Friday, January 9, 2015

Can I Sue Bubblews?


 **I will add more information to this post as I come across it.**

Another popular question floating around out there is- 'can I sue Bubblews?' Well, that is a simple question with a rather complex answer. There is a lot of information to cover here, and I will try my best to keep it organized.

The Arbitration Clause
The Terms of Service on the Bubblews website, which was updated on December 11, 2014, states:

USERS UNDER THE AGE OF 18 ARE NOT ALLOWED TO REGISTER TO ACCEPT PAYMENTS WITHOUT THE WRITTEN APPROVAL OF THE USERS’ PARENT OR LEGAL GUARDIAN. USERS UNDER THE AGE OF 13 ARE NOT ALLOWED TO VISIT OR OTHERWISE USE THE SITE, AND WE DO NOT KNOWINGLY COLLECT INFORMATION FROM SUCH PERSONS.
A Supreme Court Judge

THESE TERMS OF SERVICE PROVIDES THAT ALL DISPUTES WILL BE RESOLVED BY BINDING ARBITRATION AND NOT IN COURT OR BY JURY TRIAL. YOU ALSO AGREE TO RELINQUISH YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS ACTION CLAIM YOU MAY HAVE AGAINST BUBBLEWS.

What exactly is an arbitration clause? An arbitration clause is used by many websites in an attempt to keep a client/user/customer from suing them in a court setting. This clause requires all disputes to be settled by means of an arbitrator. An arbitrator is an independent person or body officially appointed to settle a dispute. In other words, a business will include this clause in an attempt to keep themselves out of the sight of a Judge.

An arbitration clause will also prevent the public from learning whether any allegations against the company are substantiated, meaning even if a company is guilty of wrongdoings, you will not know.

There are Two Types of Arbitration Clauses
There are two types of arbitration clauses- a clickwrap agreement requires the customer/user/client to click “I Agree” or something similar in order to proceed registering or using the site; a browsewrap agreement is posted elsewhere on the website and doesn't require any affirmative action by the consumer. It is simply listed somewhere on the site, such as in the Terms of Service.

Is an Online Arbitration Clause Enforceable?
Because more and more websites are hiding their shady practices behind an arbitration clause, many courts are overlooking them. There are a growing number of individuals successfully suing website companies, despite the site's arbitration clause.

In Nguyen v. Barnes & Noble Inc., 2014 WL 4056549 (Aug. 18, 2014), the Ninth Circuit concluded that a conspicuous link to the site’s Terms of Use posted throughout the site and in close proximity to a checkout button was insufficient to find an arbitration agreement enforceable in the absence of a user’s express agreement to the online Terms. (This entire article can be viewed HERE.) This is not the only case out there where a claimant won a case against a website that had an arbitration clause.

In short, just because a website features an arbitration clause doesn't make them 100% protected from litigation.

Fraudulent activity can result in arrest and jail time.
Bubblews Fraud 
Many people are crying 'fraud' regarding Arvind Dixit's statement that made it clear that he misrepresented the amount of monies to be paid to his writers. In his 'Perseverence' post on January 2nd, 2015 on the Bubblews website, Dixit stated: "We reported lots of money that we didn't have. The money that you 'earned' never existed."

Now, let us take a look at the definition of fraud. Depending on where you live, the actual definition of fraud can vary. However, the general elements of fraudulent activity include:

1. A misrepresentation of a material fact- Dixit certainly did misrepresent the amount of money his writers were earning. He misrepresented the fact that the company had any money to pay at all. According to his own words, the money being earned never existed.

2. The material facts are being represented by a person who knows they are false. Dixit knew he the money never existed, yet did not disclose this fact to the website's users.

3. The misrepresentation was made to an individual or group who justifiably relies on the misrepresentation. Hundreds of users there relied on this promised money to support their families. This fact was made clear to Dixit on many occasions.

4. The user suffered an actual injury or loss as a result of his or her reliance on the misrepresented information. I have seen many accounts of international individuals that were unable to provide food for their families for a period because of monies being held by Bubblews.
1) a misrepresentation of a material fact; (2) by a person or entity who knows or believes it to be false; (3) to a person or entity who justifiably relies on the misrepresentation; and (4) actual injury or loss resulting from his or her reliance. - See more at: http://criminal.findlaw.com/criminal-charges/fraud.html#sthash.FYhVlC8q.dpuf
1) a misrepresentation of a material fact; (2) by a person or entity who knows or believes it to be false; (3) to a person or entity who justifiably relies on the misrepresentation; and (4) actual injury or loss resulting from his or her reliance. - See more at: http://criminal.findlaw.com/criminal-charges/fraud.html#sthash.FYhVlC8q.dpuf

Did Dixit commnit fraud? Many people would say 'yes.' Fraudulent business activity can be considered either civil or criminal in nature, depending on where you live.

Back to the Terms of Service
As most members of Bubblews can tell you, the site's Terms of Service are changed whenever a member of the staff takes a notion. Can a website change their Terms of Service as much as they like? Yes. HOWEVER, the website owners MUST notify its users of any and all changes made to the Terms of Service. Simply changing them does not mean the user automatically agrees to them.

Whenever a website changes its Terms of Service, it must notify its users and allow them the opportunity to agree to them. As stated by a group of judges for the Ninth Circuit- "Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side. Indeed, a party can't unilaterally change the terms of a contract; it must obtain the other party's consent before doing so... This is because a revised contract is merely an offer and does not bind the parties until accepted." You may read the entire article HERE.

Do not let the staff of Bubblews trick you into thinking that just because you stay with them as a user means you automatically agree to every change in their Terms of Use. 

Can I Sue Bubblews?
I will not say 'yes' or 'no', as I am not an attorney. I will say that according to every legal website I have studied in the past month, Bubblews could possibly be successfully sued or even found guilty of fraudulent activity.

As I dig deeper into this subject, I will update this post. Please check back in the future.

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