Full opinion text
MEMORANDUM & ORDER JACK B. WEINSTEIN, Senior District Judge: Table of Contents I. Introduction.■.365 II. ProCedural History.367 TTT Fap.tr .368 i A. Defendant Gogo. C75 B. Monthly Service Charge. C. Plaintiff Welsh. Oi 1. Sign-In Portal in August 2011. 2. Create Account Page. D. Plaintiff Berkson. 1. Sign-In Portal Since 2012. 2. Create Account Page. E. Relationship Between Gogo Inc. and Gogo-LLC . IV. Assessing Atteibutes of the “Average InteRnet USER” .. CO -3 A. Studies ... CO -3 B. Anecdotal Evidence. CO 00 C. • The Reasonable Communicativeness Test. CO GO V. Contract Formation and Assent .. A. Legal Research and Scholarship. 1. “Informed Minority” Hypothesis. 2. American Bar Association Working Group. 3. Traditional Contract Doctrine and the Internet Age B. Law . 1. Choice of Law. 2. Common Law Contracting . a. Acceptance. b. Adhesion Contracts. c. Uneonscionability . i. Procedural. ii. Substantive. d. Material Terms and Material Alterations. e. Notice. 3. Electronic Adhesion Contracts. a. Browsewrap. b. Clickwrap. c. Scrollwrap. d. Sign-in-wrap. e. General Principles. 4. Assessing Validity and Enforceability of Electronic Adhesion Contracts. oq © ^ C.. Application of Law to Facts co © ^ 1. Plaintiff Welsh. 2. Plaintiff Berkson.403 3. Generally.404 VI. Constitutional Standing. A. Law . 1. Motion to Dismiss Standard. 2. Putative Class Representatives Cannot Be “Picked Off’ by Defendants... OJ a. Supreme Court Cases. 05 i. Deposit Guarantee Natl Bank v. Roper. Oí ii. Genesis Healthcare Corp. v. Symzcyk. <] b. Relevant Court of Appeals Rulings. OO i. -Offers of Judgment Must Fully Satisfy Claims.. OO ii. Acceptance of an Offer of Settlement Does Not Necessaril y Moot a Case or Controversy 05 © c. Other Court Decisions. 05 O T* 3. Putative Class Representatives Cannot Be Paid Off By Sidestepping No-Contact Rule. tH ^ B. Application of Law to Facts. i — H tH ^ 1. Plaintiff Welsh. i — ( t — 1 ^ 2. Plaintiff Berkson. Cm r-t VII. Disposition of Remaining Claims . .413 VIII. Conclusion. .413 I. Introduction There is a huge percentage of the United States population using the internet for purchases. See infra Part IV. In many instances, these consumers are accepting important contracts of adhesion when they order a product or service through a computer. With convenience has come much widened opportunities for consumer fraud and overreaching by merchants, as claimed in the present case. The instant putative class action involves purchase of internet service connection (“Wi-Fi”) on air flights. Plaintiffs Adam Berkson and Kerry Welsh sue Gogo LLC and Gogo Inc. (collectively, “Gogo,” “the company,” or “defendants”). Alleged is that defendants 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. The graphics and text on defendants’ website, it is argued, led internet consumers during the proposed class period — between February 2008 and December 2012 — to believe that they were only buying a one-month subscription when they signed up for in-flight Wi-Fi through Gogo. Gogo’s position is that the terms plaintiffs consented to not only clearly provided for automatic renewal, but that they included mandatory arbitration and waiver of venue protection. Berkson, a New York State resident, claims that he sustained unauthorized charges to his credit card on October 25, 2012, November 26, 2012, and December 25, 2012. Welsh, a resident of California, posits that he suffered injury when he incurred unauthorized recurring charges over a sixteen-month span, from September 2011 through December 2012. A variety of claims are pleaded in the amended class action complaint. 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. A New York sub-class is alleged to have a claim under the State’s General Business Law, section 349. Asserted 'on behalf of a California sub-class is violation of that State’s Consumers Legal Remedies Act, Cal. Civ.Code § 1750 et seq., its Unfair Competition Law, Cal. Bus. & Prof.Code § 17200 et seq., and its False Advertising Law, Cal. Bus. & Prof.Code § 17500 et seq. Before the court are defendants’ three motions: (1) to transfer venue; (2) to compel arbitration; and (3) to dismiss for lack of standing. The motions to transfer venue and compel arbitration are premised on the company’s “terms of use,” which defendants argue plaintiffs assented to online when they subscribed to Gogo’s in-flight Wi-Fi. Plaintiff alleges that these terms and conditions were “hidden” and never seen, or agreed to, by them. Hidden provisions in an electronic contract of adhesion do not bind the parties; they cannot dictate venue or compel arbitration. The central factual-legal question in the case is: were plaintiffs given effective, notice of the need to make inquiry (“inquiry notice”) of the “terms of use,” in what can be characterized as Gogo’s electronic contract • of adhesion? The question is answered in the negative, compelling denial of defendants’ motions on venue and arbitration. Plaintiffs’ standing depends on whether they suffered concrete and particularized injury on the dates their credit cards were billed for allegedly unauthorized charges. That Berkson was reimbursed by his credit card company when defendants refused to do so does not defeat his standing. Nor has Welsh’s standing been negated because, when put on notice of the class action lawsuit, Gogo directly sent him — not his attorney — a settlement offer in the form of a full refund. Defendants’ motion to dismiss for lack of standing is denied. The case raises three policy questions: • First, how should courts deal with hybrid versions of “browsewrap” and “clickwrap” electronic contracts of adhesion (referred to in this memorandum as “sign-in-wraps”) that do not provide internet users with a compelling reason to examine terms favoring defendants? • Second, if a credit card company reimburses an individual for losses, later claimed against a merchant, does full payment by the credit card company shield the vendor from liability to the consumer? • Third, is the filing of a mandatory-putative class action demand letter under a state’s consumer protection statute the functional equivalent — for the purpose of providing notice — of a federal class action complaint? In the absence of documentary, testimonial, or expert evidence about the expertise of these plaintiffs with respect to internet use, the court inferred their average capacity and understanding as internet users when they ordered Gogo’s services. Relied upon were exploratory sociological research about average internet users, limited empirical studies conducted by legal scholars and economists, and somewhat arbitrary assumptions by the court itself about the average internet user. It is concluded that the average internet user would not have been informed, in the circumstances present in this case, that he was binding himself to a sign-in-wrap. The sign-in-wrap used in this case does not support the venue and arbitration clauses relied upon by defendants. It was open to defendants to show special circumstances indicating that the plaintiffs were aware, or should have been aware, of such clauses because of their special knowledge, but they have not done so. Applied is a four-part test to analyze the validity of electronic