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Federal Judge Cites Professor Nancy Kim In Important Ruling

ProFlowers Distinguished Professor of Internet Studies Nancy Kim

Professor Nancy Kim continues to distinguish herself as a leading figure in the emerging area of Internet law and consumer contracts.

A federal judge recently cited Kim’s book Wrap Contracts in a ruling about online contracts created when Internet users click on “Agree.”

“It’s a potentially game-changing opinion,” says Kim of the ruling that could have a major effect on the enforceability of digital contracts.

In Berkson v. Gogo, two airline passengers sued GoGo Inc. for charging their credit cards monthly for onboard Wi-Fi services they thought they were purchasing for only one month. The passengers believed the in-flight service was a one-time charge because the terms of the agreement were not readily apparent.

Judge Jack B. Weinstein, of the U.S. District Court in the Eastern District of New York, ruled that neither plaintiff agreed to the terms of these so-called wrap contracts and that neither was aware his credit card would be charged monthly on a recurring basis. Weinstein stated that the terms of the contract were not “immediately visible,” nor “reasonably conspicuous.”

In the ruling, Weinstein cited Kim’s book and scholarship extensively.

Gogo is significant for several reasons,” says Kim. “It provides a comprehensive discussion and critique of existing wrap contract doctrine. It recognizes that the appropriate standard of the reasonable consumer is the "average Internet user," instead of a hypervigilant and super savvy techie. Perhaps most importantly, it recognizes that website design and the presentation of contract terms are important factors in determining to what, if anything, a consumer has agreed.”

Kim agrees with Weinstein that it’s up to online companies to make the terms of their binding contracts visible and understandable to consumers. 

“Companies make it difficult for consumers to read and understand contract terms,” Kim adds. “Berkson v. Gogo states that the burden should be on the company to explain critical terms to the user instead of expecting the user to be on the lookout for hidden terms. Companies have their ‘contract’ spread out across several webpages that consumers are expected to notice and chase down by clicking on different hyperlinks. Even if they find all the terms, the language is confusing and hard to understand. To make matters worse, companies update their terms constantly and expect users to check back to the site to find out whether they’ve been updated. It's ridiculous.”

Kim is the ProFlowers Distinguished Professor of Internet Studies, and Wrap Contracts: Foundations and Ramifications (Oxford University Press, 2013), is an important work of legal scholarship. It has been cited in the Los Angeles Times, Fast Company, and other prominent media.

Her scholarship is also featured in Southwestern Law Review’s Spring 2015 edition. The issue contains 10 essays by notable contracts, intellectual property, and Internet scholars discussing Professor Kim’s book in written symposium form. It includes Kim’s response to some of the articles included in the symposium.