Clickwrap Agreement Case: Automatic Billing Enrollment

The right clickwrap agreement will protect your assets and business better than a standard contract; it also allows for higher profit potential. I Want One »

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: Issues Affecting Online Business

internet business litigation attorneyLet’s review how a  business attorney can help small- and medium-sized businesses.

Internet Business Litigation: Contract Disputes

Contracts are the backbone of most business transactions. They outline partnerships, affiliate relationships, crowd sourcing agreements, and terms for apps, websites, and networks. A strong contract goes a long way.

Read More About Contract Negotiations »

Internet Business Litigation: Debt Recovery

Let’s be blunt, debt collection isn’t fun for anyone. But when the bills are due, the bills are due. And for many tech startups, outstanding invoices can present cash flow problems that stall production.

Letting a law firm deal with debt collection can speed things along. Why? Attorneys are professional negotiators, whereas debt collection agents are often disgruntled phone jockeys.

Read More About Business Collections »

Internet Business Litigation: Trade Secret Protection

Business litigators work with parties entangled in trade secret webs. Again, many of these cases involve complex negotiations. Having someone on your side, with experience, is essential.

Read More About Trade Secret Issues »

Internet Business Litigation: Injunctions and Temporary Restraining Orders

Injunctions have been around since Henry VII lorded over Tudor England. Equitable remedies, injunctions compel parties to act or stop acting. For example, if you want a former partner to stop accessing data, you can file for a stop injunction. If you want former employees to turn in certain information, petition for an injunction that forces them to fork it over.

Temporary restraining orders – known as TROs – are stop-gap measures that prevent adversaries from engaging in certain behavior before a hearing. Conveniently, TROs can be granted ex parte, which means the accused doesn’t have to be notified ahead of time.

Read More About Injunctions & Temporary Restraining Orders »

Internet Business Litigation: Intellectual Property Litigation

Back in America’s early days, intellectual property laws didn’t exist. After all, when nation building, copying foreign works made perfect sense.

But now, a few hundred years later, in our digital era, intellectual property legislation is prolific and contentious.

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

Read More About Intellectual Property Issues »

Contact An Internet Business Litigation Attorney

Need an Internet business lawyer? Contact us today. Kelly / Warner concentrates on Internet law and technology issues, making us the ideal option for startups, online businesses, gaming companies, development firms, hosting firms, entrepreneurs, and marketers.

Injunctions And Temporary Restraining Orders: A Legal Introduction

injunctions and temporary restraining ordersInjunctions and temporary restraining orders – or TROs – provide an equitably remedy, for both civil and criminal wrongdoings.
Broadly speaking, injunctions are court orders that compel individuals and 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 a court date to arrive.

What Is The Difference Between Injunctions and Temporary Restraining Orders?

Let’s say one of your employees leaked trade secrets, but the injunction hearing is still two weeks away. If you waited till the injunction hearing, the employee would have plenty of time to leak. Obtaining a temporary restraining order would provide a stop gap.

Two other examples are divorce or a hostile business takeover; in both instances, the possibility looms large 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 of Legal Injunctions

Not only did Henry VII sire one of history’s more infamous Kings, but it was under his rule when injunctions became a part of the legal process. Due to changing conditions an cultural norms, people began to realize that chopping off hands for stealing loaves of bread was extreme. As such, aristocrats developed equitable legal remedies based on 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 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 injunction either compels an entity to do something or refrain from doing something. You can secure an injunction to stop a “now-on-the-outs” business 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.

How Long Do Temporary Restraining Orders Last

Each state has rules regarding the length of temporary restraining orders. To give you a ballpark idea, in federal courts, TROs can be granted for up to 14 days. A judge, however, can extend the order for good cause, or, for whatever reason, the opposing party agrees to extend the TRO.

What Your Lawyer Must Prove To Win A TRO

In order to successfully win a temporary restraining order, your lawyer must convince a 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.

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 to you. The lawyer you find doesn’t have to be in your state, as most TRO lawyers deal with situations from across the country, due to today’s more fluid, digital business environment.

Temporary Restraining Order 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.

Logistically speaking, 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 injunctions or temporary restraining orders, give the lawyers at Kelly/Warner a call. We’ve worked with people and companies from all 50 states and have considerable experience with injunctions and temporary restraining orders.