contracts of adhesion generally. See infra Part Y.B.4. This approach casts significant doubt on the validity of those sign-in-wrap and clickwrap agreements that fail to adequately present material terms to internet users. A putative class representative’s standing is not eliminated when a credit company reimburses him for grievances later filed against a third-party merchant. Credit card companies do not serve as shields for allegedly fraudulent merchants, Filing of a mandatory putative class action demand letter under a state’s consumer protection statute is the functional equivalent — for the purpose of providing notice — of filing a class action complaint in federal court. Defendants’ motions to transfer venue, compel arbitration, and dismiss the amended class action complaint are denied. II. Procedural History On February 25, 2014, Berkson filed a class action complaint in the United States District Court for the Eastern District of New York. (Compl., Feb. 25, 2014, ECF No. 1.) On behalf of a New York sub-class, he alleged violation of New York General Business Law section 349, and, on behalf of a nationwide class, he alleged breach of the implied covenant of good faith and fair dealing, and violation of various consumer protection statutes. (Id.) A fourth cause of action on behalf of the nationwide class, unjust enrichment, was alleged in the alternative. (Id.) On the same day, a motion for class certification was filed. (Class Certification Mot., Feb. 25, 2014, ECF No. 5.) On April 4, 2014, defendants filed a motion to compel arbitration or transfer the action to the Northern District of Illinois, or, alternatively, to dismiss the action for lack of jurisdiction or failure to state a claim. (Defs.’ Mots, to Dismiss, Apr. 4, 2014, ECF No. 9.) Three weeks later, on April 24, 2014, plaintiff Berkson, joined by plaintiff Welsh, filed an amended class action complaint adding three new causes of action for purported violations of several California statutes. (Am. Compl., Apr. 24, 2014, ECF No. 17.) On May 12, 2014, defendants filed a motion to compel arbitration or transfer the amended action to the Northern District of Illinois, or, alternatively, to dismiss the amended complaint for lack of jurisdiction or failure to state a claim. (Defs.’ Mots, to Dismiss, May 12, 2014, ECF No. 21.) Oral argument was heard on October 15, 2014. (Hr’g Tr., Oct. 15, 2014 (“Hr’g Tr.”).) The parties were granted additional time to complete discovery and informed that the court would rule without further argument. (Id. at 8:21-24.) Discovery was completed four months later, on February 13, 2015. (Order, Feb. 23, 2015, ECF No. 53.) Supplemental briefing was concluded on March 27, 2015. (Id.) This memorandum is the court’s written decision regarding the denial of defendants’ three motions. Defendants’ may move for re-argument on the issue of standing since it was denied as moot at the October 15, 2014 hearing. (Hr’g Tr. 10:3-12.) III. Facts A. Defendant Gogó Gogo provides passengers with Wi-Fi access on many domestic airlines. (Am. Compl. ¶ 22.) Thirty-eight percent of domestic flights in the United States, 8,700 flights, offer Wi-Fi. (Id. at ¶ 2 (citing Joe Sharkey, In-Flight Wi-Fi Still Costly, but More Available, N.Yi Times, June 24, 2013, available at http://www.nytimes. com).) Gogo dominates the market, making its service available on more than eighty percent of all Wi-Fi enabled flights in North America. (Id.) “It is the ‘exclusive internet access connectivity provider along domestic airlines routes flown by AirTran, Alaska Airlines, American Airlines, Delta, Frontier Airlines, United Airlines, U.S. Airways, and Virgin America.’ ” Stewart v. Gogo, Inc., No. 12-CV-5164, 2013 WL 1501484, at *1 (N.D.Cal. Apr. 10, 2013) (citation omitted). B. Monthly Service Charge At all times relevant to this action, Gogo’s website advertised the cost of a monthly Wi-Fi subscription and the cost of a single day pass. Monthly access cost approximately $40, and a day pass cost approximately $10. (Am. Compl. ¶ 7; Steve Vair Decl. ¶¶3, 6, ECF No. 22 (“Vair Deck”); 2011 Create Account Page, ECF No. 30-1.) It is alleged that, when potential customers registered for the monthly service, no notice was given about a recurring monthly charge. (Am. Compl. ¶ 24.) The only representation regarding the price indicated the charge per month — ie., “$34.95 per month” in the case of Berkson, and “$39.95 per month” in the case of Welsh. (Id.; Vair Deck ¶¶3, 6.) Plaintiffs claim that they each purchased Wi-Fi from Gogo in reliance on representations they saw on the company’s website. (Am. Compl. ¶ 21.) This information, they argue, led them to believe that, when they signed up for the service, they were only agreeing to a one-month subscription. (Id.) Gogo, it is alleged, obtained no signature or affirmative authorization to charge plaintiffs for recurring fees if they failed to cancel the service by phone. (Id. at ¶¶ 21, 26.) Nor did Gogo, it is claimed, send any communication to plaintiffs on a monthly basis, as is customary, to notify them of continuing new charges if the service was not cancelled by the subscriber. (Id.) After the month-long period from the date of original sign-up ended, Gogo continued to bill each of plaintiffs’ credit cards monthly. (Id. at ¶¶ 8, 15; Vair Deck ¶¶ 5, 7.) Only when the charges were recognized by plaintiffs was the unwanted service can-celled. (Id.) C.Plaintiff Welsh According to Welsh, this is what occurred: On August 7, 2011, he subscribed to Gogo’s in-flight Wi-Fi on an Alaska Airlines flight from Los Angeles, California to Seattle, Washington. (Am. Compl. ¶ 15; Vair Deck ¶ 6; Joint Submission 2, ECF No. 57 (“Joint Subm.”).) After purchasing what he believed to be a one-month package, he was billed, and his credit card charged, for the period of September 2011 through December 2012. (Am. Compl. ¶ 15.) Welsh never received any form of monthly bill or other communication from Gogo notifying him that he had signed up for automatic renewal of Gogo’s internet service. (Id.) . The allegedly unauthorized charges to his credit card stopped in February 2013, after Welsh complained to Gogo. (Id.) He was given a partial refund. (Vair Deck ¶ 9.) He then hired counsel to represent him and other consumers allegedly misled by Gogo. (Pis.’ Mem. of Law in Opp. to Defs.’ Mots, to Compel Arbitration, Transfer Venue, or, in the Alternative, Dismiss the Amended Class Action Complaint 28, ECF No. 29 (“Pis.’ Opp.”).) On July 24, 2013, Welsh’s counsel sent defendant Gogo LLC a pre-suit demand letter, as required by California’s Consumers Legal Remedies Act (the “CLRA”). (CLRA Demand Notice ¶ 10, ECF No. 29-1; see also Cal. Civ.Code § 1782 (mandating that notice and demand be given by a consumer at least thirty days prior to commencing ah action under the CLRA).) In the letter, Welsh made demands on his own behalf and on behalf of consumers similarly situated, asking for a full refund of improper charges, as well as punitive damages, attorneys’ fees, and costs. (CLRA Demand Notice.) It read as follows: Dear Sir or Madam: I send this letter to you, Gogo LLC (“Defendant”), on behalf of my client, Kerry Welsh (“Plaintiff’), and a proposed class of United States consumers who purchased one or more of your inflight Internet services (“Services”) at any time from July 25, 2009, to December 31, 2012 (the “Class”) to advise you that Defendant has violated and continues to violate California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq., as well as various other state laws, as described in the enclosed draft Class Action Complaint (the “Complaint”). I ask that Defendant remedy such violations within thirty (30) days. • Defendant’s violation of these laws stems from its deceptive representations with regard to Gogo in-flight Internet service. In particular, Defendant marketed its Services without disclosing the fact that customers would be billed and charged for the Services on a recurring, monthly basis. More specific details regarding the unlawful marketing of Defendant’s Services are provided in the Complaint enclosed herein, which is incorporated by reference into this notice letter. Defendant’s unlawful practices, as described further in the Complaint, are prohibited by California Civil Code § 1770(a), in particular because Defendant, in marketing the Services: • made deceptive misrepresentations about the Services; • represented that the Services had characteristics, uses, or benefits that they did not have; • advertised the Services with the intent not to sell them as advertised; and • attempted to insert unconscionable provisions into contracts between Defendant and Plaintiff and between Defendant and other members of the Class. My client will file the enclosed Complaint seeking, inter alia, monetary relief under the CLRA unless, within thirty (30) days, Defendant does the following: • identifies all consumers similarly situated to Mr. Welsh, i.e., all consumers who incurred monthly fees for Gogo in-flight Internet services for months that the consumers did not use the services, or make reasonable efforts to identify such consumers; • notifies all consumers so identified that upon their request Defendant will refund to the consumers the price they inadvertently paid for Defendant’s unauthorized charges; • give any such requested remedy to the consumers in a reasonable amount of time; and • immediately cease from engaging in the above-complained of methods, acts, or practices, or if immediate cessation is impossible or unreasonably expensive under the circumstances, then cease from engaging within a reasonable time. If Defendant fails to comply with this request within thirty (30) days, Defendant may be liable for the following monetary amounts under California’s Consumers Legal Remedies Act: • actual damages suffered; • punitive damages; • costs and attorneys’ fees related to suit; and • penalties of up to $5,000.00 for each incident where senior citizens have suffered substantial physical, emotional, or economic damage resulting from Defendant’s conduct. I hope, however, that Defendant will choose to correct its unlawful practices promptly. A failure to act within thirty (30) days will be considered a denial of my client’s claims, and my client will act accordingly. If you would like to discuss the matter, please do not hesitate to call me.... Otherwise, my client and I look forward to Defendant’s immediately changing its practices and compensating the above-identified individuals. (Id.) To this letter was attached a tentative federal class action complaint. (Id.) Gogo received the letter and attached complaint on July 30, 2013. (Joint Subm. 3) In August of 2013, in alleged violation of the attorney no direct contact with the client of opposing counsel rule, Gogo sent a refund check directly to Welsh without notifying his attorney. (Vair Decl. ¶ 9; Pis.’ Opp. 28.) 1. Sign-In Portal in August 2011 In August 2011, when Welsh claims to have purchased Gogo’s in-flight Wi-Fi, a potential user of the service was not required by Gogo to affirmatively assent to the website’s “Terms of Use” when creating an account. (2011 Create Account Page.) If he wanted the service, the user could click on the box next to the statement, “I agree to the Terms of Use” and/or “I would like to receive email offers and news from Gogo.” (Id.) Clicking on the ’ box next to “I agree to the Terms of Use ” did not prompt the “Terms of Use” to appear on the screen or prompt the emailing or mailing of the contract to the consumer. It can be inferred that Welsh never clicked on this box. (Kerry Welsh Decl. ¶¶ 4-11, ECF No. 52-4.) At the deposition of Gogo’s corporate representative, the following exchange took place: A: There are certain fields a customer has to fill out and there are certain fields that a customer doesn’t have to fill out [on the account creation page]. Q: ... [I]s it correct that not all fields need to be filled out? ... A: That’s correct. Q: ... [TJhe asterisk says, “Required Fields”? A: It says, “Indicates Required Fields.” Q: And there’s a required field by “Name”; correct? A: Yes. Q: And “E-Mail”; correct? A: Yes. Q: “User Name”; correct? A: Yep. Q: But if there’s not an asterisk, it’s not required; correct? ... A: If there’s [not] an asterisk, it doesn’t require the user to input text. (Sladky Dep. 47:9-11, 49:11-15, 50:5-23, ECF No. 52-2.) There is no asterisk next to the “I Agree to the Terms of Use ” field or the “I would like to receive email offers and news for Gogo” field. (2011 Create Account Page.) 2. Create Account Page (Id. (emphasis and explanations added in red).) Had Welsh clicked on the underlined phrase “Terms of Use,” a hyperlink would have been activated, connecting him to a separate screen where, after scrolling down to the eighth page of the document, he would have found this choice of law provision: Governing Law and Venue. This Agreement shall be governed by the laws of the State of Illinois, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. The parties agree that any claim or dispute one party has against the other party arising under or relating to this Agreement (including claims in contract, tort, strict' liability, statutory liability, or other claims) must be resolved exclusively by a court of competent jurisdiction, federal or state, located in Chicago, Illinois, and no other court. Each party agrees to submit to the personal jurisdiction of such courts and to accept service of process from them. (August 2011 Terms of Use 8, ECF No. 23-1 (emphasis in original).) No arbitration clause was present in Gogo’s “Terms of Use” in August 2011. (Id.) D. Plaintiff Berkson Berkson’s statement of the facts is as follows: On September 25, 2012, Berkson, a resident of New York, paid $34.95 to subscribe to Gogo’s in-flight Wi-Fi on a Delta Airlines flight from New York, New York to Indianapolis, Indiana. (Am. Compl. ¶¶ 7, 14; Vair Decl. ¶ 3; Joint Subm. 2.) Berkson’s credit card was billed $34.95 on September 25, 2012, October 25, 2012, November 26, 2012, and December 25, 2012. (Vair Decl. ¶ 3.) The total unauthorized charges he incurred from October through December 2012 amounted to $104.85. (Am. Compl. ¶ 8.) The charges to his credit card stopped after he complained to Gogo at or around “late December 2012.” (Id.; Joint Subm. 2.) Berkson never received a monthly bill or other communication notifying him that he had signed up for automatic renewal of Gogo’s in-flight Wi-Fi. (Am. Compl. ¶ 9.) He was not aware of the charges being made to his credit card (although, the court assumes he was likely to have received monthly statements from his credit card company indicating the monthly charge). When he contacted Gogo to request a refund for the time periods he was charged for the service but did not use it, the company refused his request. (Id. at ¶ 10; Joint Subm. 3.) On January 7, 2013, American Express reversed Gogo’s charges to Berkson’s credit card. (Vair Decl. ¶ 4; American Express Refund Information, ECF No. 22-1.) 