435 F. App'x 31
2d Cir.2011Background
- TradeComet sued Google in the Southern District of New York alleging Sherman Act claims.
- District court dismissed the complaint for lack of subject matter jurisdiction and improper venue under Rule 12(b)(1) and 12(b)(3).
- Second Circuit held that a defendant may seek enforcement of a forum selection clause via Rule 12(b) motion to dismiss in a contemporaneously issued opinion.
- Court applies the four-part test for forum-selection clause enforcement: reasonable communication, mandatory language, scope of the clause, and presumptive enforceability rebutted by unreasonableness or overreach.
- August 2006 forum-selection clause in Google’s AdWords agreements broadly covers claims arising under or relating to the Google Programs, superseding prior agreements; California law governs interpretation, federal law governs enforceability of the clause.
- Court concludes the district court correctly applied the four-part test and enforcement of the forum-selection clause is proper; district court’s dismissal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an evidentiary hearing was required on reasonable communication. | TradeComet contends no hearing occurred on notice/communication of the clause. | Google maintained evidence showed assent via umbrella account; no factual dispute requiring a hearing. | No evidentiary hearing required; no material issue of fact remained. |
| Whether the August 2006 clause retroactively applies to pre-agreement conduct. | TradeComet argues retroactive application is improper. | Clause broad and not limited to the agreement itself; applicable to related claims. | Retroactive application proper; clause not limited to the agreement itself. |
| Whether the forum-selection clause is unreasonable or unconscionable. | TradeComet claims overreaching and public policy conflict with antitrust enforcement. | Clause is reasonable given Google’s special forum interests and broad coverage. | Clause enforceable; not unreasonable or unconscionable under the circumstances. |
Key Cases Cited
- Carnival Cruise Lines, Inc. v. Shute, 515 U.S. 585 (U.S. 1991) (forum clauses upheld in form contracts with nonnegotiable terms)
- Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (U.S. 1985) (antitrust claims subject to arbitration may be enforceable)
- Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (U.S. 1972) (forum selection clauses enforceable unless unreasonable or unjust)
- American Safety Equipment Corp. v. J.P. Maguire & Co., 391 F.2d 821 (2d Cir. 1968) (public policy considerations in antitrust contexts acknowledged but not controlling here)
- Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007) (de novo review of forum-clause enforceability; presumption of enforceability)