Gogo class action dismissed


In this week’s article, we examine the recent case of Salameno v. Gogo Inc., 16-CV-0487 (E.D.N.Y. July 7, 2016), New York Law Journal (7/14/2016), a class action brought by dissatisfied customers of Gogo’s internet access service available on commercial aircraft. Of particular interest is the Court’s decision to dismiss the class action and enforce Gogo’s mandatory arbitration agreement. This case should be compared to another class action against Gogo [Berkson v. Gogo LLC, 97 F. Supp. 3d 359) (E.D.N.Y. 2015)] in which a mandatory arbitration clause was not enforced. See our previous articles on the Berkson case [Travel Law: In-Flight Wi-Fi: high barriers to entry?, eturbonews.com (1/4/2015); Travel Law: Gogo Wi-Fi settlement preliminarily approved, eturbonews.com (1/28/2016)].

Terror Targets Update

Kabul, Afghanistan

In Mashal, Abed & Nader, Attack at University in Kabul Shatters a Sense of Freedom, nytimes.com (8/25/2016) it was noted that “As cafes, restaurants and performance centers in Kabul came attack one after another in recent years, the campus of the American University of Afghanistan remained a rare oasis for some of the country’s brightest young men and women…That sense of freedom…was violated Wednesday night. Men with Kalashnikov rifles and grenades first gunned down a guard at the adjoining school for the blind. One drove a car packed with explosives into the American University’s wall, blowing a gap through it. Two more militants dashed onto campus (and) methodically stalked the men and women trapped inside, fighting off the Afghan security forces for nearly 10 hours in a terrifying overnight siege”.

Mogadishu, Somalia

In Steinmetz, Terror attack: Al-Qaeda affiliate storms popular Somali Youth League Hotel, eturbonews.com (8/30/2016) it was noted that “In Mogadishu, Somalia a hotel is target of a development(ly) terror attack. A heavy explosion has rocked the popular Somali Youth League Hotel in the capital, Mogadishu, next to the presidential palace…There are also reports that the hotel was stormed by gunmen from Al Shabaab group, an Al-Qaeda affiliate”.

Paris, France

In Shooting near Paris metro station stirs fear of potential terror attack, eturbonews.com (8/30/2016) it was noted that “Police in the French capital of Paris say they have arrested two suspects after a shooting near a metro station that caused public fear about a potential terror attack”.

Diyarbakir, Turkey

In Rocket attack on Turkish airport sends passengers scrambling for shelter, eturbonews.com (8/28/2016) it was noted that “Suspected Kurdish militants fired rockets at the airport in Turkey’s main southeastern city of Diyarbakir on Saturday, sending passengers and staff scrambling for shelter”.

Burkini Ban Backlash

In Rubin, French ‘Burkini’ Bans Provoke Backlash as Armed Police Confront Beachgoers, nytimes.com (8/24/2016) it was noted that “Armed police surrounding Muslim women on beaches and ordering them to remove their modest clothes or leave. Calls from onlookers to ‘go back to where you came from’. Public humiliation and ostracism with echoes of the morals police of theocratic countries like Iran or Saudi Arabia, not a country that sees its values as a paragon of Western freedoms. Those uncomfortable images have come to dominate the ongoing debate over identity and assimilation as France’s coastal municipalities attempt to enforce new bans on the ‘burkini’, the full-body bathing suit designed to accommodate Islamic modesty codes”.

New York, New York

In The Editorial Board, Pandemonium at J.F.K. Airport, nytimes.com (8/24/2016) it was noted that “If law enforcement officials wanted to stage a mock terrorist attack to test security at New York City’s Kennedy International Airport, they couldn’t have planned it better than what actually happened on Aug. 14. That Sunday evening passengers at the huge network of terminals suddenly began hearing noises, followed shortly by reports – false, it turned out – of gunfire…the episode had one useful upside: It exposed serious flaws at all levels of airport security, including at the Port Authority of New York and New Jersey, which runs and polices Kennedy, La Guardia and Newark Liberty International Airports…Officials were slow to respond and seemed confused or even ignorant of security protocols and there were reports of T.S.A. agents abandoning their posts. There was no obvious chain of command, and no coordination among the responsible agencies-all of which was deeply alarming, given the terrorist attacks this year at airports in Brussels and Istanbul”.