1. Sign-In Portal in September 2012 In September 2012, the time period in which Berkson claims to have purchased Gogo’s Wi-Fi service, a potential user was confronted with two sign-in buttons on the Gogo webpage. (September 2012 Sign-in Page 1, ECF No. 30-2 (emphasis and explanations added in red).) The “SIGN IN” button in the upper right-hand corner sits alone. (Id.) No language either above it or near it requires a consumer to agree to any “Terms of Use.” (Id.) Towards the bottom of the page, a second “SIGN IN” button appears. (Id.) Above this “SIGN IN” button, the website indicates: “By clicking ‘Sign in’ I agree to the terms of use and privacy policy.” (Id.) The “terms of use” and “privacy policy,” which appear in lowercase and a font considerably smaller than the all caps “SIGN IN” button, appear to be hyperlinked, ie., the contractual terms will only be displayed to the user if he clicks on the underlined phrases, in this case “terms of use” or “privacy policy.” (Id.) Clicking on the “SIGN IN” button does not display either the “terms of use” or Gogo’s “privacy policy.” (Id.) 2. Create Account Page If a potential user wanted to sign up for use of Gogo’s Wi-Fi in September of 2012, the below “create account” page would be activated by him to create a username and password: (September 2012 Create Account Page 3, ECF No. 30-2 (emphasis and éxplanations added in red).) This page told the consumer: “By clicking ‘NEXT’ I agree to the terms of use and privacy policy.” (Id.) The “terms of use” and “privacy policy” would only be displayed if the user clicked on these underlined terms. (Id.) Clicking on the “NEXT” button itself would not present the “terms of use” or the “privacy policy” in a pop-up window; rather, it would merely take. the user to the following screen, which presumably asked for the user’s credit card information. (Id.) Had Berkson clicked on the “terms of use” hyperlink, after scrolling down to the seventh page of the document, he would have found this choice of law provision: Governing Law and Venue. This Agreement shall be governed by the laws of the State of Illinois, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. The parties agree that any claim or dispute one party has against the other party arising under or relating to this Agreement (including claims in contract, tort, strict liability, statutory liability, or other claims) must be resolved exclusively by a court of competent jurisdiction, federal or state, located in Chicago, Illinois, and no other court. Each party agrees to submit to the personal jurisdiction of such courts and to accept service of process from them. (September 2012 Terms of Use 7, ECF No. 23-2) (emphasis in original).) An arbitration provision was not present in September 2012 when plaintiff Berkson signed up for Gogo’s Wi-Fi. (Id) Such a provision was first inserted into the company’s “terms of use” in December 2012. (December 2012 Terms of Use 7-8, ECF No. 23-3.) The clause read in part: It is Gogo’s goal that the Site and the Service meet your expectations. However, there may be instances when you have a problem or dispute that needs special attention. In those instances, Gogo is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with Gogo, you acknowledge and agree that you will first give Gogo an opportunity to resolve your problem or dispute. This includes you first sending a written description of your problem or dispute.... You then agree to negotiate with Gogo in good faith about your problem or dispute. This should lead to resolution, but if for some reason your’problem or dispute is not resolved satisfactorily within sixty (60) days after Gogo’s receipt of your written description of it, you agree to the further dispute resolution provisions below. 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 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 your claims qualify for hearing by such court. YOU HAVE A RIGHT TO OPT-OUT OF THIS ARBITRATION AGREEMENT. IF YOU DO NOT AGREE TO THIS MANDATORY ARBITRATION PROVISION WITH REGARD TO ANY PARTICULAR INTERACTION WITH THE SITE OR THE SERVICE, THEN WITHIN THIRTY (30) DAYS FROM THE DATE OF SUCH INTERACTION, YOU MAY OPT-OUT OF THIS PART OF THE AGREEMENT .... Any opt-out received after the thirty (30) day time period will not be valid and you must pursue your claim via arbitration pursuant to these Terms. To the fullest extent permitted by applicable law, NO ARBITRATION OR OTHER CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE OR THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction and not in arbitration. WE BOTH AGREE THAT, WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, YOU AND GOGO BOTH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN US. (Id. (emphasis in original).) E. Relationship Between Gogo Inc. and Gogo LLC Plaintiffs assert that Gogo Inc. is the parent corporation of Gogo LLC. (Am. Comp. ¶ 17 (citing Gogo Inc., Registration Statement (Form S — 1) at 1 (Dec. 23, 2011), available at http://www.sec.gov).) According to Gogo Inc.’s S — 1 form filed with the United States Securities and Exchange Commission on December 23, 2011, Gogo Inc. and its subsidiaries are a combined entity. (Id.) Together, they offer “a full suite of in-flight internet connectivity and other voice and data communications products and services.” (Id.) IV. Assessing Attributes of the “Average Internet User” In the absence of expert reports comparing the average North American internet user’s understanding of websites’ “terms of use” to that of the plaintiffs in this suit, the court consulted available empirical and academic sociological studies. It did this to formulate an acceptable understanding of the knowledge reasonably attributable to today’s “average internet user” regarding electronic contracts of adhesion to obtain Wi-Fi connections on North American air flights. Social science research in the form of consumer surveys have been used in American courts for decades. See, e.g., Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp. 670, 682 (S.D.N.Y.1963) (holding that “[t]he weight of case authority, the consensus of legal writers, and reasoned policy considerations all indicate that the hearsay rule should not bar the admission of properly conducted public surveys”). A. Studies The studies proved inadequate. Those located generally fell into four categories: • The demographics of the average United States internet user. See, e.g., Pew Research Center, Internet User Demographics, (January 2014) (reproduced below) (showing the large percentage of the adult population in the United States using the internet in 2014), available at http://www. pewinternet.org/data-trend/internet-use/latest-stats (last visited