Adulterous douchebags and forum selection clauses

You wouldn’t think these two topics could mesh so seamlessly, but Leroy Greer found a way to pull it off.

Mr. Greer, romantic devil that he is, called 1-800-FLOWERS to order a lovely bouquet for his girlfriend. Having a wife on the side, he was concerned about secrecy and asked the person on the phone about the company’s privacy policy. The phone jockey referred him to the written privacy policy on the company website, 1-800-flowers.com.  Having reviewed the policy and  found it satisfactory, Leroy called back and placed his order.

The company apparently sent a “Thanks for your order” card to the Greer residence. Leroy’s wife saw the card and launched an investigation that ultimately led to her discovery of Leroy’s whoring around, the girlfriend’s name and address, and even a copy of the message card Leroy send with the flowers. Divorce proceedings are under way.

Leroy sued 1-800-FLOWERS and affiliated companies in the U.S. District Court for the Southern District of Texas.  His complaint (pdf, 47 pages) alleged causes of action for breach of contract — the contract being the online privacy policy — and violations of the Texas Deceptive Trade Practices Act. Incredibly enough, he actually found a lawyer willing to shovel this pile of shit.

Trouble is, the company’s online privacy policy expressly states that it’s part of the online Terms of Use, and the buried deep within the Terms of Use is what’s called a forum selection clause. The last sentence in the paragraph under the heading Applicable Laws reads:

The exclusive venue and jurisdiction for all claims and disputes arising under the Terms of Use or in connection with this Web Site shall be the appropriate state or federal courts located in Nassau or Suffolk counties in the State of New York and you and we hereby submit to the exclusive jurisdiction of these courts.

I can pretty much guarantee that at some point in your life you’ve been subject to some sort of forum selection clause. Have you ever been on one of those fancy cruises? If so, your ticket almost certainly included a provision that any lawsuit against the cruise line must be filed in Bumblefuck, Florida or some such place. Such clauses appear regularly in all sorts of adhesory consumer contracts.

But that can’t possibly be enforceable, right?  I mean, how can you reasonably be bound by some boilerplate verbiage foisted upon you by the company that was never bargained for and you didn’t even know was there?

Oh yes, my brothers, forum selection clauses are entirely binding. Courts consider them presumptively valid and will enforce them unless the party trying to avoid the clause can prove that enforcement would be unreasonable. In this context, the reasonableness requirement is entirely for show. You won’t have to rummage through the case law very long to see that, as a practical matter, pretty much all forum selection clauses are “reasonable.”

The defendants moved to dismiss the case based on the forum selection clause. The clause precluded Leroy from filing in Texas, the defense argued. If he really wants to pursue these claims, his only option is suing in New York.

Leroy’s lawyers responded, “OMG WTF!!!1! Leroy didn’t order the flowers online, so the clause is inapplicable!”  The problem, of course, is that Leroy’s complaint asserts claims based exclusively on alleged violations of the website privacy policy. The privacy policy is part of the Terms of Use, which includes the forum selection clause. Oops. Case dismissed (pdf, 7 pages).

Greer’s lawyer says they’re prepared to fight on in New York. Good luck with that, and thanks a goddamn million for doing your part to ensure that people with righteous claims can’t get a fair shake in court nowadays.

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