Teta v. Go New York Tours, Inc.

Background

Cindy Teta and Motty Stein sued Go New York Tours, Inc., doing business as Topview Sightseeing and Event Cruises NYC, individually and on behalf of similarly situated consumers. They alleged that Go New York’s website did not disclose additional ticket fees before customers selected tickets for purchase and increased the price during the purchasing process, violating New York Arts and Cultural Affairs Law § 25.07.

Customers purchasing tickets had to agree to website terms through a clickwrap agreement. The linked terms disclosed a mandatory arbitration provision requiring individual arbitration and barring class arbitration and other representative proceedings.

Go New York moved to compel arbitration. On July 1, 2024, the Court granted that motion and instructed the parties to indicate whether they wanted the case stayed rather than dismissed. The case was stayed pending arbitration. Teta and Stein then moved for certification of an interlocutory appeal—an appeal before final judgment—from the order compelling arbitration.

Legal standard

Under 28 U.S.C. § 1292(b), a district court may certify an interlocutory appeal if the order involves a controlling question of law, there is substantial ground for disagreement about that question, and an immediate appeal may materially advance the end of the litigation. The Court emphasized that such appeals are strongly disfavored because federal practice generally postpones appellate review until final judgment.

Court’s analysis

The plaintiffs proposed asking whether an arbitration clause covering a contract and its services also covered conduct occurring before the agreement was made. The Court concluded that answering this question required determining whether the ticket purchase was pre-agreement marketing conduct or a service provided through the website. That determination primarily involved facts and would require reviewing the record. It therefore was not a “pure” question of law suitable for certification.

The Court also held that the proposed question was not controlling. Reversal of the arbitration order would not immediately end the plaintiffs’ claims or determine whether they were entitled to relief. It would instead change the forum—court or arbitration—in which the claims would proceed.

The Court further found no substantial ground for disagreement. It reasoned that the website presented a clickwrap agreement requiring purchasers to confirm that they agreed to the terms, and that the arbitration provision appeared in the first paragraph of those terms. The Court relied on established principles that online users may be bound by arbitration provisions when they receive reasonable notice of them. It also found that its ruling did not conflict with other decisions in the district and did not present a difficult or novel legal issue.

Finally, the Court ruled that an immediate appeal would not materially advance the litigation. An appeal might avoid individual arbitration if the order were reversed, but it could also delay the case if the appeal were unsuccessful or not heard. The Court concluded that the appeal was not guaranteed to speed resolution and might cause further delay. It also noted that district courts retain discretion to deny certification even when the statutory criteria appear satisfied.

Disposition

The Court denied Teta and Stein’s motion for certification of an interlocutory appeal and directed the Clerk of Court to terminate the motion. The opinion did not decide the merits of the underlying claim under New York Arts and Cultural Affairs Law § 25.07.