more boring ones for most of you, but I felt the need to say the following. Given that Strava is such a huge part of our cycling community, especially here in the Bay Area, this is still somewhat cycling related, tho tenuously, I admit.

Yesterday, this blog post was brought to my attention by a teammate. And in case it gets taken down, it was also picked up here for whatever reason. 

The author of the blog is Dean Frieders, an attorney in  Illinois. Personally, I wasn't too fond of the absurdities he decided to present as some legal analysis worth merit, so I felt the need to reply. The problem with Dean's blog is that he likes to really be in control and moderate each and every comment. So much so, that he edited my first comment without even asking me. My last comment, which was made last night hasn't yet made it to his blog, while another comment posted later is already there. Perhaps Dean is simply taking his time trying to think of a witty response, or he just had enough of me and decided to silence me through moderation. Or maybe I've jumped the gun and he's going to release my comment at any moment. In any event, I figured I'd recreate our little exchange here. The first comment made by me is in the original form, not the edited one released to Dean's blog. I haven't edited any of the comments, other than a few annotations in brackets.

Vitaly:
You're not a lawyer, are you? [Before I found out he actually was] If you are, by some miracle, please turn in your law license and never set foot in a courtroom again.

I'll do you the favor of taking this apart piece by piece:

" Strava is a big company, with significant revenue." I'd like to see where you pulled this from? It's a startup funded mostly by investor $. Do some research before going out and making asinine statements.

Users getting sued by users:
Please, explain to your reader what would the alleged "cause of action" be against a fellow Strava user. Is it negligence? In which case the plaintiff would have to establish duty, breach of duty, proximate cause and damages. What duty of care do I owe another member/user of Strava? I certainly can't think of an intentional tort that fits into your made-up liability scheme. So, no, users cannot get successfully sued by other users.
           
"What is to stop someone who is injured while trying to beat your Strava time from suing you?  Nothing." - This statement is deceptive. Yes, anyone can file crap in court, that doesn't mean that it states a valid claim and there are thankfully statutory provisions which allow for sanctions in such actions.

"In Strava’s case, they will undoubtedly assert that the decedent released any claims against Strava by agreeing to their terms and conditions, which include a waiver/release of claims." - I had no idea you were a member of the Strava defense team. I certainly don't have great insight into the defense either, but there is a difference between having a claim dismissed on a demurrer, for failure to state a cause of action (which is what Strava is likely to do) and assert the waiver as an affirmative defense, thereby admitting that the plaintiff has stated a valid claim, but that the claim is defeated by a contractual provision. The latter being called a motion to dismiss.

"Of note, Strava could have chosen to include language here to waive claims against other riders, but did not do so." - I'm not so sure that it could have done that. It would seem that for me as a Strava user to waive my claim against another Strava user, the users would have to be in some sort of horizontal privity of contract.

Indemnity:
Here, it's absolutely clear you have no clue what the hell you're talking about. For the indemnity to kick in, there has to be a valid claim. If you do something on Strava which results in a valid claim, then you should pay the resulting damages. California Civil Code §2772 provides: "Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person." If there is no legal consequence, there is no way that one party can invoke the indemnity provision. 

As an analogy, I give you Craigslist. If you post a discriminating advertisement and Craigslist gets sued, under an indemnity provision, you would have to pay the judgment and the attorneys fees if a judgment is rendered against CL as a result of your post. However, if there is no cause of action, i.e., no claim, there is no "harm"/consequence from which you have to indemnify Strava or CL. 

You were apparently too busy reading what the indemnity provision says to realize what it doesn't say. The provision doesn't say you agree to DEFEND Strava from any claims. If that was the case, I would agree with you that it's a horrible provision because users would be on the hook from the outset. As worded, the indemnity provision is fine and not overbearing. 

Strava should NOT take out the indemnity provision simply because you are too short-sighted to see its broader implications. If someone slanders someone in a comment on Strava, or harasses someone on Strava in a way that could be actionable in court, and indemnity provision is a must!

Dean:
Vitaly,
It is cute that you tried to submit the same comment under a number of different usernames. One of the wonderful things about the bully pulpit of a blog is that I can see things like usernames, IP addresses and the like, and can see when someone is acting in such a fashion. I hope you don’t mind that I edited your post–I’m not certain why your comment was dripping with quite so much venom, but I decided to spare you from looking more inconsiderate than you otherwise would look, by deleting the ad hominum [sic] comments.

