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A Miami federal judge on Monday allowed a lawsuit to proceed against the government over its fees for using the federal courts’ Public Access to Court Electronic Records system.

The decision comes several months after a class was certified in a District of Columbia case claiming excessive PACER fees.

Plaintiff Thomas D’Apuzzo filed the Miami class action alleging PACER improperly charged him and others to access judicial opinions, which are supposed to be free to view. The government moved to dismiss the lawsuit for lack of subject-matter jurisdiction and failure to state a claim.

U.S. District Judge Robert Scola denied the motion, finding D’Apuzzo properly claimed a contract exists between PACER users and the government through the Administrative Office of the U.S. Courts. D’Apuzzo said the contract was a “clickwrap agreement” in which a user clicks “I agree” to a list of terms and conditions. Such contracts are enforceable, Scola wrote.

“The government is effectively asking the court to conclude that the clickwrap agreement at issue did not create contractual obligations on the part of the government,” the judge wrote. “But such a conclusion requires the court to interpret the agreement, which the court will not do at the motion to dismiss stage.”

Scola allowed all of D’Apuzzo’s claims — breach of contract, breach of the implied covenant of good faith and fair dealing, and illegal exaction — to survive.

D’Apuzzo is represented by Nicole Giuliano of Giuliano Law in Fort Lauderdale and John Van Ness of Van Ness Law Firm in Hollywood.

Assistant U.S. Attorney Alicia Welch of Miami represents the government.

Contact Celia Ampel at campel@alm.com. On Twitter: @CeliaAmpel


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