Connecticut Court Upholds ISP Forum Selection Clause

In December 2003, the Connecticut District Court upheld the forum selection clause in America Online's (AOL) Member Agreement and granted its motion to dismiss a suit launched by a subscriber. The plaintiff, Clifton Freedman, sued AOL in Connecticut for unlawfully publicly disclosing his identity and personal information. AOL countered by launching a motion for dismissal given that the forum selection clause in its Member Agreement explicitly states that all claims or disputes must take place in and are subject to Virginia law. According to the Court, forum selection clauses are prima facie valid and should be enforced unless "unreasonable" or legally invalid. Such clauses can bind parties when the agreement is a standard form consumer contract, where there is uneven bargaining power and the contract is not subject to negotiation. However, on the question of reasonableness, the court noted that mandatory forum selection clauses have been found to be unreasonable if: i) their incorporation into the contract was the result of fraud or overreaching; ii) the complaining party would be deprived of his/her day in court due to grave inconvenience or unfairness of the selected forum; iii) the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or iv) the clause contravenes a strong public policy of the forum state. The plaintiff failed to show that the forum selection clause was unreasonable and, accordingly, AOL's motion for dismissal was granted. To read the decision, see: http://www.ctd.uscourts.gov/Opinions/120503.PCD.Freedman.pdf. Summary by: Colin Adams