Clickwrap Agreement Case: Automatic Billing Enrollment

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clickwrap agreement lawyerCertain clickwrap, browserwrap and sign-in wrap agreements may soon be under legal fire. Anyone who uses — or is considering using — these types of contracts should set aside a minute to read this post. Why? We’ll explain why sign-in wraps may soon be a bad idea. Also, we’ll go over the different types of “user agreement wraps”.

In-Flight Wireless Provider Accused of Using Tricky Clickwrap Agreement, And Overcharging Consumers

Gogo LLC (“Gogo”) provides airplane wireless services. In fact, it dominates the in-flight Internet connection niche. But if a proposed class action lawsuit against Gogo is green lit, one of the possible rulings could be an internet law game-changer regarding sign-in wrap user agreements.

User Contract Includes Payment Fine Print

First, A Little About Gogo

Gogo was one of the first firms to recognize the profit potential of in-flight wireless service. Today, it’s one of the biggest players in the field. Passengers crisscrossing the globe can choose between Gogo’s monthly (about $40 a month) and daily (about $10 a day) packages.

The Different Types of “Digital Wrap” Agreements

Browserwrap Agreement (also browse-wrap and browser-wrap) = Consent is given by using the site;
Clickwrap Agreement (also click-wrap) = User must click “I agree” to accept the terms;
Scroll-Wrap Agreement = User must scroll to the bottom of a document, and then click to accept terms;
Sign-In Wrap Agreement = The act of signing up to use a given service constitutes assent to the terms.

Clickwrap Agreement Lawsuit filed in 2014

But all that connects 37,000 feet in the air isn’t gold. According to at least two Gogo clients – Adam Berkson and Kerry Walsh – the company may be enrolling unwitting participants in an automatic monthly billing program. And even more unfortunately for Gogo, the pair’s claim may spawn a class action lawsuit.

Plaintiff’s Fundamental Argument In Potential Gogo Class Action

Berkson, Walsh and a handful of yet unnamed Gogo customers believe that the in-flight internet company is taking consumers for a fast ride. How? By tricking people into signing up for an automatic monthly service package as opposed to the one-time agreement most people think they’re getting. Plaintiffs insist that misleading graphics and an unclear terms of service all contributed to the deception.

Even though Gogo’s user agreement included an arbitration waiver, the judge ruled that in this case, customers are “not bound by mandatory arbitration and waiver of venue provisions.” Average users, the court also opined, “would not have been informed, in the circumstances presented in this case, that [they were] binding [themselves] to a sign-in-wrap.”

The class certification hearing is on July 9, 2015.

Judge Exhibits Some Tech Acumen at Clickwrap Agreement Hearing

The presiding judge in Gogo’s terms-of-service lawsuit has, encouragingly, exhibited a bit of tech acumen. Specifically, he considered color-coded graphics detailing “eye-tracking tendencies” that analyzed “comprehension between the printed page and computer screen and how the average user interacts with privacy policies, web-based advertisements and hyperlinks.”

Potential Consequences If This Browser Wrap Class Action Is Successful

Main Legal Question: Which Types of User Agreements Should Be Made Illegal?

If the Gogo class action moves forward, the main question will be: “How should courts deal with hybrid versions of browser wrap, click wrap and electronic contracts of adhesion – a.k.a., sign-in wrap?”

Showing a cheeky side, during the latest hearing, the presiding Judge quoted John Oliver, condemning: “If Apple put the entire text of Mein Kampf in their user agreement, you’d still click agree.”

Kelly / Warner handles all manners of internet law litigation and compliance issues. To learn more about our practice, go here.


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Internet Business Litigation: Cybersquatting and Injunctions

business litigation
When things go off-track, a business litigation attorney can negotiate on your behalf to set things straight again.

Business litigation is a wide-ranging area of law. Let’s take a few minutes to review what a business litigation attorney does and how they can help small- and medium-sized startups and companies.

Business Litigation Practice Area: Contract Disputes

Contracts are the backbone of most business transactions. They outline partnerships, affiliate relationships, crowd sourcing agreements, and use-terms for apps, websites and cloud-based networks. A strong contract can save you headaches down the road and a bad one will elicit the opposite effect.