As for your question about what cause of action one Strava user may have against another, I would assume that it would not be an intentional tort. It is unlikely that there would be assault or battery arising out of a Strava post. Given your mastery of the English language and our system of laws (shown in large measure by the colorful comments that I edited out of your post), I’m sure you understand the difference between intentional torts and negligence. I don’t think it is too terribly hard to envision a circumstance where one could violate even the most basic duties of care between two unrelated parties by creating a Strava route that exposes another rider to an unreasonable risk of harm. Perhaps more importantly, you missed the whole point of the post. I’m not suggesting that the lawsuits against Strava are meritorious. Writing a blog post with detailed legal analysis as to Strava’s risk might be interesting to me, but would be decidedly less interesting for my readers. The post is about identifying a risk that very few Strava users out there recognize…the risk of litigation arising out of their use of the app. Is litigation likely to be initiated, or likely to be successful on a user-to-user basis? Hopefully not. But it does not take any stretch of the imagination to see how such litigation could result, nor does it take a great legal mind to devise a theory upon which such a claim could be based. 

Can we protect against every petty, small-minded or frivolous lawsuit out there? No–sadly, we cannot. But Strava users are doing themselves a disservice if they don’t at least consider the ramifications of their actions. Strava has certainly considered it…hence their terms and conditions. When someone gets sued, they may be comforted to know that the claim is subject to dismissal…but I’d prefer to not be surprised by a lawsuit in the first place. It is only by identifying risks that we can minimize or mitigate them. The idea of the blog post is to get people to think…not to give legal advice.

Am I a member of the Strava legal team? No–afraid not. If I were among Strava’s legal counsel, their terms and conditions would be far more precisely drawn. But does it take some insider knowledge to forecast that they will assert the waiver as a defense? Not really. Will that defense be asserted as a motion to dismiss, an affirmative defense or something else? It will likely be asserted in just about every way they can assert it. Here in Illinois, an attorney would likely start with a motion to dismiss claiming that the lawsuit is affirmatively barred by other legal matter. Oh, and “admitting that the plaintiff has stated a valid claim” isn’t an entirely accurate description, Vitaly…you’re simply admitting that for purposes of the motion. It is not an admission that can be later used against you.

If you genuinely believe that indemnity does not apply until a judgment is entered, or that Strava could not invoke the indemnity, as it is worded, to force a user to pay their legal fees incurred in defending a suit based on user conduct (whether it be from comments posted on the website or from routes posted on the website), then…well…there’s no polite way to say this. You’re wrong. I agree that the indemnity is poorly worded, but it appears to be Strava’s intention to put users on the hook for any claims or damages arising out of user conduct, as they say “including reasonable attorneys fees.” The reference to reasonable attorneys fees, while inartful, undoubtedly refers to Strava’s own legal fees. (As an aside, I have no idea why people do not understand that slander refers to oral statements, and libel refers to written statements. But unless you’re uploading insulting audio clips to Strava, it will be pretty difficult to slander someone on their website.)

Anyhow, thanks for writing in. It is clear that the post did what it was intended to do, by making you think. Even though I don’t agree with your analysis (or your rhetorical style, in resorting to insults in the absence of strong arguments), I appreciate that you thought about the issues.

Vitaly:
I actually tried to submit only once, but then was prompted to login (I forgot I had a WP login). Didn’t see it pop-up, so tried to put it in again, then saw it was awaiting moderation (that’s pretty lame by the way). Computer glitch, nothing more. I’m glad you only let one through. I hate when the whole “multiple-post” thing happens. Tho I wish you didn’t edit my reply, because now I feel like I have to put the unedited version on my own blog and rip this apart word by word. But I digress.

Why did you delete the part where I corrected you and said that Strava was a startup funded by investor $? 

“I don’t think it is too terribly hard to envision a circumstance where one could violate even the most basic duties of care between two unrelated parties by creating a Strava route that exposes another rider to an unreasonable risk of harm.” – That’s the point I’m making. There CANNOT be a duty of care between unrelated individuals. “Duty of care” is not some ambiguous thing. It’s a term of art defined statutorily or via common law. It simply does not exist in the context in which you present it. Period. If you think I’m wrong, please provide an example or a case that says otherwise. 

“Here in Illinois, an attorney would likely start with a motion to dismiss claiming that the lawsuit is affirmatively barred by other legal matter. Oh, and “admitting that the plaintiff has stated a valid claim” isn’t an entirely accurate description, Vitaly…you’re simply admitting that for purposes of the motion. It is not an admission that can be later used against you.” – Illinois! How fortunate, one of the states where I’m admitted. In Illinois, a lawyer worth his salt would first file a 2-615 motion to dismiss for failure to state a cause of action before going on to file a 2-619 motion to have the case kicked on an affirmative basis. Of course, there’s this unique 2-619.1 motion, but some judges are not keen on that (Cook County’s Kathy Flanagan comes to mind) in my experience, as in the 615 motion, you’re basically saying the plaintiff is full of shit, and in a 619 motion your saying “the plaintiff has a cause of action but is SOL because of….” But this is one of those side issues that’s not really central to your post anyway.

