Companies that interact with consumers from other jurisdictions typically include forum selection clauses in their agreement/terms of use. In the event of a dispute with a consumer, these clauses allow the company to choose a forum that is most convenient in order to obtain a “home field advantage.” For example, a company may find it advantageous to appear before a local court as its counsel may be more familiar with the local rules and judges in that particular venue.

Social media companies like Twitter, Facebook, Instagram and YouTube each include a “forum selection clause” in their terms of service agreements which provide that disputes or claims brought against these social media platforms must be brought in California’s state or federal courts. Although these clauses are generally deemed enforceable, Congressmen Devin Nunes, who hails from California, recently overcame the obstacle of a forum selection clause in a lawsuit he filed against Twitter in Virginia, notwithstanding Twitter’s position that the suit had to be filed in California.

In June 2019, Nunes sued Twitter and two other parties in Virginia state court. He alleged that two Twitter users defamed him and that Twitter negligently failed to remove the defamatory tweets about him. Twitter filed a motion to dismiss Nunes’s lawsuit based on the forum selection clause in the terms of use agreement. Twitter also argued the case should be dismissed on the basis of lack of general personal jurisdiction. A Virginia Circuit Court rejected both of Twitter’s arguments in Nunes v. Twitter, Inc., 2019 Va. Cir. LEXIS 613 (Va. Cir. Ct. Oct. 2, 2019).

Twitter argued initially that Nunes, who had a Twitter account, should be bound by the forum selection clause in its terms of use agreement. The Virginia court rejected that claim because Nunes’s suit was based on the other defendants’ use of their Twitter accounts, not Nunes’s use of his own Twitter account. Accordingly, the court held that the terms of use agreement did not apply to Devin Nunes in this case.

With regard to Twitter’s jurisdiction argument, the court rejected that as well, finding that Twitter was registered to do business in Virginia, had a registered agent in Virginia, derived a large amount of advertising revenue from Virginia, and had many Virginia residents who used Twitter’s social media platform. Thus, the court held there were “sufficient minimum contacts with Virginia to confer jurisdiction” over Twitter in this case alleging damages to Nunes’s reputation in Virginia based on tweets by users of the Twitter platform in Virginia.

Although Nunes’s suit is proceeding in Virginia, it remains to be seen if he will ultimately succeed with his negligence claims against Twitter. Nunes may have overcome the forum selection clause and jurisdictional arguments raised by Twitter, but it is less likely that he will overcome a motion to dismiss by Twitter based on the Communications Decency Act, 47 U.S.C. §230(c)(i), which grants most internet services immunity from liability for publishing false or defamatory material as long as the information was provided by another party. Time will tell.