Zika Babies In Brazil

In Belluck, Brain Scans of Brazilian Babies Show Array of Zika Effects, nytimes.com (8/23/2016) it was noted that “The images tell a heartbreaking study: Zika’s calamitous attack on the brains of babies-as seen from the inside. A study of brain scans and ultrasound of 45 Brazilian babies whose mothers were infected with Zika in pregnancy shows that the virus can inflict serious damage to many different parts of the fetal brain beyond microcephaly, the condition of unusually small heads that has become the sinister signature of Zika…’The brain that should be there is not there’ said Dr. Deborah Levine…’The abnormalities that we see in the brain suggest a very early disruption of the brain development process’. The scans show the range of Zika’s brain targets…including the corpus callosum, which facilitates communication between the two hemispheres; the cerebellum, which plays a significant role in movement, balance and speech; and the basic ganglia, which are involved in thinking and emotion”.

Zika In Miami: The Beat Goes On

In Alvarez & Madigan, The Beat, and the Bug Spray, Go On in South Beach Despite Zika Threat, nytimes.com (8/20/2016) it was noted that “Ms. X stood alone among the confectionery swirl that draws millions to the adult playground of South Beach, clutching not a minty mojito or even a ubiquitous cellphone, but one of the very latest symbols of life here: mosquito…’I’m thinking of trying to get pregnant in the next month’, said Ms. X, 32. ‘We thought maybe about cancelling, but we also thought we have to live our lives. This will get to New York City too. It will be all over the place’…On Friday, this rollicking southern slice of Miami Beach, a place long accustomed to boom and bust, downtrodden and glamorous, became the second official target zone of the Zika-carrying mosquito…in the continental United States”.

Zika In New York City

In Santora, New York City Wages War on the Zika Virus, mobile.nytimes.com (8/21/2016) it was noted that “At the current rate, Zika is on course to infect more than 90 million people around the world in the first wave of the epidemic, according to a study published last month in the journal Nature. That includes about two million women of childbearing age, and it could result in tens of thousands of babies born with devastating birth defects”.

Yellow Fever Epidemic

In The Editorial Board, A Yellow Fever Epidemic Made Worse by a Vaccine Shortage, nytimes.com (8/20/2016) it was noted that “As Zika was moving north from Brazil to the United States, a different mosquito-borne disease-yellow fever-was cutting a devastating trail through Angola and the Democratic Republic of Congo, killing more than 400 people and sickening thousands. This epidemic in not yet over, and, like Ebola in West Africa, it has exposed glaring weaknesses in how the world confronts infectious diseases”.

Bear Mauls Tour Guide

In Bear attacks, mauls Hawaii tour guide in Alaska, eturbonews.com (8/23/2016) it was noted that “Authorities in Alaska said a Hawaii woman was one of two wilderness guides who were attacked and mauled by a brown bear as they were leading cruise ship passengers on a hike in the Tongass National Forest in southeast Alaska. Alaska State Troopers say the attack occurred after the group came between the female bear and its cub”.

Uber Lost More Than $1 Billion

In Isaac, How Uber Lost More Than $1 Billion in the First Half of 2016, nytimes.com (8/25/2016), it was noted that “Much of Uber’s heavy losses in the first half of the year were attributed to the company paying subsidies to attract riders and drivers, especially in China, according to two people with knowledge of the matter. Uber spent the last two years fighting a war with China against Didi Chuxing, the incumbent ride-hailing giant in the country. Both companies spent billions of dollars subsidizing rides in the race to gain market share…a practice that could not be sustained in the long run. That spending came to an end earlier this month, when Uber agreed to sell its subsidiary company, Uber China, to Didi. Didi also agreed to invest $1 billion into Uber Global. The deal curtails Uber’s biggest cash drain over the coming quarter…”.

Travel Law Article: The Salameno Case

In the Salameno case the Court noted that “Defendants Gogo Inc. and Gogo LLC (Gogo) provide internet access on airplanes. Plaintiffs Charles Salameno, Maria-Angela Sanzone and John Jensen are dissatisfied customers who repeatedly used Gogo’s product over a period of months or years. Plaintiffs (allege) violations of consumer protection statutes and making claims for breach of contract, fraud, promissory estoppel and unjust enrichment”

The Parties

“Plaintiff Charles Salameno…purchased Gogo’s product on at least three occasions. Maria-Angela Sanzone…purchased Gogo’s product approximately once per month for approximately three years. John Jensen…who since 2011, paid for Gogo’s product at least 534 times. (Gogo) offers ‘a full suite of in-flight internet connectivity and other voice and data communications products and services’ to passengers on airplanes. To access Gogo’s services, passengers can purchase subscription plans and internet passes. Gogo provides its services on more than 2,000 commercial aircraft on more than 10 major airlines”.