Thank you for the slander/libel correction, I of course mean the latter and have no issue admitting I was wrong in that statement. 

As I said in my original reply post, if the indemnity provision has the word “defend” in it, you’d be correct in some of what you wrote. As drafted, however, it does not obligate the user to pay for the ongoing defense. As far as whether the fees to have a frivolous suit dismissed could be charged to the user via this indemnity agreement, that’s a far stretch. You realize what type of legal gymnastics would have to happen here for this to even come into play, right? 

As I read this: “claim or demand, including reasonable attorneys’ fees” The fees go with the “claim or demand,” and don’t pertain to the cost of the defense. This seems pretty clear to me, but if you feel it’s ambiguous, that’s great! You probably know that ambiguities in indemnity provisions are interpreted against the drafter, as all contractual provisions. 

You claim that your blog post is a service to Strava users, but it isn’t. It doesn’t even come close. You raise a bunch of non-meritorious issues. If the main point you are trying to raise is that using Stava could expose someone to a frivolous lawsuit, well unfortunately so can doing pretty much anything else, from taking out the garbage to washing your windows. Congrats on being one of those sensationalists with no merit or substance.

Dean:
You’re still missing the point. I don’t have a particularly compelling need to determine which of us is the bigger e-badass of an attorney via blog comments. If you feel compelled to “rip this apart word by word,” then by all means, be my guest. One of the marvels of the internet is that it can be a forum for anyone, no matter how uninformed they may be. If you’re on a cycling blog and feel compelled to name drop and cite to the Code of Civil Procedure–well gosh, I just can’t help you there. Perhaps I can start a legal blog and we can debate this further…but since I practice law here in Illinois on a daily basis, I really don’t have a need to justify my professional abilities online. I’m really not sure why you have such a persistent bee in your bonnet. Frankly, I’ve never understood why people posting online feel a need to attack others, rather than have a reasonable, rational dialogue.
 
If you’re comfortable looking at an agreement that obligates you to indemnify a company based upon your conclusion that the language is ambiguous and will thus be construed against the drafter, again, more power to you. The risk that I’m describing in my post is a real potential risk–it certainly is no more tenuous of a legal argument than the underlying ‘real’ claim. Would such a claim survive? Will the underlying claim survive? The likely answer to both questions is no. That said, Strava’s terms show that they are thinking about the issue. Strava’s users should be thinking about the issue too.

Vitaly (this is the last comment that as of 8:24PDT has not yet been released from moderation):
I'd be more than happy to explain why what you wrote made me so angry, and why, as you say it, I have a "bee in my bonnet." The reason I am angry is because what you wrote is irresponsible and borderline unethical. In the above reply, you agree with me that claims predicated on acts in your original post would likely not survive. So why sensationalize the issue? Why make such crazy assumptions? Why be vague with the law, leading those who don't know better to believe that what you write actually has some meritorious legal analysis behind it? Yes, it's a cycling blog, but you are a lawyer. We are professionals 24/7, as you very well know, and just because you sit down to write a cycling blog, doesn't mean you can take your lawyer hat off. You put forth a specious legal argument I challenged, and you have twice now failed to address the challenge head on.


I asked you to give me an example, or a case, where two people, linked only by the fact that they use the same online service would be in such a relationship that would give rise to a duty of care, breaching which would be actionable in negligence (assuming the proximate cause and damages requirements would be met). Twice you have not bothered to address that argument, which is the central point of your blog. 


As far as the indemnity argument goes, here's the indemnity language from Wordpress: 


"You agree to indemnify and hold harmless Automattic, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement." 


Where's the post warning bloggers they might be in trouble? Or is that coming in the next installment? Someone reading your blog could take it a legal advice, go out and sue Strava, lose, get slapped with sanctions, then sue Automatic, which would seek contribution from you for whatever judgment results. Sounds absurd, right? 


Coming full circle, the reason I'm angry is that lawyers like you give the rest of us a bad name. I don't post anonymously. You know my name and who I am, and what I do (if you bothered to use Google). But I can understand why you would want your name hidden. [Before I realized that BikeRumor had his name front and center, but it's nowhere on his blog] 


Do us all [attorneys] a favor and take this post down, please. 

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