Feggestad v. Kerzner Int'l Bahamas, Ltd. (11th Cir. Dec. 13, 2016) [click for opinion]

Plaintiffs James and Karen Feggestad ("Plaintiffs") filed a personal injury suit for negligence against Defendants, owners and operators of the Atlantis Resort ("Defendants"), in the Southern District of Florida after a slip and fall injury. Defendants moved to dismiss based on a forum selection clause contained in the terms and conditions of the resort reservation agreement.

Plaintiffs had made a reservation at the Atlantis and received by email a confirmation containing a "Terms and Conditions" section, with a hyperlink to further terms. The linked terms and conditions provided that disputes between the guest and Defendants must be litigated in the Bahamas. Pursuant to the terms, the guest would be required to sign a registration form with a Bahamian forum selection clause upon arrival at the Atlantis.

When Plaintiffs were asked to sign the card upon check-in, a resort representative explained that it was needed to charge incidentals to the guest bill. Plaintiffs signed the registration card, the back of which included an eight-paragraph agreement entitled "ACKNOWLEDGEMENT, AGREEMENT AND RELEASE – READ BEFORE SIGNING." The agreement provided that any claims against the resort resulting from events occurring there would be governed by Bahamian law and venue.

The Eleventh Circuit affirmed the lower court's dismissal, finding the forum selection clause valid and enforceable. The court held that Plaintiffs were not deceived where they received the contract in plain language via two different mediums.

When the parties to a forum selection clause do not negotiate it, the court must determine "whether the clause was reasonably communicated to the consumer." This is a two-part analysis looking at (1) the clause's physical characteristics and (2) "whether the plaintiffs had the ability to become meaningfully informed of the clause and to reject its terms." Plaintiffs did not challenge the clause on the first factor, and the court noted that the form of this particular agreement nevertheless had already been upheld in a different case.

The court held that the second prong was met because Plaintiffs received notice of the forum selection clause in the email confirmation hyperlink. While Plaintiffs did not try to access the linked terms and conditions, the court noted that nothing prevented them from doing so and reading the terms. The court also found that Plaintiffs received a second form of notice upon registering at the resort. While Plaintiffs claimed that the reservation personnel impeded or prevented them from reading the agreement, the court found this argument unconvincing absent any substantiating evidence. Plaintiffs thus did not make the required "strong showing" that enforcement would be unfair or unreasonable.