Ajemian v. Yahoo!, Inc.
987 N.E.2d 604
Mass. App. Ct.2013Background
- Plaintiffs are William and Marianne Ajemian and Robert Ajemian, coadministrators of John G. Ajemian’s estate, who filed a declaratory judgment in the Probate and Family Court seeking a ruling that Yahoo emails in John’s Yahoo account are estate property.
- A probate judge dismissed the second action, citing a forum selection clause directing California and res judicata based on the first action, and dismissed without prejudice pending California resolution.
- John opened a Yahoo email account in 2002 for his use; Robert acted as co-user and password holder with access; the 2002 Terms of Service (TOS) included a California governing law and forum clause, and a 2006 amended TOS added provisions on non-transferability and death; acceptance of the terms is not clearly shown.
- Yahoo initially produced only subscriber header information under a negotiated agreement; contents of emails were not produced, with Yahoo invoking the Stored Communications Act as to disclosure.
- The first action (2007) resulted in an unopposed summary judgment ordering production of subscriber records but not email contents; the second action (2009) sought contents as estate property and as Robert’s personal co-owner, prompting Yahoo to move to dismiss on four grounds, including the forum clause and res judicata; the trial judge ruled res judicata barred the second action but allowed forum and limitations clauses to be resolved in California, leading to this appeal.
- The appellate court reverses, holds res judicata does not bar the second action, and remands to address the forum clause enforceability and ownership of email contents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Res judicata foreclosing second action | Ajemians/Robert contend second action not barred by res judicata | Yahoo argues first action precludes second on merits | Res judicata does not bar the second action |
| Enforceability of forum selection and limitations clauses | Clauses were not reasonably communicated or accepted; nonsignatory status of administrators | Clauses should be enforced if reasonably communicated and accepted | Not enforceable against administrators for actions seeking only estate asset declaration; remand for further proceedings |
| Whether contents of email account are property of estate under law | Contents are estate property and should be accessible | Yahoo denies ownership and cites SCA as barrier | Question left for remand; no final ruling on ownership in this opinion |
Key Cases Cited
- Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (U.S. 1972) (forum-selection enforceability test (reasonableness))
- Jacobson v. Mailboxes Etc. U.S.A., Inc., 419 Mass. 572 (Mass. 1995) (forum clauses in online and traditional contracts; notice and assent required)
- Creative Playthings Franchising, Corp. v. Reiser, 463 Mass. 758 (Mass. 2012) (enforceability of limitations clause in online contract)
- Casavant v. Norwegian Cruise Line, Ltd., 63 Mass. App. Ct. 785 (Mass. App. Ct. 2005) (forum clause in passenger ticket)
- Hughes v. McMenamon, 204 F. Supp. 2d 178 (D. Mass. 2002) (reasonableness of online forum clause)
- Bagg v. Highbeam Research, Inc., 862 F. Supp. 2d 41 (D. Mass. 2012) (denying summary judgment for lack of assent to clickwrap forum clause)
- Segal v. Amazon.com, Inc., 763 F. Supp. 2d 1367 (S.D. Fla. 2011) (analysis of online contract terms and assent)
- Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 (S.D.N.Y. 2012) (online terms of service enforceability)
- Kowal v. Sportswear by Revere, Inc., 351 Mass. 541 (Mass. 1967) (principles regarding agency and binding contracts)
- Restatement (Second) of Judgments § 33 & comment c, — (—) (declaratory judgments may not preclude unlitigated issues)