Berkson v. Gogo LLC
United States District Court for the Eastern District of New York
97 F. Supp. 3d 359 (2015)
Gogo LLC (defendant) sold in-flight Wi-Fi subscriptions that automatically renewed monthly, with terms of use including mandatory arbitration and a forum-selection clause hyperlinked near the sign-in button, but Gogo did not require a signature, did not otherwise draw users' attention to the hyperlink, and never emailed the terms to new subscribers. Adam Berkson (plaintiff) sued as a class representative, alleging Gogo misled customers into believing they were buying a single month of service rather than an auto-renewing subscription; Gogo moved to compel arbitration and transfer venue based on its terms of use.
Whether a website's sign-in-wrap terms of use, including an arbitration and forum-selection clause, are enforceable against a user who signed up without a signature and without any prominent notice drawing attention to a hyperlink containing those terms.