By: Nicholas J. Roselli, Esq. of the Law Offices of Roselli &  McNelis

Pokemon GO, the new must have app, is an augmented reality mobile game developed by Niantic, Inc., which makes use of GPS and your cell phone or compatible device’s camera. Gameplay involves players capturing, battling, and training virtual creatures, called Pokémon, who appear on the device’s screen as if they were actually there in front of the user.  Pokemon GO has now become a global phenomenon, and playing can be highly enjoyable and addictive for people of all ages. However, users should aware that by agreeing to the App’s terms of Service in order to play, they are waiving important legal rights.

Stories of Pokemon GO’s  surging popularity and even increased sales for local businesses fortunate enough to serve as “PokeStops” or “Gyms “, increase by the day.  Unfortunately, stories involving players suffering injury, death, or even criminal trespassing penalties as a result of game play continue to mount as well.  Augmented reality applications and programs are a relatively new area of technology, especially in terms of use on such a Global scale. The Courts are just beginning to address issues regarding the liability of companies that provide such augmented reality applications and programs.

When users download the Pokemon GO app they are prompted to agree to the Terms of Services prior to initiating game play.  Many users and consumers don’t read the Terms of Service for products and applications because they are lengthy and often difficult for the average person to fully understand.  Within the Pokemon GO Terms of Service is the following paragraph:

“ARBITRATION NOTICE: EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “AGREEMENT TO ARBITRATE” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND NIANTIC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.”

Now let’s face it, Binding Arbitration Agreements in consumer agreements are not new. Chances are, there is one buried in your credit card, phone service, car sale, or even your employment agreement that you have agreed to. Unfortunately, many consumers do not realize the implications of these agreements. By agreeing to a Binding Arbitration, you are agreeing to waive your Constitutional Right to a trial by jury. The terms of how the arbitration will be conducted and how arbitrators are to be chosen  are not negotiable and the terms often favor the corporations and employers who assert them. With the Pokemon GO Arbitration Notice, you are also foregoing your right to serve as a class member in any purported class action lawsuit. The good news however, is the language of the notice clearly states you have the option to opt out of this Arbitration Agreement and still use the app. This is an option that is not often available in other Arbitration Agreements that essentially leave you with a take it or leave it choice.

With the rise of augmented reality mobile games that make use of devices that often contain your  personal information and data, do you really want to give up your right to a jury trial should your personal information be compromised or should you suffer injury or damages as the result of using  the app. For these reasons alone, Pokemon GO users should take advantage of the option to opt out of this Arbitration Agreement.

To retain your rights to a jury trial and to join a class action, You can e-mail Niantic at “termsofservice@nianticlabs.com” with an “Arbitration Opt-out Notice” making it clear  that you wish to opt  out. You can also mail the opt out notice to, 2 Bryant St., Ste. 220, San Francisco, CA 94105.

But be aware, time is of the essence. If you don’t provide Niantic with an Arbitration Opt-out Notice within 30 days following the date you first accept the Terms, you will be deemed to have knowingly and intentionally waived your rights to litigate as described above.

To discuss how your legal rights might be affected by this Application or for other legal inquires, don’t hesitate to Contact the Attorneys at The Law Offices of Roselli & McNelis