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Website Arbitration Clauses
In a recent U.S. Eastern District decision, the court compelled arbitration of a dispute based on language contained in the Terms of Use on an Internet access provider's website. The language contained an operative arbitration clause that the court found binding on the plaintiffs. Plaintiffs claimed the clause was not apparent to them and therefore they never provided any consent to arbitrate.
'Gogo'
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.
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