On a nearly daily basis, each of us is asked or asks others to agree to be bound by “terms of use” or “terms of service” (TOS) as a condition of using an Internet website or obtaining goods or services offered through a website. Whether or not TOS are enforceable continues to be a question that reaches New York courts with some regularity. This column reviews a number of recent decisions analyzing this issue, in which the “process” used to present the TOS and secure consent to be bound thereby was at least as important as the terms themselves.
Arbitration
Several weeks ago, the U.S. District Court for the Southern District of New York decided Starke v. Gilt Groupe.1 In this case, Adam Starke brought a putative class action against Gilt Groupe, alleging that Gilt had misrepresented that the textile products it sold on its website were made of bamboo fibers because, in fact, they were woven from bamboo derivatives.