Apr. 6, 2015). • The eye-tracking tendencies of the average internet user and the quantity of information read and processed by her. See, e.g., Jakob Nielsen, F-Shaped Pattern for Reading Web Content, Nielsen Norman Group (April 17, 2006) (images of eye-tracking heat map study reproduced below (“[A]reas where users looked the most are colored red; the yellow areas indicate fewer views, followed by the least-viewed blue areas. Gray areas didn’t attract any fixations.”)), available at http://www.nngroup.com/articles/f-shaped-pattern-reading-web-content (last visited Apr. 6, 2015); Jakob Nielsen, How Little Do Users Read?, Nielsen Norman Group (May 6, 2008) (empirical analysis finding that internet users on average read approximately twenty percent of the words on a web-page during an average visit), available at http://www.nngroup.com/ articles/how-little-do-users-read (last visited Apr. 6, 2015). • How text read on paper versus onscreen produces different levels of reading comprehension. See, e.g., Ferris Jabr, The Reading Brain in the Digital Age: The Science of Paper Versus Screens, Sci. Am. (Apr. 11, 2013) (collecting and discussing studies about print versus onscreen reading behavior), available at http://www. scientifieameriean.com/article.efm?id= reading-paper-screens (last visited Apr. 6, 2015). • How the average internet user interacts with privacy policies, web-based advertisements, and hyperlinks. See, e.g., Tamara Dinev and Paul Hart, Internet Privacy Concerns and Social Awareness as Determinants of Intention to Transact, 10 Int’l J. of Elec. Comm. 7, 19 (2005) (finding that privacy concerns have a minimal effect on how the average internet user engages in online transactions); Ralph Breuer, Malte Brettel, Andreas Engelen, 22 Mktg. Letters, Incorporating Long-term Effects in Determining the Effectiveness of Different Types of Online Advertising, 327, 336-38 (2011) (finding that online advertising has both short-term and long-term effects on sales, but that the duration and intensity of those effects differ for each online ad channel, e.g., emails have the longest effect, followed by banner advertising and price comparison advertising); Florencia Marotta-Wurgler, Does Contract Disclosure Matter?, 168 J. of Institutional and Theoretical Econ. 94, 94 (2012) (empirical analysis showing that increasing ease of access to online contract terms via hyperlinks had negligible impact on whether terms were read by the average internet user). See also generally Tony Haile, What You Think You Know About the Web Is Wrong, TIME (March 9, 2014) (“We are getting a lot wrong about the web these days. We confuse what people have clicked on for what they’ve read. We mistake sharing for reading. We race towards new trends ... without fixing what was wrong with the old ones and make the same mistakes 'all over again.”), available at http://time.com/12933/what-you-think-you-know-about-the-web-is-wrong (last visited Apr. 6, 2015). Of the studies located, none assessed what the average internet user perceives to be the meaning of the phrase “terms of use” or “terms and conditions,” or the degree to which he or she is aware that each time a purchase is conducted over the internet, a binding contract regarding more than just the promise to pay may be being entered into. See generally Juliet M. Moringiello, Notice, Assent, and Form in a UO Character World 10, Sw. L.Rev., forthcoming (calling for “the need for research in areas outside of the law in order to determine how readers perceive online terms”), available at http://ssrn.com/ abstract=2491249 (last visited Apr. 6, 2015). Undiscussed by courts is what the average internet user, one who does not necessarily conduct much of her business online, perceives to be the purpose of a website’s “terms of use.” Especially when presented in lowercase, this phrase does not clearly inform a user that she is subjecting herself to a one-sided contract that purports to modify her basic legal rights and remedies. Left to surmise is whether the average internet user’s perception is aligned with the real-life implications contained in the text of these terms. Courts have “decided,” based largely on speculation, what constitutes inquiry notice of a website’s “terms of use.” See infra Part V.B.2.e & 3. Reliable scientifically-based studies assessing the types of visual and written cues that put a representative sample of American society, i.e., the average internet user, on actual notice of the importance and ramifications of “terms of use” have yet to appear. Victoria C. Plaut and Robert P. Bartlett, III made an attempt in 2012, but their study is not based on the average internet user in the United States. See Victoria C. Plaut and Robert P. Bartlett, III, Blind Consent? A Social Psychological Investigation of Non-Readership of Click-Through Agreements, 36 L. & Human Behav. 293, 310-11 (2012) (empirical psychological study finding that, while undergraduate university students overestimated their understanding of electronic standard form contract terms and self-reported a low incidence of reading terms, making the terms succinct and easily readable increased rates of reading, comprehension, and possible rejection of the terms by study participants) (image of table showing rate of students’ self-reported incidence of reading electronic standard form contracts reproduced below). One study that might be replicated in the context of electronic contracts of adhesion was published by Tess Wilkinson-Ryan based on printed standard form contracts. See Tess Wilkinson-Ryan, A Psychological Analysis of Fine Print, 99 Iowa L.Rev. 1745, 1764-65, 1773-74 (2014) (empirical psychological study finding that the reactions of individuals, who were broadly representative of the United States working population, to hypothetical scenarios involving printed standard form contracts of adhesion were affected by moral and social norms, suggesting a propensity to blame others for not reading'long standard form contracts and an overconfidence in their own ability and willingness to read terms). B. Anecdotal Evidence Anecdotal evidence suggests that even those individuals with heightened expertise, who would be knowledgeable about the ramifications of internet contracts of adhesion, do not read the terms. See, e.g., Debra Cassens Weiss, Chief Justice Roberts Admits He Doesn’t Read the Computer Fine Print, ABA Journal (Oct. 20, 2010) (“Answering a student question, Roberts admitted he doesn’t usually read the computer jargon that is a condition of accessing websites.”), available at http://www. abajournal.com/news/article/chief_justice_ roberts_admits_he_doesnt_read_the_ computerJfine_print (last visited Apr. 6, 2015). Comedian John Oliver, on his June 8, 2014 Home Box Office show, “Last Week Tonight with John Oliver,” highlighted the underlying problem regarding electronic contracts of adhesion as follows: “If Apple put the entire text of Mein Kampf in their user agreement, you’d still click agree.” See Caroline Moss, “John Oliver Hilariously Explains the Dire Importance of Net Neutrality in a Way That Makes Sense,” Business Insider (June 8, 2014), available at http://www.businessinsider.com/john-oliver-explains-net-neutrality-2014-6 (last visited Apr. 