Thursday, June 4, 2015
In an 83-page memorandum and order of the case, available here, Judge Weinstein denied all three parts of Gogo's motion. Judge Weinstein identifies three policy questions raised by the suit. We are most interested in the first:
[H]ow should courts deal with hybrid versions of “browsewrap” and “clickwrap” electronic contracts of adhesion (referred to in this memorandum as “sign-in-wraps”) that do not provide internet users with a compelling reason to examine terms favoring defendants?
We note in passing that in defining his terms and throughout the opinion, Judge Weinstein relies on Nancy Kim's book, Wrap Contracts. He also takes note of other excellent work by scholars whose work has been featured on this blog, such as Oren Bar-Gill, Woodrow Hartzog Juliet Moringiello and Tess Wilkinson-Ryan, among others.
After a truly impressive survey of the caselaw and the scholarly literature, Judge Weinstein emerges with some general principles:
A hearing on class standing is scheduled for July. Stay tuned.