The facts in Salameno v. Gogo, 16-CV-0487, NYLJ 1202762386338, at 1 (EDNY July 7, 2016) are straightforward. Gogo is in the business of providing Internet use on airplanes. To take advantage of Gogo’s services, a customer must purchase a subscription plan or Internet pass, which can be used on more than 2,000 commercial aircraft on more than 10 air carriers. Plaintiffs were repeat Gogo customers who utilized Gogo’s Internet service over a period of months or years. Plaintiff’s complaint alleged (on behalf of themselves and others), that Gogo had violated consumer protection statutes, and asserted claims for contract breach, fraud, promissory estoppel and unjust enrichment. Gogo, among other relief, moved to compel arbitration.
The court made this finding in the absence of any proof that the customers, dissatisfied Gogo users, had any actual knowledge of the clause. The court’s “assumed to have been aware” standard is a slippery slope. Not only because one can make assumptions about a number of things when visiting a website, but also since the general public has little or no experience with contractual waivers created by clicking on a merchant’s website. Along with familiar warnings such as “buyer beware,” online customers affected by the practice of inserting “hidden” terms and conditions, should be cautioned to “click at your peril.” While individuals may be generally aware of privacy settings when visiting websites such as Facebook, together with the consequences of posting material on social media, their legal sophistication, at best, is assumed.
Findings and Lessons
Gogo, reflective of the way business is conducted in cyberspace, is instructive for a number of reasons.
Knowledge. Finally, the court suggested that the three methods of notice given to the plaintiffs ‘ the email confirmations referring to Gogo’s terms of service and entry into repeated clickwrap agreements and sign-in-wrap agreements ‘ in effect, constituted belts and suspenders.
Further, the claim was arbitrable since plaintiffs’ allegations concern both the performance and operation of the website service. The arbitration clause also had an opt-out provision in capital letters that could have been selected within 30 days of any “particular interaction with the site or the service.” It also provided a forum selection clause, to the effect that any claim not resolved under the arbitration clause is to be resolved by a court of competent jurisdiction in Chicago, Ill. Thus, had plaintiffs complied with the clause by opting out, they could have avoided the litigation at bar. There is no indication in the decision that any plaintiff attempted to apply, or challenge the timeliness requirements of, the opt-out clause.
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