Starkey v. G Adventures, Inc., No. 14-1361-cv (2d Cir. Aug. 7, 2015) [click for opinion]

Plaintiff brought a negligence claim in the U.S. District Court for the Southern District of New York (“SDNY”) against a travel company with which she booked a tour of the Galapagos Islands, claiming that she was sexually assaulted by one of Defendant’s employees on the trip. The SDNY dismissed the claim, granting Defendant’s forum non conveniensmotion to enforce the following forum selection clause in a Booking Terms and Conditions document: “The Terms and Conditions and Conditions of Carriage including all matters arising from it are subject to . . . the exclusive jurisdiction of the Ontario and Canadian Courts.” Defendant had included hyperlinks to the document in each of three emails sent to Plaintiff after she purchased her ticket. Although Plaintiff alleged that she never clicked the hyperlinks and never read the forum selection clause, the Second Circuit found the clause to be enforceable and affirmed dismissal.

In the Second Circuit, a forum selection clause is presumptively enforceable if it: (1) was reasonably communicated to the party resisting enforcement; (2) is mandatory rather than permissive; and (3) covers the claims and parties in the suit. The parties only disputed whether the clause was reasonably communicated.

Under federal common law, which the court applied based on the parties’ assumption that it would govern, “[a] tour company reasonably communicates a forum selection clause where (1) its promotional brochure directs the traveler’s attention to ‘the terms and conditions printed on the Passenger Ticket Contract which may be inspected at any [of the company’s] office[s]’ and (2) the ticket contract itself set[s] forth the clause clearly and unambiguously.” First, the Second Circuit found that Defendant’s emails adequately directed Plaintiff’s attention to the Terms and Conditions document by including a hyperlink and language advising Plaintiff to click on the hyperlink. For instance, one email contained a capitalized, bolded “TERMS AND CONDITIONS” heading, and each of the emails explicitly or implicitly advised that the terms and conditions could be viewed by clicking the hyperlinks. The Second Circuit held that such emails served the same function as cross-referencing language in a printed promotional brochure, and both methods could be used to reasonably communicate a forum selection clause.

The Second Circuit then considered whether the Booking Terms and Conditions document reasonably communicated the specific forum selection clause to Plaintiff. The court concluded that it did, because the document stated in its second paragraph that it designated the “forum for the resolution of any and all disputes,” and a later paragraph clearly and unambiguously stated that all suits arising from the document would be subject to the exclusive jurisdiction of the Canadian courts. Because Defendant satisfied both of the requirements for reasonable communication and the other prongs of the test for presumptive enforceability were undisputed, the forum selection clause was presumptively enforceable.

However, a plaintiff may rebut the presumption of enforceability by “a sufficiently strong showing that enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.” In the Second Circuit, courts will decline enforcement of a presumptively enforceable forum selection clause only if (1) its incorporation was the result of fraud or overreaching; (2) the law to be applied in the selected forum is fundamentally unfair; (3) enforcement contravenes a strong public policy of the forum in which suit is brought; or (4) trial in the selected forum will be so difficult and inconvenient that the plaintiff effectively will be deprived of his day in court.

Examining these factors, the Second Circuit held that Plaintiff failed to overcome the presumption of enforceability. The fact that Defendant offered tours on every continent made selection of a single venue for customer suits reasonable rather than suggestive of a desire to discourage claims. Plaintiff made no showing that she would be denied a fair hearing in Canada. The court was likewise unpersuaded by Plaintiff’s argument that enforcement against her would contravene a strong public policy, either as a survivor of sexual assault, or because Canadian procedural rules made it possible for her to be liable for Defendant’s attorneys’ fees if unsuccessful. Finally, the obvious inconveniences inherent in litigating abroad were inadequate to effectively prevent Plaintiff from bringing suit and enjoying her day in court. For these reasons, the Second Circuit affirmed the SDNY’s dismissal pursuant to the forum selection clause.

Spencer Churchill of the Washington, DC office contributed to this summary.