Berkson v. Gogo LLC

97 F.Supp.3d 359 (2015)

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Nature of the Case

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Facts

D provides passengers with Wi-Fi access on many domestic airlines. D dominates the market, making its service available on more than eighty percent of all Wi-Fi-enabled flights in North America. D's website advertised the cost of a monthly Wi-Fi subscription at $40, and a day pass for $10. Ps alleged that when they registered for the monthly service, no notice was given about a recurring monthly charge. Ps claim that they each purchased Wi-Fi in reliance on representations they saw on the company's website. This lead Ps to believe they were only agreeing to a one-month subscription. D obtained no signature or affirmative authorization to charge for recurring fees if they failed to cancel the service by phone. Ps also claim that D never sent any communication on a monthly basis, as is customary, to notify them of continuing new charges if the service was not canceled by the subscriber. After the first period expired, D continued to charge for the monthly service. Only when the charges were recognized by Ps as the unwanted service were they canceled. Berkson (Ps) alleges that Gogo (D) improperly increased their sales and profits by misleading customers into purchasing a service that charged a customer's credit card, on an automatically-renewing continuing monthly basis, without adequate notice or consent. Ps argue that the graphics and text on D's website, led internet consumers to believe that they were only buying a one-month subscription when they signed up for in-flight Wi-Fi through D. D's position is that the terms Ps consented to not only clearly provided for automatic renewal, but that they included mandatory arbitration and waiver of venue protection. Three causes of action are brought on behalf of a nationwide class-common law breach of the implied covenant of good faith and fair dealing, common law unjust enrichment, and violation of various consumer protection statutes. Before the court are D’s motions (1) to transfer venue; (2) to compel arbitration; and (3) to dismiss for lack of standing.