Well, I made a promise to @LordEntrails ... so, you're welcome, I guess?
I've previously posted some explainers on some fancy lawyerin' topics, and the two that are relevant to this brief(er) post are as follows:
Why do lawyers write like that?
Why does litigation cost so much?
One of the topics I keep seeing repeated, over and over, is the issue of standard contractual language. It can be frustrating looking at some of those conversations because people are looking at what are, for an attorney, a standard contractual provision, and assuming that it is somehow nefarious or ill-intended. This should hopefully illuminate some of the issues with this type of language- first, by looking at the issues generally, and then by examining one specific provision (the class action waiver) from the OGL. Unlike prior law-splainers, I'll try to keep the jokes to a minimum and keep this relatively short. Uh .... short for me.
A. Boilerplate and Belt & Suspenders.
Two phrases you might hear often when looking at the terrible morass of verbiage that is the usual contract are "Boilerplate," and "Belt & Suspenders." These are similar concepts, but not the same.
Boilerplate is the standardized language that you will see in contract after contract; it's the stock provisions that you will see in most (or all) contracts of a certain type. Even if they might not apply, you will see a lot of boilerplate.
Belt & suspenders refers, generally, to using multiple approaches to minimize risk (you're not just wearing a belt, but wearing suspenders as well!). For contracts, this refers to putting in multiple provisions that might overlap or even be completely redundant in order to minimize risk.
To give you an idea of how this would operate in practice, you will often see contracts that have "boilerplate" provisions. Most contracts of most types have a choice of law provision, a severance clause, a merger clause, and so on. Different law firms and companies might vary the language a little, but you will almost always see this in most types of contacts (is the contractual provision labeled controlling law, choice of law, or governing law etc.).
It's the same when a contract attempts to make sure there is protection- the belt & suspenders approach. A contract might have one large section that disclaims warranties, another section that limits liability, and then additional sections that specify the limitations of the representations of the contact and the ability to bring suit- and this would be in addition to sections that might prescribe how lawsuits might be brought.
B. The Class Action Waiver
In the OGL 1.2 Draft, paragraph 9(e), we see the following text:
Governing Law/Jurisdiction/Class Action Waiver. This license and all matters relating to its interpretation and enforcement will be governed by the laws of the State of Washington, and any disputes arising out of or relating to this license will be resolved solely and exclusively through individual litigation in the state or federal courts located in the county in which Wizards (or any successor) has its headquarters, and the parties expressly consent to the jurisdiction of such courts. Each party hereto irrevocably waives the right to participate in any class, collective, or other joint action with respect to such a dispute.
In this paragraph, we both boilerplate terms that most attorneys have probably seen thousands of times (if you look at most of the contracts you've entered into, you might have seen something similar) as well as an example of belt & suspenders. I am going to concentrate on the underlined portions- the parts that speak to the class action waiver.
First, this is standard boilerplate language. This was probably copied from other contracts.
Next, this is using belt & suspenders; notice that any dispute must be resolved solely and exclusively through individual litigation (belt). In addition, there is a specified waiver of class, collective, or joint action (suspenders).
Finally, the specific wording of the last sentence is an example of accretion (as I previously wrote about in the explainer about why attorneys write like that). There was a time when the issue was class actions, so the waiver was written just for class actions. Later, someone brought a lawsuit under a statute called the FLSA, which predates the class action and is technically a collective action, and a court found that the class action waiver didn't apply for collective actions ... so waivers added the collective action language. Finally, while class and collective (and representative, but... that's neither here nor there) were the main focus of these waivers, eventually people just aggregated lots of claims or lawsuits through joinder, which is there was eventually the joint action addition.
The thing is- this is just boilerplate, copied from contract to contract. For example, I don't think it would be possible to bring a collective action (which is for, inter alia, wage claims) involving the OGL- but that language is always included.
C. Fine. But does this matter?
Very briefly ... no, not really. The United States used to have all sorts of rules against champerty, maintenance, and barratry.* But we don't anymore.* Which means that, for example, it is relatively easy to help fund litigation that you're not a part of. In addition, for various reasons, it's actually really hard to bring a class action, and getting harder every year for most things- class actions are kind of like RICO on the internet; if you think something is a class action, you're probably wrong. These provisions, which are often used by employers against employees, have limited value when discussing contractual arrangements such as this one.
Noe of this is a value judgment about the use of certain boilerplate terms in contracts, but more an explanation as to why some people who have seen many contracts are less excited by these provisions.
*Fancy words about the old prohibition against helping to pay for someone's lawsuit, or helping fund a lawsuit because you have an interest in the outcome.
