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2 min read

Tawkify's Concealed Arbitration Requirement Challenged in Court

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In a recent class action lawsuit against Tawkify, Inc., a popular dating service, plaintiff Jeremy Stanfield challenged the validity of the company's arbitration requirement outlined in its terms of service (TOS). This case delves into the court's determination of the unconscionability of Tawkify's arbitration provision and highlights the distinguishing factors from a similar case involving 23andMe, Inc.

Concerns Regarding Tawkify's TOS

The court acknowledged that Tawkify's arbitration requirement was presented to users as a "take-it-or-leave-it" provision, leaving no room for negotiation or opting out. What further troubled the court was the manner in which the provision was concealed on the last page of the TOS under the section labeled "Governing Law." The lack of clear labeling or prominent indication of the arbitration requirement undermined the users' awareness of its existence.

Another significant factor leading to the court's decision was the lack of specificity in Tawkify's arbitration provision. While users were bound to arbitrate disputes, the provision failed to outline any specific arbitrator or rules to govern the process. Consequently, users would be left to navigate the legal system to determine the appropriate arbitrators and applicable rules necessary for dispute resolution. Only the users were seemingly obliged to arbitrate, while Tawkify itself had no such corresponding obligation. This lopsided nature of the arbitration agreement had no reasonable parameters defining Tawkify's exemption from the mutual obligation to arbitrate, raising concerns of fairness and equity.

Evaluating Unconscionability of Arbitration Requirements

The court emphasized that the evaluation of an arbitration requirement's unconscionability is heavily reliant on the contextual circumstances in which the contract was formed. California law, as referenced in the case, mandates that courts provide parties with a reasonable opportunity to present evidence and examine the context of the contract formation process.

A notable reference case is Tompkins v. 23andMe, Inc., where the court concluded that the arbitration provision within 23andMe's TOS was not unconscionable. However, the Tawkify case presents distinguishing factors that render its arbitration requirement procedurally and substantively unconscionable. As mentioned earlier, Tawkify's provision was presented on a "take-it-or-leave-it" basis, depriving users of negotiation or opt-out options. 

The provision's concealment on the last page, without any explicit labeling or highlighting, diminished user awareness of its existence. Furthermore, the absence of specified arbitrators and rules placed users in the vulnerable position of being forced to engage in litigation to determine these crucial aspects. These discrepancies highlight the imbalances and injustice embedded within Tawkify's arbitration agreement.

Based on the procedural and substantive unconscionability of Tawkify's arbitration provision, the court ultimately denied the company's motion to compel arbitration. This case sheds light on the importance of clarity, fairness, and transparency when it comes to dispute resolution clauses in consumer contracts. Users should have the ability to make informed decisions and have confidence in the agreements they enter into, promoting fairness and justice in the realm of consumer services contracts.

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