Starkey v. G Adventures, Inc.
2015 U.S. App. LEXIS 13814
| 2d Cir. | 2015Background
- Starkey booked a Galápagos tour from G Adventures and received three emails (booking info, confirmation invoice, service voucher) that included bolded/capitalized “TERMS AND CONDITIONS” language and hyperlinks to a "G Adventures Inc. Booking Terms and Conditions" document.
- The emails told recipients they must read and agree to the Terms and Conditions and provided links to access them; Starkey admits receiving the emails but says she never clicked the links or read the terms.
- The linked Terms and Conditions stated that booking binds the traveler to those terms and that they designate the forum for disputes; Section 32 provided an exclusive-jurisdiction forum selection clause designating Ontario/Canadian courts.
- Starkey sued G Adventures in the Southern District of New York for negligence arising from an alleged sexual assault by a company employee; G Adventures moved to dismiss based on the forum selection clause.
- The District Court dismissed under 28 U.S.C. § 1406 (construed as enforcing the clause via forum non conveniens). The Second Circuit affirmed, finding (1) the clause was reasonably communicated via the emails and hyperlink to the terms, (2) the clause was mandatory and covered Starkey’s claims, and (3) enforcement was not unreasonable, unjust, or contrary to public policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the forum-selection clause was reasonably communicated to Starkey | Starkey: she never clicked the hyperlinks and therefore was not given reasonable notice of the clause | G Adventures: emails prominently referenced Terms and Conditions and provided hyperlinks; that directed attention sufficiently | Held: reasonably communicated via the three emails and hyperlinks plus clear language in the T&Cs |
| Whether the clause is mandatory and covers the suit | Starkey: did not dispute coverage but challenged enforceability | G Adventures: clause is mandatory and applies to all disputes arising from booking | Held: clause is mandatory and covers Starkey’s negligence claim |
| Whether enforcement would be unreasonable, unjust, or contrary to public policy (including fee-shifting differences) | Starkey: Canadian procedure (possible fee-shifting) and inconvenience make enforcement unjust and contrary to public policy; also argued sensitivity as sexual-assault survivor | G Adventures: Canada is a reasonable single venue for global operations; differences in law/procedure do not render clause unenforceable | Held: no showing of fraud/overreaching, fundamental unfairness, or public-policy bar; mere procedural differences and inconvenience insufficient |
| Whether special considerations for sexual-assault survivor justify refusing enforcement | Starkey: survivors deserve exception; litigation abroad may hinder recovery of justice | G Adventures: no controlling federal statute or precedent creates such an exception | Held: no authority to create such a categorical exception; clause remains enforceable |
Key Cases Cited
- Martinez v. Bloomberg LP, 740 F.3d 211 (2d Cir. 2014) (four-part test for enforcing forum-selection clauses and presumption favoring contractual forum)
- M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (forum-selection clauses presumptively valid absent strong countervailing reasons)
- Effron v. Sun Line Cruises, Inc., 67 F.3d 7 (2d Cir. 1995) (ticket/contract cross-reference can reasonably communicate forum clause)
- Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004) (describing clickwrap mechanisms that obtain express assent)
- Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007) (inconveniences of foreign litigation rarely justify refusing enforcement)
- Castillo Grand, LLC v. Sheraton Operating Corp., 719 F.3d 120 (2d Cir. 2013) (discussion of fee-shifting and public-policy limitations on enforcing forum clauses)