6, 2015). C. The Reasonable Communicativeness Test The ability to formulate a reliable description of how the average internet user would have interacted with the “terms of use” in this case is limited. Available are the outdated fundamentals associated with the “reasonable communicativeness test” adopted by courts in the 1950s and 1960s. They were then reflecting on how to assess the .validity and enforceability of contracts produced through vending machines, and their bearing on the doctrine of inquiry notice. Their conclusions were: . (1) The burden is on the offeror to impress upon the offeree the importance of the binding contract being entered into by the latter; and (2) The duty is on the offeror to explain the relevance of the critical terms governing the offeree’s substantive rights contained in the contract. See, e.g., Steven v. Fidelity & Cas. Co. of N.Y., 58 Cal.2d 862, 27 Cal.Rptr. 172, 377 P.2d 284, 294-95 (1962) (holding that under standardized contract purchased from vending machine by airline passenger, passenger could reasonably have expected coverage for whole trip, including reasonable substituted transportation necessitated by emergency, and insurer should have plainly and clearly brought to passenger’s attention such limitation of liability if insurer did not propose such coverage); Lachs v. Fidelity & Cas. Co. of N.Y., 306 N.Y. 357, 118 N.E.2d 555, 558-59 (1954) (finding that burden was on insurer to establish that words and expressions used in airline trip insurance policy, which allegedly limited coverage to scheduled airlines, not only'were susceptible of construction' that would limit coverage to scheduled air-. lines only, but that it was the only construction which could fairly be placed on them); see also Specht v. Netscape, 306 F.3d 17, 30-32, 35 (2d Cir.2002) (applying reasonable communicativeness test to internet browsewrap contract); Juliet M. Moringiello, Signals, Assent, and Internet Contracting, 57 Rutgers L.Rev. 1307, 1334-40 (2005) (recounting history of individuals contracting via machine and the adoption of the “reasonable communicativeness test” by courts). It is not unreasonable to assume that there is a difference between paper and electronic contracting. Based on assumptions about internet consumers, they require clearer notice than do traditional retail buyers. In the absence of contrary proof, it can be assumed that the burden should be on the offeror to impress upon the offeree — i.e., the average internet user — the importance of the details of the binding contract being entered into. The burden should include the duty to explain the relevance of the critical terms governing the offeree’s substantive rights contained in the contract. See generally Nancy S. Kim, Wrap Contracts: Foundations and Ramifications 211 (2013) (“Courts justify wrap contracts by claiming that the nondrafting party manifested consent, but their construction of what constitutes manifestation of consent has wandered too far from the truth.”); see also Specht, 306 F.3d at 31-32, 35 (“We are not persuaded that a reasonably prudent offeree in these circumstances would have known of the existence of [the company’s] terms. Plaintiffs were responding to an offer [on the internet] that did not carry an immediately visible notice of the existence of license terms or require unambiguous manifestation of assent to those terms.... We conclude that in circumstances such as these ... a reference to the existence of [ ] terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.... Reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility.”). The offeror has thought through the problems with the aid of lawyers and other experts and is a “repeat player.” See Marc Galanter, Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc’y Rev. 95, 97-104 (1974) (arguing that litigants who are “repeat players” as opposed to “one-shot-ters” shape the development of the law by playing for favorable rules — settling cases likely to produce adverse precedent and litigating cases likely to produce rules that promote their interests). The consumer is usually a transient user, a “myopic” “one-shotter” experiencing “behavioral lock-in.” See Oren Bar-Gill, Seduction by Contracts:' Law, Economics and Psychology in Consumer Markets 21-22 (2012) (“Myopic consumers care more about the present and not enough about the future.... Myopia is common. People are impatient, preferring immediate benefits even at the expense of future costs.”); William Barnes, Myles Gartland and Martin Stack, Old Habits Die Hard: Path Dependency and Behavioral Lock-In, 38 J. of Econ. Issues 371-77 (June 2004) (explaining that behavioral lock-in “occurs when the behavior of the agent (consumer or producer) is ‘stuck’ in some sort of inefficiency or sub-optimality due to habit, organizational learning, or culture”). V. Contract Formation and Assent A substantial number of court opinions in recent years assume the validity of provisions contained in online contracts of adhesion. The starting point of analysis must be the method through which an electronic contract of adhesion is formed. The inquiry does not begin, as defendants argue, with the content of the provisions themselves. A. Legal Research and Scholarship Sometimes forgotten in the Internet Age — where contracts of adhesion are often the rule for online consumers — is the essential element of contract formation: mutual manifestation of assent. See Mark A. Lemley, Terms of Use, 91 Minn. L.Rev. 459, 459-60 (2006) (noting how courts are moving away from the principle that affirmative evidence of agreement is necessary to find a contract binding); cf. Ty Tasker and Daryn Pakcyk, Cyber Surfing on the High Seas of Legalese: Law and Technology of Internet Agreements, 18 Alb. L.J. Sci. & Tech. 79, 100 (2008) (“A user’s assent may ... be debatable where terms of use expressly state that acceptance occurs by ‘clicking’ on a button (as is typical), but instead the user presses the ‘enter’ key.”); Christina L. Kunz, et al, Browse-Wrap Agreements: Validity of Implied Assent in Electronic Form Agreements, 59 Bus. Law. 279, 309 (2003) (“Because of the inherent ambiguity in acceptance by conduct, acceptance [of an internet contract] sometimes will not be valid because the user performed the conduct without intending to accept contract terms or without realizing he or she was accepting contractual terms. If the user’s assent was truly by mistake, the common law defense of unilateral mistake or mistake in transmission may be available.... ”). Fading into the background are the “battle of the forms” debates, of the late twentieth century, challenging the use of “boilerplate” contract terms by powerful corporations. See generally U.C.C. § 2-207; Douglas G. Baird and Robert Weisberg, Rules, Standards, and the Battle of. the Forms: A Reassessment of 2-207, 68 Va. L.Rev. 1217 (1982). 