Williams v. America Online, Inc., 2001 WL 135825, 2001 Mass. Super. LEXIS 11 (Mass. Super. 2001) (full-text).
Factual Background Edit
Mark and Sandra Mastroianni installed America Online (“AOL”) Version 5.0 onto their personal computer. Immediately after installing the program, their computer could not access non-AOL Internet service providers, run non-AOL email programs or access personal information and files.
Trial Court Proceedings Edit
On April 7, 2000, Mark and Sandra Mastroianni, as class representatives of other similarly situated Massachusetts citizens filed suit against AOL claiming that the Version 5.0 software changed the user's “computer configuration at the beginning of the installation process before plaintiffs . . . had an opportunity to agree to AOL's ‘Terms of Service (TOS),’ which includes the forum selection clause requiring exclusive jurisdiction in Virginia. [Note: Virginia has enacted the Uniform Computer Information Transactions Act ].
Their complaint alleged negligence, breach of good faith and fair dealing, breach of implied warranties, fraud, negligent misrepresentation and tortious interference with contract. The suit was filed in Massachusetts. AOL moved for dismissal for improper forum claiming that the any consumer suit arising from the use of the software must be filed in Virginia in accordance with the forum selection clause in the terms of service (“TOS”) that the Plaintiffs were required to agree to in order to successfully install the Version 5.0 software.
Plaintiffs contended that the forum selection clause should not be enforced because the damage to their computer had already occurred before they were prompted to agree to the TOS, since the TOS popped up when installation was nearly complete.
One expert testified in the Massachusetts court that he cancelled the AOL 5.0 installation and did not accept the TOS, but “his computer configuration had already been ‘extensively modified’ and his ‘previously working internet connection was rendered non-functional’. . . .”
AOL responded by noting that plaintiffs were already AOL subscribers when they installed Version 5.0, and the earlier TOS also included the forum selection clause. To this assertion, Judge Hinkle stated:
|“||[T]he fact that plaintiffs may have agreed to an earlier TOS or the fact that every AOL member enters into a form of TOS agreement does not persuade me that plaintiffs and other members of the class they seek to represent had notice of the forum selection clause in the new TOS before reconfiguration of their computers.||”|
And, she continued, “Public policy suggests that Massachusetts consumers who individually have damages of only a few hundred dollars should not have to pursue AOL in Virginia.” A third factor was that the MDL Panel had transferred all of the federal cases to Florida. “If AOL can make its witnesses and documents available in Florida for every federal case, defending this action is Massachusetts should cause AOL no harm.”
The motion to dismiss was denied.