Portland's new bike-share system contains an extraordinary clause in the user agreement: It bars riders from suing BikeTown in court.
Buried in the BikeTown user agreement is a clause where riders waive their right to a civil jury trial if something goes wrong on a bike-share ride. The contract forces them into a mandatory arbitration instead.
"You agree that any dispute or Claim relating in any way to Your use of the Services will be resolved by binding arbitration, rather than in court," the agreement reads.
Private arbitration clauses in user agreements like Biketown's are used to shield corporations from consumer lawsuits, says Mark Ginsberg, a Portland-based personal injury attorney and bicycling advocate.
"Private arbitrations are typically run by these private arbitration companies," said Ginsberg. "They are very pro-corporation biased. They are not fair, they are not level playing field. They are not even close."
Ginsberg says consumers are also barred from speaking about or appealing the decisions.
The agreement goes on to bar riders from joining a class-action lawsuit, or from receiving a jury trial.
“YOU AND MOTIVATE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a Claim proceeds in court rather than in arbitration You and Motivate each waive any right to a jury trial.”
The only way to ride a BikeTown bike and not lose your right to sue? Opt out of the deal within the first 30 days of riding. The contract reads,
“You have the right to opt out and not be bound by the arbitration and class action waiver provisions…by sending written notice of Your decision to opt out to firstname.lastname@example.org with the subject line, ‘ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.’”
But Ginsberg says this will do little good, because very few customers are willing to muddle their way through pages of dense legalese.
"You don't read them," Ginsberg says. "Admit to yourself, you don't read them."
The clause in the contract posted by Ginsberg to social media last night and first reported today by BikePortland.
In an email, PBOT spokesmen Dylan Rivera said the city was not involved in crafting the user agreement created by the vendor, a New York-based company called Motivate.
"Throughout the process of launching BIKETOWN, we have been careful not to discuss the ins and outs of the contract negotiations," Rivera tells WW in an email. "We feel this is important in order to preserve the integrity of both past and future negotiations. We do encourage all people who use BIKETOWN to read the user agreement."
In a statement, a Motivate spokesperson defended the company's practices.
"We believe arbitration is the most efficient and expedient process for resolving disputes," Motivate tells WW in a company statement. "The process assigns a neutral arbitrator to each case and provides an option for either part to have a new arbitrator assigned if there is any doubt about the first one. And, consistent with best practices we provide an opportunity for any members who prefer not to arbitrate to opt out."
Mandatory arbitration clauses, which are used by companies from American Express to Microsoft to Pokémon Go, have recently received increased public attention due to a New York Times investigation last year. But they remain a powerful tool in the hands of corporations.
Ginsberg says that mostly, he's disappointed by the language in the agreement.
"I really do want Biketown to succeed," Ginsberg says. "[But] that type of agreement is not needed to run a bike-share program."