‘SIGN-IN-WRAPS’ SPREADING FROM COURT TO COURT

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A new breed of online agreements is making its way through the federal district court system.

Sign-in-wraps—agreements in which users assent to the terms of a website when they sign up to use that site’s services—has joined the family of agreements that already included clickwraps—users must affirmatively check a box or click an “I agree” button to assent to terms—and browsewraps, in which the terms are typically available via a hyperlink at the bottom of the screen.

Sign-in-wraps have been around for a while, but it wasn’t until last year that a federal judge coined the term.  Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York came up with the phrase in April 2015 in a case called Berkson v. Gogo LLC.  In that case, Weinstein held that an in-flight entertainment website’s design didn’t give a consumer sufficient notice that he was agreeing to the site’s terms when he clicked on the “sign in” button.

So far, four subsequent decisions have adopted the term “sign-in-wrap.”  Judge Weinstein wrote one of those four, but the others came from district courts in the Southern District of New York, Massachusetts and the District of Columbia.

The latest judge to use the term held on Nov. 1 that an Airbnb Inc. user, who brought racial discrimination claims against the company, had sufficient notice of an arbitration clause when he signed up to use the service.   Airbnb’s mobile sign-up screen contained the text “By signing up, I agree to Airbnb’s Terms of Service,” in dark font against a white background and near all three sign-up buttons, Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia said in a case called Selden v. Airbnb.

Cooper also said it is now commonplace that any “reasonably-active adult consumer” should know that by signing up for a service, he or she is accepting the terms of the provider.

Cooper had suggested in a parenthetical that “sign-up-wrap” is a more appropriate name than “sign-in-wrap.”  We’ll see if that name catches on as well.