New York State Court Refuses to Enforce Website’s Forum Selection Clause Reply

E-Commerce News provided by BuckleySandler LLP for informational purposes only, and should not be construed as legal advice on any subject matter.

April 7, 2012

On March 20, New York’s District Court of Nassau County refused to enforce a forum selection clause because the defendant did not make an affirmative effort to reasonably communicate that key term to the other party or otherwise do enough to ensure the clause became a part of the parties’ contract. Jerez v. JD Closeouts, LLC, No. CV-024727-11, 2012 WL 934390 (N.Y. Dist. Ct. Mar. 20, 2012). The plaintiff filed suit alleging that products ordered over the Internet following an e-mail solicitation from the defendant were defective. The defendant moved to dismiss, arguing that a forum selection clause in the parties’ contract required that the dispute be heard in a Florida state court. The court found that the forum selection clause was not reasonably communicated through any of a printed contract, a confirming letter agreement incorporating provisions from the website by reference, or a click-through acceptance. Rather, the court found, the clause was included in terms and conditions “buried” and “submerged” on the defendant’s website, on a page “that could only be found by clicking on an inconspicuous link to the company’s ‘About Us’ page.” The court denied the defendant’s motion to dismiss.

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