A forum selection clause in an agreement for online services that required claims to be brought in the “courts of Virginia” operated as a waiver of a user’s right to litigate claims under the Electronic Communications Privacy Act in a federal forum, a district court ruled. The court noted that the U.S. Court of Appeals for the Ninth Circuit had previously ruled that the phrase “courts of Virginia” meant the state courts of Virginia and excluded a federal forum. Federal and state courts have concurrent jurisdiction over claims under the ECPA, the district court ruled on remand, therefore the forum selection clause could operate to require adjudication of those claims in state court. The forum selection clause operated as a waiver of the plaintiff’s right to adjudicate the ECPA claims in a federal forum, the court further ruled, because the plain meaning of the language in the forum selection clause specifying jurisdiction over “any claims or disputes” was sufficiently broad to encompass both federal and state claims.

Doe I v. AOL, LLC, 2010 U.S. Dist. LEXIS 14639 (N.D. Cal. Feb. 1, 2010) Download PDF

Editor’s Note: The underlying lawsuit raises various state and federal privacy and related claims arising from the public release of anonymized data concerning the search results of 650,000 users of the AOL search engine in 2006. Note that under the Ninth Circuit’s prior ruling in the case, the forum selection clause is enforceable only as to plaintiffs who are not residents of California.