The other thing with contracts is that they can be interpreted in a myriad of ways (and that’s why lawyers have a way of being overly verbose at times). As such, a great business litigation lawyer for Internet companies is one that knows the industry inside and out. That way they can take full advantage of their nuanced knowledge of the digital world to make the most cogent, convincing arguments.

Click Here To Read More About Our Approach To Contract Negotiation

Business Litigation Practice Area: Debt Recovery

Let’s be blunt, debt collection is no fun, for anyone. But when the bills are due, the bills are due. And for many tech startups, outstanding invoices can be the difference of making it through the next month or not.

Having a law firm deal with your debt collection needs is often more successful than having a debt collection agency. Why? Simply stated, attorneys are professional negotiators, whereas debt collection agents are often at best disgruntled phone jockeys or at worst automated messages.

Click Here To Read More About Business Collections

Business Litigation Practice Area: Trade Secret Protection

Business litigators often deal with clients involved in trade secret squabbles. Again, many of these cases involve a lot of negotiating between the two parties and many don’t even reach the trial stage.

Business Litigation Practice Area: Injunctions and Temporary Restraining Orders

Since the time of Henry VII, injunctions have been used in legal confrontations. Considered to be equitable remedies, injunctions compel a party to act or stop acting. For example, if you want a former partner to stop accessing certain data, you can file to get an injunction to get them to stop. If you want a former co-worker to turn over certain information, you can petition for an injunction that forces them to do so.

Temporary restraining orders – known as TROs – are stop-gap court orders, usually only issued for no longer than 14 days, prevent an adversary from engaging in certain behavior between the time of your injunction filing and the hearing date. What’s convenient about TROs is that they can be granted ex parte, which means the accused does not have to be notified of the order ahead of time.

Click Here To Read More About Injunctions & Temporary Restraining Orders

Business Litigation Practice Area: Intellectual Property Litigation

It’s often easy to forget that back in the early days of this country, intellectual property law was basically nonexistent. After all, they were trying to build a new country and economy, so it made perfect sense to allow the copying of foreign works for sale and profit in the “New World.”

But now that that economy is well established (albeit struggling at times), copyright and trademark legislation has grown much stricter. The advent of the Internet added another level of complication to intellectual property legislation and litigation.

An Internet business litigation attorney can help companies sort through the ever-changing maze of intellectual property – whether it be complicated registrations, dispute negotiations,  or even a cybersquatting issue.

Click Here To Read More About Intellectual Property

A Few More Basics About Internet Business Litigation

Here are a few more factoids about the business litigation process you may find useful to know .

  1. In business litigation cases, the party which is being accused of an unlawful act or breach is referred to as the litigant. The person filing the claim is the complainant or movant.
  2. Business litigation lawsuits can be of the class action or individual variety.
  3. A good business litigation lawyer will be a stupendous mediator, well-versed in your industry.

If you are in need of an Internet business litigation lawyer, contact us today. Our legal practice concentrates on Internet law and technology issues, making us the ideal option for startups, online businesses, gaming companies, app development firms, hosting firms and affiliate marketers.

Injunctions And Temporary Restraining Orders (TROs)

temporary restraining ordersIf you want to stop an adversary, lawsuits aren’t the only legal option. Injunctions and temporary restraining orders – or TROs – provide an equitably remedy, for both civil and criminal wrongdoings.
Broadly speaking, injunctions are court orders that compel an individual or business to either do something or stop doing something. Temporary restraining orders are granted if one party feels they could be irreparably harmed while waiting for their court date to arrive.

Examples Of When You Can Pursue Temporary Restraining Orders

For example, let’s say one of your employees leaked trade secrets and you want them to stop, but the injunction hearing is 2 weeks in the future. If you waited till the injunction hearing date, the employee would have plenty of time to leak a lot of information. Obtaining a temporary restraining order would provide a stop gap. Two other examples are divorce or a hostile business takeover; in both instances there is a largely possibility that one party in the dispute may try to hide or waste money before the court date – a temporary restraining order could prevent both from happening.

