In Rudgayzer, Google added to its track record of enforced forum and venue selection clauses, and this time in a case that had the potential to be a costly class action.  The Rudgayzer suit had drawn attention for its claims alleging improper notice to the class after a 2010 settlement agreement. However, Judge I. Leo Glasser, for the Eastern District of New York, declined to address those issues, and instead, dismissed the lawsuit on the ground that the case was brought in the wrong court.
Plaintiffs’ complaint alleged that Google violated user’s privacy by publishing frequent email contacts on the Google “Buzz” social networking platform in 2010. Buzz displayed contact lists for Google Gmail users who had created public Google profiles. Plaintiffs contested this unauthorized use of their data, arguing it was illegal under the Stored Communications Act (“SCA”), a federal law prohibiting electronic communication services from disclosing the contents of messages they store.
In November 2010, Google settled a first class action alleging these Google Buzz privacy violations. The settlement agreement required Google to make Buzz an opt-in service and to pay $8.5 million to internet privacy nonprofits. After the settlement, Plaintiffs in Rudgayzer brought a new suit, purporting to represent users who were unable to opt out of the settlement agreement, or who would have done so if they had known about the defective class notice. Google moved to dismiss or transfer, arguing in part that plaintiffs lacked standing and that their claims were precluded. Those points were contested at oral argument in June 2013.  However, Judge Glasser’s opinion on the motion provides only a clear holding that Google’s forum and venue provisions are enforceable. Judge Glasser dismissed the putative class action because Google’s user agreement contained a “plainly mandatory” forum and venue selection clause. Moreover, these clauses apply “not only to agreements between businesses, but also to contracts of adhesion between a business and a consumer.”