NY Court Overrules Forum Selection Clause in AOL Contract

In Cyberlaw and the Global Economy, a fall course at HLS, we study the issue of contracting in cyberspace — when clickwrap contracts are enforced, what provisions the courts sometimes refuse to enforce, and the like.  A New York court has just added to the relevant caselaw by refusing to enforce a forum selection clause in an AOL form contract with one of its customers.   A pro se claimant, Mr. Scarcella, brought a small action against AOL in New York court, despite the fact that his member agreement with AOL stipulates that disputes are to be resolved in Virginia court.  The New York court overruled this “forum selection clause” to enable Mr. Scarcella to bring his claim against AOL in the New York court system.  [Via Urs Gasser.]  Ordinarily, it’s the arbitration provision that has been stricken by the courts (in Comb v. Pay Pal, e.g.) or the entire contract (in the browsewrap line of cases, for instance.) 

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