Can Forum-Selection Clauses in Online Agreements Be Enforced?

Joshua Gilliland has written a post on his blog, “Bow Tie Law,” about a case involving an Internet-research company that monitors the computer usage of consumers who install its software. Harris v. Comscore, Inc., No. 11-CV-05807 (N.D. Ill. 2011) (slip op; 10-7-11). The plaintiffs sued comScore for improperly obtaining and using personal information from users who installed the company’s software. The defendant moved to dismiss the suit or, in the alternative, transfer venue based on a forum-selection clause in its license agreement. Id.

The plaintiffs successfully argued that it would be unreasonable to enforce the forum-selection clause because it was obscured so that the average user could not find it. Gilliland restates the court’s ruling as follows:

As the Court explained, “it is not reasonable to expect a user casually downloading free software to search for such an agreement if it is not immediately available and obvious where to obtain it.”

As consumers conduct more and more business online, expect other courts to address this issue. For more on the enforceability of forum-selection clauses, check out the sections on forum-selection clauses in O’Connor’s Federal Rules * Civil Trials (ch. 3-D, §3.3.3), O’Connor’s California Practice * Civil Pretrial (4-F, §3), and O’Connor’s Texas Rules * Civil Trials (ch. 3-D, §6).