A Brief History & Definition of Legal Injunctions

Not only did Henry VII sire one of history’s more infamous Kings, but it was also around the time of his rule that injunctions became a part of the legal process. Due to changing demographics, cultural norms and conditions, society had to develop a way to provide punishments that fit the crime. In other words, people started realizing that chopping off someone’s hands for stealing a loaf of bread was a bit extreme. As such, equitable legal remedies came about based on the principle of status quo ante.

Status quo ante is a legal principal that addresses the need for a balance between a crime and a punishment. For example, if someone is harassing you online, the goal is to get said person to stop harassing you online; as such, technically, money wouldn’t be of much help in that situation. While it’s true that in today’s world we’ve attached a dollar amount to most wrongs, the spirit of the premise is still very much a part of our legal system.

The Role of Injunctions In Today’s Legal Framework

A court-issued injunction either compels an entity to do something or refrain from doing something. You can get an injunction to have your now-on-the-outs startup partner from revealing trade secrets, or you can get an injunction to get your soon-to-be ex-spouse to turn over bank records.

The court takes injunction infractions very seriously; violators can face both civil and criminal penalties.
Injunctions are typical in cases of:

  • Stalking
  • Domestic violence
  • Harassment
  • Bullying
  • Sexual
  • Physical abuse
  • Trade dress
  • IP infringement
  • Trade secret disclosure
  • Tortious interference
  • Civil and criminal contempt
  • Unauthorized practice of law
  • Discrimination

What Are Temporary Restraining Orders

Temporary restraining orders – also known as TROs – are essentially legal stop-gaps between the time you file for an injunction and the first hearing for said injunction. Basically, they’re pre-trial temporary injunctions. Unlike a lawsuit ruling, a judge’s decision on a TRO cannot be appealed. Temporary restraining orders can be granted ex parte, meaning that the individual or business to which the TRO is directed does not have to be notified ahead of time that it could be on its way. In other words, you can file for a TRO in secret, so as not to give your adversary a heads-up as to your plans.

How Long Do Temporary Restraining Orders Last

Each state has their own specific rules as to how long temporary restraining orders can last. To give you a ballpark idea, though, in federal courts, temporary restraining orders can be granted for up to 14 days. A judge, however, can extend the order for good cause, the reason for which must be recorded in the documentation. In addition, if, for whatever reason, the opposing party agrees to extend the TRO, it can be extended.

What Your Lawyer Must Prove To Win A TRO

In order to successfully win a temporary restraining order, your lawyer must prove to the judge that:

  1. You will likely win your injunction;
  2. The actions from which you are seeking relief are irreparably harming you in some way;
  3. If the TRO is not granted, you or others will suffer because of it;
  4. The TRO doesn’t harm the public’s interest in some way.

Temporary Restraining Order Rules For Federal Courts

Each U.S. state has their own set of statutes dealing with injunctions and temporary restraining orders. It’s best to check with a TRO attorney to find out what options are available in your jurisdiction. The lawyer you find doesn’t have to be in your state, as most TRO lawyers have dealt with situations from all over the country, due to today’s more fluid, digital-based business environment.

Temporary Restraining Order Procedures

To give you an idea of TRO litigation procedures, let’s take a look at the rules for TROs in federal courts, which are laid out in Rule 65(b) of the Federal Rules of Civil Procedure.

The federal TRO rules say that in order to be granted a temporary restraining order without “warning” the recipient ahead of time, one must:

a) provide an affidavit, with specific facts, that prove immediate harm; and
b) have their attorney certify in writing any efforts made to give notice to the intended recipient, or the reasons notice should not be given.

From a logistical standpoint, the federal temporary restraining order rule says that every TRO issued must:

a) include the date and hour it was issued;
b) stated why it was granted ex parte (if it was granted ex parte);
c) describe any injury that would have probably occurred if the TRO wasn’t granted;
d) be promptly delivered to clerk’s office for filing.

If you need an attorney to help you secure a temporary restraining order or injunction against an individual or business, give the lawyers at Kelly/Warner a call. We’ve worked with people and companies from all 50 states and have considerable experience with TROs and injunctions.