**Generally. Again, 50 states.
I've previously posted some explainers on some fancy lawyerin' topics, and the two that are relevant to this brief(er) post are as follows:
Why do lawyers write like that?
Why does litigation cost so much?
One of the topics I keep seeing repeated, over and over, is the issue of standard contractual language. It can be frustrating looking at some of those conversations because people are looking at what are, for an attorney, a standard contractual provision, and assuming that it is somehow nefarious or ill-intended. This should hopefully illuminate some of the issues with this type of language- first, by looking at the issues generally, and then by examining one specific provision (the class action waiver) from the OGL. Unlike prior law-splainers, I'll try to keep the jokes to a minimum and keep this relatively short. Uh .... short for me.
A. Boilerplate and Belt & Suspenders.
Two phrases you might hear often when looking at the terrible morass of verbiage that is the usual contract are "Boilerplate," and "Belt & Suspenders." These are similar concepts, but not the same.
Boilerplate is the standardized language that you will see in contract after contract; it's the stock provisions that you will see in most (or all) contracts of a certain type. Even if they might not apply, you will see a lot of boilerplate.
Belt & suspenders refers, generally, to using multiple approaches to minimize risk (you're not just wearing a belt, but wearing suspenders as well!). For contracts, this refers to putting in multiple provisions that might overlap or even be completely redundant in order to minimize risk.
To give you an idea of how this would operate in practice, you will often see contracts that have "boilerplate" provisions. Most contracts of most types have a choice of law provision, a severance clause, a merger clause, and so on. Different law firms and companies might vary the language a little, but you will almost always see this in most types of contacts (is the contractual provision labeled controlling law, choice of law, or governing law etc.).
It's the same when a contract attempts to make sure there is protection- the belt & suspenders approach. A contract might have one large section that disclaims warranties, another section that limits liability, and then additional sections that specify the limitations of the representations of the contact and the ability to bring suit- and this would be in addition to sections that might prescribe how lawsuits might be brought.
B. The Class Action Waiver
In the OGL 1.2 Draft, paragraph 9(e), we see the following text:
Governing Law/Jurisdiction/Class Action Waiver. This license and all matters relating to its interpretation and enforcement will be governed by the laws of the State of Washington, and any disputes arising out of or relating to this license will be resolved solely and exclusively through individual litigation in the state or federal courts located in the county in which Wizards (or any successor) has its headquarters, and the parties expressly consent to the jurisdiction of such courts. Each party hereto irrevocably waives the right to participate in any class, collective, or other joint action with respect to such a dispute.
In this paragraph, we both boilerplate terms that most attorneys have probably seen thousands of times (if you look at most of the contracts you've entered into, you might have seen something similar) as well as an example of belt & suspenders. I am going to concentrate on the underlined portions- the parts that speak to the class action waiver.
First, this is standard boilerplate language. This was probably copied from other contracts.
Next, this is using belt & suspenders; notice that any dispute must be resolved solely and exclusively through individual litigation (belt). In addition, there is a specified waiver of class, collective, or joint action (suspenders).
Finally, the specific wording of the last sentence is an example of accretion (as I previously wrote about in the explainer about why attorneys write like that). There was a time when the issue was class actions, so the waiver was written just for class actions. Later, someone brought a lawsuit under a statute called the FLSA, which predates the class action and is technically a collective action, and a court found that the class action waiver didn't apply for collective actions ... so waivers added the collective action language. Finally, while class and collective (and representative, but... that's neither here nor there) were the main focus of these waivers, eventually people just aggregated lots of claims or lawsuits through joinder, which is there was eventually the joint action addition.
The thing is- this is just boilerplate, copied from contract to contract. For example, I don't think it would be possible to bring a collective action (which is for, inter alia, wage claims) involving the OGL- but that language is always included.
C. Fine. But does this matter?
Very briefly ... no, not really. The United States used to have all sorts of rules against champerty, maintenance, and barratry.* But we don't anymore.* Which means that, for example, it is relatively easy to help fund litigation that you're not a part of. In addition, for various reasons, it's actually really hard to bring a class action, and getting harder every year for most things- class actions are kind of like RICO on the internet; if you think something is a class action, you're probably wrong. These provisions, which are often used by employers against employees, have limited value when discussing contractual arrangements such as this one.
Noe of this is a value judgment about the use of certain boilerplate terms in contracts, but more an explanation as to why some people who have seen many contracts are less excited by these provisions.
*Fancy words about the old prohibition against helping to pay for someone's lawsuit, or helping fund a lawsuit because you have an interest in the outcome.
**Generally. Again, 50 states.
