885 F. Supp. 2d 894
S.D. Ill.2012Background
- Facebook operates facebook.com with over 153 million US members, including more than 14 million under 18.
- Plaintiffs, Illinois minors, allege Facebook’s sponsored stories violate their privacy rights by misusing names/likenesses for endorsements.
- Facebook’s Terms of Service contain a forum-selection clause directing disputes to Santa Clara County, California courts; clause is described as mandatory.
- Plaintiffs, who joined via a browsewrap TOS, are bound to the TOS and its forum selection despite infancy.
- The action, a putative class action under CAFA jurisdiction, seeks to certify a class defined by minors whose names were used in ads; Facebook seeks transfer under 28 U.S.C. §1404(a).
- Court analyzes infancy doctrine, forum-selection clause enforceability, and transfer under §1404(a), ultimately granting transfer to the Northern District of California.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether infancy bars enforcement of the forum clause | Plaintiffs argue infancy disaffirms contracts. | Facebook argues infancy defense cannot void a valid forum clause. | Infancy defense barred; clause enforceable. |
| Validity of the browsewrap forum-selection clause | Plaintiffs contend lack of notice under browsewrap. | Facebook argues conspicuous notice via linked TOS. | Notice was reasonably conspicuous; clause enforceable. |
| Transfer under 28 U.S.C. §1404(a) to the Northern District of California | Transfer undermines forum clause and access to court. | Transfer favored by clause and convenience. | Transfer granted; clause gives proper forum and transfer is appropriate. |
| Public policy and third-party costs under §1404(a) | Transfer would burden Illinois/public interests. | No strong Illinois policy against transfer; no substantial third-party costs. | No overriding public policy preventing transfer; clause enforceable. |
Key Cases Cited
- M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (U.S. 1972) (forum-selection clauses prima facie valid; enforceable absent strong reasons)
- Bonny v. Society of Lloyd’s, 3 F.3d 156 (7th Cir. 1993) (unreasonableness limited to fraud, gravity of forum, or policy)
- Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753 (7th Cir. 1992) (browsewrap notice and enforceability guidance)
- Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (U.S. 1988) (forum clause should be given consideration under §1404(a))
- Northwestern Nat’l Ins. Co. v. Donovan, 916 F.2d 372 (7th Cir. 1990) (strong presumption in favor of enforcing forum-selection clause; limited exceptions)
- Abbott Labs. v. Japan, 476 F.3d 421 (7th Cir. 2007) (enforcement considerations for forum clauses; party’s burden to show inconvenience)