Citation Edit

Greer v., Inc., 2007 WL 3102178, 2007 US Dist. LEXIS 73961 (S.D. Tex. Oct. 03, 2007).

Factual Background Edit

Plaintiff ordered flowers and inquired about’s (FLOWERS) privacy policy from their website for his girlfriend. Plaintiff alleges that subsequent to purchase, at his wife’s request, FLOWERS sent her a copy of Plaintiff’s receipt and identifying information which breached the privacy policy. Plaintiff claims this conduct caused damages in connection with his divorce.

Trial Court Proceedings Edit

FLOWERS filed a motion to dismiss, arguing that venue was improper because the Privacy Policy Terms of Use included a forum selection clause stating “for all claims and disputes arising under the Terms of Use or in connection with this WebSite shall be the appropriate state or federal courts located in Nassau or Suffolk counties in the State of New York ....” Plaintiff argued that the forum selection clause should not be enforced because it did not “figure prominently” and he did not have notice of the provision.

The court found that the contract clearly stated that the Privacy Policy is part of the Terms of Use governing the website, which contained the forum selection clause. A “forum selection provision in a written contract is prima facie valid and enforceable unless the opposing party shows that enforcement would be unreasonable.”[1] In determining whether the clause is unreasonable, four factors are considered: (1) Whether the incorporation of the forum selection clause into the agreement was the product of fraud or overreaching;(2) Whether the party seeking to escape enforcement will for all practical purpose be deprived of his day in court because of grave inconvenience or unfairness of the selected forum; (3) Whether the fundamental unfairness of the chosen law will deprive the plaintiff of a remedy;(4) Whether the enforcement of the forum selection clause would contravene a strong public policy of the forum state.[2]

Plaintiff's only argument was that enforcement would contravene public policy. Plaintiff claims to have been relying on the Privacy Policy and failed to review the Terms of Use. The privacy policy was however a portion of the Terms of Use. Had he reviewed the Terms, he would have been given notice — on the first page and in all capital letters — that by accessing the website he agreed to be bound by the Terms of Use and that any “claim relating to this Web Site” or its content was subject to a forum selection clause. The court granted the motion to dismiss.

References Edit

  1. Kevlin Servs., Inc. v. Lexington State Bank, 46 F.3d 13, 15 (5th Cir.1995).
  2. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).

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