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JUL 28, 2015 TUESDAY

Federal Judge Cites Professor Juliet Moringiello in Electronic Contracting Decision

Professor Juliet Moringiello, a leading expert on electronic contracting, had four of her law review publications cited in an opinion authored by Judge Jack B. Weinstein of the United States District Court for the Eastern District of New York.  The case is Berkson v. Gogo LLC which was decided in April and is now on appeal to the Second Circuit.  The opinion addresses the question of assent to online terms of use and questions whether a person who simply clicks “I agree” when purchasing goods or services online truly agrees to terms presented via hyperlink.

Judge Weinstein noted that the case raised several policy considerations for the court to consider, the first of which was how courts should deal with electronic contracts of adhesion that do not provide internet users with a compelling reason to examine terms favoring defendant.  He recognized, as Professor Moringiello argued in two of her articles, Signals, Assent, and Internet Contracting, and Notice, Assent, and Form in a 140 Character World, that individuals may perceive electronic terms differently than they perceive paper terms, and that more studies are required to gauge whether the average internet user understands that she should read terms to which she clicks her agreement.

In the opinion, Judge Weinstein discussed recommendations made by an ABA Working Group, in an article co-authored by Professor Moringiello, that recommended best practices for online agreements.  The court noted that the best practices were still valid but often ignored.  Professor Moringiello is currently the Chair of the Electronic Contracting Subcommittee of the Cyberspace Committee of the ABA Business Law Section, the successor to that initial working group.