1. “Informed Minority” Hypothesis Lauded by many law and economic experts is the “informed minority” hypothesis, which presumes that, in competitive markets, “a minority of term-conscious buyers is sufficient to discipline sellers from using unfavorable boilerplate terms.” Yannis Bakos, Florencia Marotta-Wurgler and David R. Trossen, Does Anyone Read the Fine Print? Consumer Attention to Standard Form Contracts, 43 J. Legal Stud. 1, 1 (2014). See also, e.g., Robert A. Hillman and Jeffrey J. Rachlinsky, Standard Form Contracting in the Electronic Age, 77 N.Y.U. L.Rev. 429, 441-45 (2002) (describing pros and cons of the “informed minority” hypothesis). Recent empirical studies analyzing the internet browsing behavior of consumers cast significant doubt on the applicability of the “informed minority” assumption to online shoppers. See Bakos et al., 43 J. Legal Stud, at 32 (finding that between 0.05% and 0.22% of online shoppers access online agreements); see also James Gibson, Vertical Boilerplate, 70 Wash. & Lee L.Rev. 161, 170-80 (2013) (questioning the assumption of the “informed minority” hypothesis that presupposes consumers evaluate standard form contract terms). 2. American Bar Association Working Group In 2003, the American Bar Association (“ABA”) Joint Working Group on Electronic Contracting Practices (“Electronic Contracting Working Group of the ABA”), comprised of members from within the Electronic Commez*ce Subcommittee of the Cyberspace Law Committee and the Uniform Commercial Code Committee of the Business Law Section of the ABA, laid out recommendations regarding what constitutes adequate notice in the electronic contracting context. See Kunz, et al., 59 Bus. Law. at 279 (summarizing findings of the Electronic Contracting Group of the ABA). It wrote: In an electronic setting, the user can be given adequate notice of the existence of terms by a scroll box revealing a portion of the terms or by a well placed phrase or sentence in a format calculated to be apparent to the typical user of that Web site.... [W]e suggest that care be taken to make sure that any linking capability of the phrase or sentence is clear to the reasonable user. [C]lear language in a hyperlink that the terms constitute a proposed agreement is more likely to result in a binding contract. For example, a hyperlink that makes the statement, “Use of this Web site is subject to our terms of use, click here to read,” is more informative than a hyperlink that states simply, “Terms of Use.” Even more informative would be a hyperlink that states the following: “By going beyond this page, you are deemed to have agreed to our terms of use.” Id. at 291, 293-94. The Electronic Contracting Working Group of the ABA suggested that a user should only be considered to have “validly and reliably” assented to the terms of an electronic agreement if the following four conditions are met: (1) The user is provided with adequate notice of the existence of the proposed terms. (2) The user has a meaningful opportunity to review the terms. (3) The user is provided with adequate notice that taking a specified action manifests assent to the terms. (4) The user takes the action specified in thé latter notice. Id. at 281. Over a decade has passed since these recommendations were made. “Unfortunately, many courts have not followed [them] and have instead[] swapped the signpost for the information, disregarding that notice requires both attracting user attention and providing at least some of the relevant information.” Kim, Wrap Contracts, at 132 (emphasis in original). 3. Traditional Contract Doctrine and the Internet Age Consumers spent over $300 billion in online purchases in 2014. See Allison En-right, U.S. Annual E-retail Sales Surpass $300 Billion for the First Time, interne-tRETAILER (February 17, 2015), avail able at https://www.internetretailer.com/ 2015/02/17/us-annual-e-retail-sales-surpass300-billion-firs1>-ti (last visited' Apr. 6, 2015). “Most Americans now do some business over the Internet — whether making purchases or participating in a community at the pleasure of a forum host. When we do, we are almost always presented (clearly or opaquely) with contractual terms governing our use of the site.” Jessica L. Hubley, How Concepcion Killed the Privacy Class Action, 28 Santa Clara Computer & High Tech. L.J. 743, 749 (2012). The studies conducted to date and their implications reinforce the need to reconsider principles underlying contract law, developed in an age of paper and orality. Nancy S. Kim, in her treatise Wrap Contracts: Foundations and Ramifications, “summarizes the [ten] doctrinal rules that are unique to internet-based wrap contracts, by comparing each rule to its traditional doctrine counterpart”: 1. Wrap doctrine: The assent of the nondrafting party is demonstrated by “notice” of legal terms and “manifestation of consent.” The offeree may receive notice after undertaking the acts that constitute acceptance. Manifestation of consent may mean that the adhering party has accepted by acting in a way that does not clearly indicate intent to accept the terms. Traditional contract doctrine: Reasonable notice must be given prior to the acts constituting acceptance. The conduct of a party is not effective as a manifestation of consent unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents. 2. Wrap doctrine: Manifestation of consent can mean the adhering party has not actively rejected the terms. Traditional contract doctrine: Silence generally does not constitute acceptance. The offeror cannot require the offeree to actively reject unless otherwise agreed by the parties. 3. Wrap doctrine: Manifestation of consent may mean that the adherent was in the process of undertaking an action, such as viewing content on a website or purchasing a product on a website, when the terms presented an impediment which the adhering party then removed. The terms may also be imposed without impediment while the adhering party is engaged in an activity, so that the activity continues in a seamless manner. Traditional contract doctrine: Luring users to an activity (such as advertising a big sale at a store) and then imposing a contract after the user has commenced an activity in an unobtrusive (ie., “sneaky”) manner could be viewed as a “bait and switch” tactic. Traditional contract law recognizes fraud, unilateral mistake, and uncon-scionability as contract defenses to bait-and-switch tactics. Section 5 of the Federal Trade Commission Act prohibits unfair and deceptive trade practices, and state legislation also prohibits bait-and-switch tactics. 4. Wrap doctrine: Notice means that some terms were visible that indicated legal terms applied to the activity that was being undertaken by the adhering party. Notice does not mean that the legal terms themselves were visible. Traditional contract doctrine: Contract wording must be conspicuous. 5. Wrap doctrine: Where a party has the power of acceptance, contract is not formed by acceptance but can be later modified and integrated by reference to other agreements. Traditional contract doctrine: Where a party has the power of acceptance, act of acceptance triggers contract formation. Modifications and addendums to contract require new consideration. 6. Wrap doctrine: Constructive notice is effective to incorporate other documents by reference. Traditional contract doctrine: In order to incorporate another document by reference into an agreement, the agreement must clearly evidence intent that the document be made a part of the agreement. 