Of Privacy And Cookies

“In order to purchase Gogo’s service, a customer must follow a two-step process. First, he or she must create an account on Gogo’s website. This step requires input of his or her name and e-mail address, and creation of a password. The user must then accept Gogo’s privacy and cookie policy and terms of use…Following the creation of the account, a customer can purchase a subscription or pass. Gogo offers several different options, varying by duration of access and airline, to choose from. According to plaintiffs, only four of Gogo’s ten products’ purchase screens include the statement ‘By clicking the button below, you understand and agree to these terms and Gogo’s privacy & cookie policy and terms of use’. Once a subscription or pass is purchased, a confirmation e-mail is sent to the customer; the e-mail includes a hyperlink to Gogo’s terms of use”.

Agreeing To Terms Of Use

“Each time a purchaser returned to Gogo’s website to sign-in to his or her account, the user would encounter a page with text that reads ‘By clicking ‘Sign In’ I agree to the terms of use and privacy policy’ The phrase ‘terms of use’ was hyperlinked, enabling the user to access and review them prior to signing in. Gogo’s terms of use contain arbitration and forum selection clauses. After December 2012, these clauses were in the terms of use plaintiffs agreed to repeatedly”.

The Arbitration Clause

“The arbitration clause requires that all disputes, except for those which can be brought to a small claims court, be arbitrated under the rules of the American Arbitration Association (AAA): You agree that the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of the Site, the Service or these Terms and Conditions, shall be final and (subject to) binding arbitration…As a limited exception to the agreement to arbitrate, you and we agree that you may take claims to small claims court, if you claims qualify for hearing by such court”. In addition, customers may opt-out of the mandatory arbitration provision if they do so within thirty days of a given transaction “by either calling…or sending an email”.

The Forum Selection Clause

“The forum selection clause requires that any claim that is not resolved through arbitration be resolved by a “a court of competent jurisdiction, federal or state, in Chicago, Illinois and no other court. Each party agrees to submit to the personal jurisdiction of such courts and accept service of process from them”.

The Court’s Analysis

“As a contract, an arbitration agreement requires an offer and a knowing acceptance. ‘Mutual manifestation of assent’ is the ‘touchstone’ of a binding contract. A ‘transaction’, even if created online, in order to be a contract, requires a manifestation of agreement between the parties’ as to its terms’ (citing Berkson v. Gogo LLC, 97 F. Supp. 3d 59, 388 (E.D.N.Y. 2015))”.

Manifestations Of Assent

In today’s electronic world, online retailers often offer their services pursuant to terms of use shown on the computer used to order a product or services. Manifestation of assent to a website’s terms of use may be demonstrated in different ways. Some website require assent by checking of a box or clicking of a button-this is known as a ’clickwrap agreement’. Other website deem consent to be given then the user signs an account-this is known as a ‘sign-in-wrap agreement’ (which are enforceable in three circumstances) first, ‘where the hyperlinked ‘terms and conditions’ is next to the only button that will allow the user to continue use of the website’, second, ‘where the user ‘signed up’ to the website with a clickwrap agreement and was presented with hyperlinks of the ‘terms of use’ on subsequent visits; and third, ‘where notice of the hyperlinked ‘terms and conditions’ is present on multiple successive webpages of the site”.

Applying These Rules

“Plaintiffs were repeatedly given adequate notice of the terms and conditions-including the arbitration agreement. Their claims are within the scope of the arbitration agreement…In order to purchase Gogo’s product, plaintiffs were presented with a webpage that required them to click a button near the statement, ‘By clicking this button, you agree to Gogo’s privacy and cookie policy and terms of use’(which) were hyperlinked so that plaintiffs could review the terms before making their purchase. This constituted a clickwrap agreement. Them, each time plaintiffs signed-in to use Gogo’s product, they were again presented with a webpage that contained the terms of use hyperlink. This constituted a sign-in-wrap agreement (after which) plaintiffs were sent a confirmation e-mail that also contained a hyperlink to Gogo’s terms of use…Similar combinations of clickwrap and sign-in-wrap agreements are enforceable”.


“[A]s practiced individuals who frequently flew with an apparent need for internet access, it is reasonable to conclude that they are not unsophisticated lay internet users. In today’s technologically driven society, it is reasonable to charge experienced users-as plaintiffs appear to be-with knowledge of how hyperlinks work and, by extension, how to access the terms of use they were-repeatedly-being told they were consenting to when they sign-in to Gogo’s website…Gogo’s motion to compel arbitration is granted”.

Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.

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