Enforcement of a Click-wrap License Agreement

Consumers who casually, even blindly, accept “click-wrap” or “browse-wrap” license agreements will be bound by those agreements so long as the user had a reasonable opportunity to accept or reject the proffered license. A recent case provides a blueprint for how to offer, and then how to enforce, a click-wrap agreement. In Zaltz v. JDate, No. 12-CV-3475 (JFB) (ARL) (E.D.N.Y. July 8, 2013), the court held that the plaintiff was bound by the defendant’s click-wrap license agreement, and then enforced that agreement’s forum selection clause against the plaintiff, transferring the case to California.

The plaintiff, Zaltz, sued the matchmaking website JDate, alleging that JDate had improperly billed and harassed her. JDate, citing the forum selection clause in its license agreement, moved to dismiss for improper venue, or alternatively to transfer the case to California.

The plaintiff alleged “in a conclusory fashion that she does not believe that she agreed to such a forum selection clause,” but “the evidence suggests that she, in fact, did.” The plaintiff submitted no evidence to controvert the defendant’s proof, via an employee declaration, website screenshots, and its current website, “that plaintiff could not have signed up to participate on the site without agreeing to its terms and conditions, which included the California forum selection clause.”

The law is clear that forum selection clauses are prima facie valid, and unenforceable only if enforcement would be “unreasonable and unjust,” or the result of fraud or over-reaching. Under the Second Circuit’s framework, forum selection clauses are “presumptively enforceable” where the movant can show “(1) the clause was reasonably communicated to the party challenging enforcement; (2) the clause is mandatory rather than permissive in nature; and (3) the claims involved are subject to the clause.”

The forum selection clause at issue here clearly specified that venue would lie with California courts, and that the parties agreed to be subject to the personal jurisdiction of Los Angeles, California courts. The plaintiff claimed not recalling agreeing to this provision. However,

[t]he fact that plaintiff cannot remember the terms that she was presented with when she joined, or that she simply does not believe that she agreed to suit in California, does not negate the uncontroverted and overwhelming evidence demonstrating that plaintiff could not have become a member of JDate.com without first agreeing to the website’s Terms of Service, which included the forum selection clause.

Indeed, JDate submitted a declaration explaining that, to join the site, a member would have had to have clicked “a specific box to accept the Terms of Service . . . confirming that he or she has read and agreed to the Terms of Service and which features a hyperlink to a webpage displaying the Terms of Service.” The plaintiff did not dispute that this process was in place when she signed up for JDate.

Further, the Terms of Service were fairly communicated to the plaintiff. This case was unlike Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 29-30 (2d Cir. 2002), in which a user could not have assented to terms supposedly accepted by clicking to download a plug-in, when those terms were not available until after the plug-in was downloaded. Here, as in the recent case of Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 834-35 (S.D.N.Y. 2012), the license agreement was “a hybrid of a browsewrap and a clickwrap agreement” because, as with a browse-wrap agreement, “the terms are only visible via a hyperlink, but also somewhat like a clickwrap agreement in that the user must do something else — click ‘Sign Up’— to assent to the hyperlinked terms.” As the Fteja court further explained, clicking on a hyperlink to see in agreement “is the twenty-first century equivalent of turning over the cruise ticket” to see an agreement.

The agreement here was even more clearly accepted than the agreement in Fteja v. Facebook, because

whereas Facebook’s Terms of Use were referenced below the button a prospective user had to click in order to assent, defendant’s reference to its Terms and Conditions of Service appear above the button [citation omitted], thereby making it even more clear that prospective members of JDate.com are aware that by clicking the button to move forward in the registration process, they manifest their assent to the Terms and Conditions of Service referenced above.

The plaintiff did not meet “her heavy burden of establishing that the enforcement of defendant’s mandatory forum selection clause, which was reasonably communicated to her, would be unreasonable.” Accordingly, the defendant’s forum selection clause was valid and enforceable. After a rather lengthy analysis of the effect of the forum selection clause, the court found that transfer of the case to the Central District of California was warranted.

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