E-Alert Case Updates

Forum Selection Clauses For Airline Tickets Are Still Enforceable

Fusha v. Delta Airlines, Inc.
(D. Md. Aug. 30, 2011)
by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Plaintiff, Liri Fusha (“Plaintiff”), sued Delta Airlines, Inc. (“Delta”), Air Trade International, Inc. (“Air Trade”), and Alitalia-Linee Aeree Italiane S.P.A. (“Alitalia”) (collectively “the Defendants”), alleging various injuries. She contended that she missed a connecting flight from Rome to Albania, had to haul her luggage between the customer service counters for Delta and Alitalia, was told to sleep on the floor at the airport in Rome, Italy, and was forced to lock herself in an airport restroom to escape a confrontational floor-cleaning janitor. She sought over $2 million dollars as a result of the Defendants’ actions.

Air Trade filed a motion to dismiss for improper venue. Air Trade is an on-line travel booking company, and argued that its website’s terms and conditions included a forum selection clause that mandated that Plaintiff bring any action against it in California. According to Air Trade, prior to purchasing her tickets, Plaintiff agreed to Air Trade’s terms and conditions by checking (or clicking) a box on the website acknowledging that she read the terms and conditions imposed by Air Trade. Because Plaintiff did indeed purchase tickets through Air Trade’s website, Air Trade argued that she must have agreed to the terms and conditions containing the forum selection clause.

Plaintiff did not dispute Air Trade’s assertion that she agreed to its terms and conditions, but instead argued that she had no recollection of ever reading, much less agreeing to, a forum selection clause. Moreover, she argued that if she had agreed to the forum selection clause by clicking the “I agree” box on the website, the forum selection clause was nevertheless unreasonable and unenforceable on the ground that litigating in California would be difficult and inconvenient to her.

The Court began its analysis by noting that two recent opinions (also involving Plaintiff) have carefully examined the validity of forum selection clauses in the on-line context—specifically where a party agrees to certain terms and conditions as a consequence of using the opposing party’s website. Notably, the United States District Court for the District of Maryland has previously held that “clickwrap agreements, agreements that require a customer to affirmatively click a box on the website acknowledging receipt of an assent to the contract terms before he or she is allowed to proceed using the website. . . have been routinely upheld by circuit and district courts.” It has also been held recently in this District that otherwise valid forum selection clauses may not be binding if the challenging party meets the “heavy burden of showing that enforcement would be unreasonable, unfair, or unjust.”

Put simply, the court held that Plaintiff had not met the “heavy burden” necessary to invalidate Air Trades forum selection clause. First, the court recognized that “failure to read an enforceable on-line agreement, as with any binding contract will not excuse compliance with its terms.” Second, Plaintiff’s conclusory statements that it would be inconvenient for her to litigate in California, rather than Maryland, were insufficient to show that enforcement of the forum selection clause would be unduly burdensome. Specifically, the United States District Court for the District of Maryland has held that “increased expenses do not affect the validity of the forum/selection clause. The mere assertion that litigation will be more expensive for one party than another is not a reason for declaring the clause invalid.” Plaintiff had simply not met her substantial burden. Finally, Plaintiff argued that because Air Trade is a corporation, it necessarily has greater bargaining power and its forum selection clause should be disregarded. Other courts have disregarded such argument, and the District Court agreed.

In sum, Plaintiff was not forced to book her travel arrangements through Air Trade’s website, and could not show litigating in California would deprive her of her day in court. When Plaintiff booked her flights through the website, she agreed to the terms and conditions, and could not later escape the contract to which she was obliged. For such reasons, Air Trade’s motion to dismiss was granted.