## Facts

- Gogo provided in-flight Wi‑Fi through subscription plans purchased via an onboard web portal.
- Plaintiffs Adam Berkson and Kerry Welsh alleged Gogo deceptively sold “Monthly Service” by failing to adequately disclose automatic, recurring monthly renewal and charges.
- Gogo’s online terms of use (accessible by hyperlink) included an arbitration clause, a class-action waiver, and an Illinois forum-selection clause.
- Welsh enrolled using an interface that displayed “I agree to the Terms of Use” with a hyperlink and a checkbox, but the checkbox was not required to proceed.
- Berkson enrolled using a later interface stating, in smaller text beneath a prominent “Sign In” button, “By clicking ‘Sign In’ I agree to the terms of use and privacy policy,” with the terms accessible by hyperlink.
- Users could purchase access without being required to open, scroll through, or affirmatively acknowledge the terms.
- Gogo did not send subscribers an email providing the terms or prominently confirming auto-renewal or the arbitration/forum provisions.
- Plaintiffs brought a putative class action asserting consumer-protection and contract-based claims; Gogo moved to compel arbitration/dismiss and to transfer venue to Illinois, and also made individual settlement offers to the named plaintiffs.

## Issues

1. Whether the hyperlinked online terms provided reasonably conspicuous notice and manifested assent sufficient to form an enforceable agreement to arbitrate and to litigate in Illinois.
2. How “sign-in-wrap” and similar hybrid online interfaces should be analyzed for notice and assent under common-law contract principles.
3. Whether unaccepted individual settlement offers to named plaintiffs mooted the case or eliminated Article III standing before class certification.

## Decision

- The court denied Gogo’s motion to compel arbitration and dismiss.
- The court denied Gogo’s motion to transfer venue to the Northern District of Illinois.
- The court held the arbitration and forum-selection clauses were not binding because plaintiffs lacked reasonably conspicuous notice and did not unambiguously assent to the terms.
- The court held the action was not moot; unaccepted settlement offers did not extinguish the named plaintiffs’ claims or the live controversy in a putative class action.

## Legal Principles

- Enforceability of online standard terms turns on whether a reasonably prudent user received reasonably conspicuous notice of the terms and unambiguously manifested assent.
- A mere hyperlink to terms, without clear presentation and a meaningful opportunity to review, may be insufficient to establish assent, especially where the interface allows completion of the transaction without a required affirmative act tied to agreement.
- Online contract forms can be assessed along a spectrum (browsewrap, clickwrap, scrollwrap, and sign‑in‑wrap), with “sign‑in‑wrap” designs requiring careful scrutiny of layout, font, placement, and surrounding context to determine inquiry notice.
- Arbitration clauses, class-action waivers, and forum-selection provisions are material terms and generally require clear notice and assent before enforcement in consumer adhesion contexts.
- A defendant’s unilateral attempt to satisfy a named plaintiff’s individual claim through unaccepted offers does not moot a putative class action or defeat standing before class certification.

## Conclusion

The court declined to enforce Gogo’s arbitration and Illinois forum-selection provisions because the sign-in and checkbox interfaces did not provide reasonably conspicuous notice or require an unambiguous manifestation of assent, and it further held that unaccepted “pick-off” settlement offers did not moot the putative class action.


Berkson v. Gogo LLC, 97 F. Supp. 3d 359 (E.D.N.Y. 2015)