Technology & Litigation

Your friendly neighborhood technology legal counsel here for Part 2 of my riveting analysis of the dreaded "venue-selection clause"  In Part 1, I scared you with the reality that when you absently click, "I agree" you are very likely binding yourself to litigate any dispute in a location that is likely not conducive to your case or your pocketbook.  And I'm sure that the point you've been wondering about since last we interacted is, "what can I do about it".  Unfortunately, the answer is not much. 

Your first option is to unplug yourself from the Matrix and steadfastly refuse to agree to anything on-line that forces your hand.  You and my Aunt Mildred can then spend your days playing Go Fish and Old Maid while the rest of us soldier on. 

Your next likely option is to simply read your agreements.  Look for language that gives you wiggle room and latch onto it.  For instance, in the American Airlines v. Yahoo case, the language of the provision stated that the end user agreed "to submit to the exclusive jurisdiction of" the court Yahoo liked.  This, however, doesn't force you to bring suit there. It simply states that if you are sued there, you have to submit to the jurisdiction.  Thus, when Yahoo tried to enforce this provision, the District Court said "no".  So, when faced with the daunting reality that you want to sue someone and there is a venue selection provision, go to your friendly neighborhood technology legal counsel and inquire as to the limitations that are actually going to be imposed on you.  And if you actually have any negotiating power, you can work to resolve this issue beforehand. 

Another option is to litigate where you want anyway and see what happens.  You might get lucky, or your opponent may not care.  And then, if you get faced with a motion to dismiss, move to transfer to the proper court.  Most courts will agree to a transfer before simply dismissing the action.  You will have lost some time while the case was pending in your state, but depending on your ultimate goal, you may not care. 

My final suggestion is to wait.  It is the humble opinion of this writer that as more litigation arises under the on-line contracts that we "sign" and force the hands of folks like you and me, the Powers that Be (i.e. courts and legislators) will undertake to protect your ability to file a suit wherever you darn well please, and you will see cases and laws that change the implications of venue-selection provisions in on-line contracts.  The more software litigation and SaaS litigation that we see, the more realistic my "wait and see" option becomes.  Of course, the question you'll have to answer for yourself is whether that is a result that you want. 

One final - final point is that you should always remember that the venue-selection provision can cut both ways.  If the law in your forum is contrary to your position, you too can utilize that pesky provision to haul your opponent to a court that might be better FOR YOU.  Likewise, if your opponent sues you in a court you don't like, you can look to that little provision to seek dismissal or transfer yourself.  Never forget that, particularly in the litigation arena, what is good for the goose is also good for the gander.