7. Wrap doctrine: The terms of an offer can be indefinite and modified at will. Traditional contract doctrine: Offer and acceptance must express a present intent to enter into a contract and terms of an offer must be definite. 8. Wrap doctrine: The nondrafting party bears the burden of [showing] contracting ambiguities and opaqueness. Traditional contract doctrine: Contract ambiguities and opaqueness are construed against the drafting party. 9. Wrap doctrine: Every contract should be analyzed as though it were a negotiated paper agreement that is signed by both parties. Traditional contract doctrine: Special rules apply to certain standard form contracts, such as airline tickets or insurance contracts. The “reasonable communicativeness” test considers both the physical characteristics of the contract and extrinsic factors, such as the contracting environment. 10. Wrap doctrine: A reasonable prudent offeree is one that is uniquely diligent, overly cautious, highly knowledgeable about wrap contract doctrine, exceptional at multitasking, infinitely patient, and likely does not exist in the real world. Traditional contract doctrine: A reasonable offeree is judged based upon the standard of an ordinary person standing in the shoes of the offer-ee. Kim, Wrap Contracts, at 109-11. “While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract.” Register.com, Inc. v. Verio, 356 F.3d 393, 403 (2d Cir.2004); see also, Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1175 (9th Cir.2014) (same); Treiber & Straub, Inc. v. U.P.S., 474 F.3d 379, 385 (7th Cir.2007) (same). “[G]iven the expansive and open nature of the World Wide Web, providers should not be permitted to enforce overreaching terms in court by stating relatively hidden provisions purporting to expose average users or consumers to ... unexpectedly oppressive obligations.” Tasker and Pakcyk, 18 Alb. L.J. Sci. & Tech, at 148; see also supra Part IV. Experts in commercial practice have recommended as best practices for businesses that they ensure internet users have a realistic opportunity to read the “terms of use” on a business’s website. See, e.g., Allison S. Brehm and Cathy D. Lee, “Click Here to Accept the Terms of Service,” 31-WTR Comm. Law. 4, 6-7 (2015). Designing a website so that the user must scroll through the “terms of use” and click “accept” in order to complete an internet transaction is one such good practice. Id. at 6. For ease of reference, and to create a necessary distinction from cliekwrap agreements, the instant memorandum refers to such contracts as “scrollwraps.” Cf. Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1257-58 (10th Cir.2012) (holding internet agreement valid under Florida and Oklahoma law where process gave customer opportunity to review internet terms in scrolling text box; customer had to click an “I Agree” button to manifest assent to internet terms in order to continue with registration process and activation of internet service). As indicated below, Google Analytics, for example, uses scroll-wraps. Google Analytics, available at http://www. google.com/analytics (last visited Apr. 6, 2015) (“Google Analytics Scrollwrap Agreement”) (pop-window with terms accessed by clicking button marked “Access Google Analytics” from homepage, clicking button on next page marked “Sign up,” then filling information into form on next page and clicking button at bottom marked “Get Tracking ID”). B. Law 1. Choice of Law Determining the validity and enforceability of a contract is an issue of substantive state law. See, e.g., Specht, 306 F.3d at 27 (“[I]n deciding whether parties agreed to arbitrate a certain matter, a court should generally apply state-law principles to the issue of contract formation.”); see also Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987) (“[S]tate law, whether of legislative or judicial origin, is applicable [to the determination of whether the parties agreed to arbitrate] if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.”); Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (holding that in federal courts, except in matters governed by the Federal Constitution or by acts of Congress, substantive law to be applied is law of the state). Relying on a contractual provision before a contract has been found to have been accepted by the parties as binding is unacceptable. “Applying the choice-of-law clause to resolve the contract formation issue would presume the applicability of a provision before its adoption by the parties has been established.” Schnabel v. Trilegiant Corp., 697 F.3d 110, 119, 126-27 (2d Cir.2012). See also, e.g., Trans-Tec Asia v. M/V Harmony Container, 518 F.3d 1120, 1124 (9th Cir.2008) (“[W]e cannot rely on the choice of law provision until we have decided, as a matter of law, that such a provision was a valid contractual term and was legitimately incorporated into the parties’ contract.”); Van Tassell v. United Mktg. Grp., LLC, 795 F.Supp.2d 770, 787-88 (N.D.Ill.2011) (“The Court agrees that Defendants have put the cart before the horse in arguing that the scope of the arbitration agreement encompasses Plaintiffs’ claims before establishing the existence or validity of any agreement.”). In the instant case, the substantive contractual laws of New York, California, and Illinois are at issue. These states laws are substantively similar with respect to the issue of contract formation. See infra Part V.B.2. 2. Common Law Contracting a. Acceptance “Mutual manifestation of assent” is the “touchstone” of a binding contract. Specht, 306 F.3d at 29 (citations omitted) (applying New York and Utah law in denying enforcement of arbitration clause where software user was not given sufficient notice of terms of agreement). A “transaction,” even if created online, “in order to be a contract, requires a manifestation of agreement between the parties” as to its terms. Id. at 28 (citations omitted). Where the terms of the contract are offered by one party to another, unequivocal acceptance of the terms by the receiving party is required. “As a general principle, at common law[,] an acceptance [of a contract], in order to be effective, must be positive and unambiguous.” 2 Williston on Contracts § 6:10 (4th ed.). [CJonduct manifesting [acceptance] may be words or silence, action or inaction, but the conduct of a party is not effective as a manifestation of his [acceptance] unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he [accepts]. Schnabel, 697 F.3d at 120 (internal quotation marks and citations omitted). See also, 22 N.Y. Jur.2d Contracts § 46 (2015) (sufficiency of acceptance of offer under New York law); 14 Cal. Jur.3d Contracts § 82 (2015) (same under California law); 12 Ill. Law and Prac. Contracts § 25 (2015) (same under Illinois law). b. Adhesion Contracts In the modern commercial world, there are reasons to allow parties to contract without the consideration or negotiation of every term. Schnabel, 697 F.3d at 124 (holding that where purported assent to a contract is largely passive, the contract-formation question will often turn on whether a reasonably prudent offeree would be on notice of the terms at issue). A contract on a printed standardized form that is offered on a take-it or leave-it basis — usually by a merchant that monopolizes a particular market, or whose bargaining power signi