Designer Skin LLC v. S & L Vitamins, Inc., et al.
Williams v. America Online, Inc.
2001 WL 135825 (Mass. Super., February 8, 2001)
Court denies defendant AOL's motion to dismiss complaint, which motion was brought on the ground that plaintiffs commenced the instant action in an improper forum in violation of a forum selection clause contained in AOL's Terms of Service. Finding, inter alia, that the injury alleged in the complaint occurred before the plaintiffs were asked to agree to be bound by AOL's Terms of Service, the court denied AOL's motion.
Plaintiffs installed AOL version 5.0 ("Software") on their computers. Claiming that their installation of this software "caused unauthorized changes to the configuration of their computers so they could no longer access non-AOL Internet service providers, were unable to run non-AOL e-mail programs and were unable to access personal information and files" plaintiffs commenced this putative class action suit, asserting claims, inter alia, that defendant's conduct constitutes unfair or deceptive practices in violation of Massachusetts G.L. chap. 93A.
Defendant AOL moved to dismiss on the ground that the Terms of Service incorporated into the Software contained a forum selection clause mandating that "any claim or dispute with AOL" be commenced in Virginia. Defendant AOL also argued that the claims must be dismissed because each plaintiff, prior to installing the Software on their computers, had previously been an AOL subscriber and in such capacity had agreed to be bound by AOL Terms of Service which apparently contained a similar forum selection clause.
The court rejected defendant's claims and denied the motion. In reaching its conclusion, the court pointed to the fact that the alleged injury occurred before the plaintiffs were asked to agree to be bound by the Terms of Service which accompanied the Software. Thus, according to plaintiffs, the Software reconfigures their computers before it presents them with a screen seeking their asset to be bound by the Terms of Service. Implicate in this holding is a determination that the injury occurred before the parties had entered into a contractual relationship.
The court also noted that the plaintiffs sought to represent a class of Massachusetts' residents, and "public policy suggests that Massachusetts consumers who individually have damages of only a few hundred dollars should not have to pursue AOL in Virginia." The Court also held that the prior terms of service previously agreed to by plaintiffs did not bar them from pursing the instant action in Massachusetts because "the fact that plaintiffs may have agreed to an earlier TOS or the fact that every AOL member enters into a form of TOS agreement does not persuade me that plaintiffs and other members of the class they seek to represent had notice of the forum selection clause in the new TOS before reconfiguration of their computers."