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Berkson v. Gogo LLC

United States District Court for the Eastern District of New York

April 8, 2015, Decided; April 9, 2015, Filed




Jack B. Weinstein, Senior United States District Judge:

Table of Contents

I. Introduction

II. Procedural History

III. Facts

A. Defendant Gogo

B. Monthly Service Charge

C. Plaintiff Welsh

1. Sign-In Portal in August 2011

2. Create Account Page

D. Plaintiff Berkson

1. Sign-In Portal in September 2012

2. Create Account Page

E. Relationship Between Gogo Inc. and Gogo LLC

IV. Assessing Attributes Of The "Average Internet User"

A. Studies

B. Anecdotal Evidence

C. The Reasonable Communicativeness Test

V. Contract Formation And Assent

A. Legal Research and Scholarship

1. "Informed Minority" Hypothesis

2. American Bar Association Working Group

3. Traditional Contract Doctrine and the Internet Age

B. Law

1. Choice of Law

2. Common Law Contracting

a. Acceptance

b. Adhesion Contracts

c. Unconscionability

i. Procedural

ii. Substantive

d. Material Terms and Material Alterations

e. Notice

3. Electronic Adhesion Contracts

a. Browsewrap

b. Clickwrap

c. Scrollwrap

 [**2] d. Sign-in-wrap

e. General Principles

4. Assessing Validity and Enforceability of Electronic Adhesion Contracts

C. Application of Law to Facts

1. Plaintiff Welsh

2. Plaintiff Berkson

3. Generally

VI. Constitutional Standing

A. Law

1. Motion to Dismiss Standard

2. Putative Class Representatives Cannot Be "Picked Off" by Defendants

a. Supreme Court Cases

i. Deposit Guarantee Nat'l Bank v. Roper

ii. Genesis Healthcare Corp. v. Symzcyk

b. Relevant Court of Appeals Rulings

i. Offers of Judgment Must Fully Satisfy Claims

ii. Acceptance of an Offer of Settlement Does Not Necessarily Moot a Case or


c. Other Court Decisions

3. Putative Class Representatives Cannot Be Paid Off By Sidestepping

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97 F. Supp. 3d 359 *; 2015 U.S. Dist. LEXIS 46899 **

ADAM BERKSON, individually and on behalf of all others similarly situated, and KERRY WELSH, individually and on behalf of all others similarly situated, Plaintiffs, - against - GOGO LLC, and GOGO INC., Defendants.

Subsequent History: As Corrected July 1, 2015.

Class certification granted by, Motion granted by Berkson v. Gogo, LLC, 2015 U.S. Dist. LEXIS 163405 (E.D.N.Y., Dec. 4, 2015)

Motion granted by, Settled by, Class certification granted by, Injunction granted at, Costs and fees proceeding at, Dismissed by Berkson v. Gogo LLC, 2016 U.S. Dist. LEXIS 46632 (E.D.N.Y., Apr. 5, 2016)


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Business & Corporate Compliance, Contract Formation, Acceptance, Meeting of Minds, Legal Ethics, Client Relations, General Overview, Professional Conduct, Opposing Counsel & Parties, Civil Procedure, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Contracts Law, Contracts Law, Contract Conditions & Provisions, Forum Selection Clauses, Apparent Acceptance, Overt Acts, Silence, Defenses, Unconscionability, Adhesion Contracts, Offers, Definite Terms, Arbitration Clauses, Contract Modifications, Failure to Read Contract, Computer & Internet Law, Contracts, Electronic Contracts, Formation, Types of Transactions, Clickwrap Licenses, Types of Contracts, Access Contracts, Types of Transactions, Evidence, Burdens of Proof, Allocation, Subject Matter Jurisdiction, Jurisdiction Over Actions, Constitutional Law, Case or Controversy, Standing, Elements, Governments, Courts, Authority to Adjudicate, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Justiciability, Injury in Fact, Class Actions, Class Members, Named Members, Personal Stake, Pleading & Practice, Motion Practice, Settlements, Offers of Judgment, Mootness, Real Controversy Requirement, Making of Offers, Settlement Agreements, Class Attorneys, Criminal Law & Procedure, Fraud, Computer Fraud, Particular Parties, Motions to Dismiss, Failure to State Claim