Citation[]
America Online, Inc. v. Pasieka, 870 So.2d 170 (Fla. App. 2004) (full-text).
Factual Background[]
Appellee, Pasieka, filed a class action suit against Internet service provider, America Online, for allegedly violating two Florida statutes: Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and Florida Free Gift Advertising Law (FFGAL). Appellee, on behalf of all consumers who subscribed to the appellant’s online services, alleged that appellees' suffered ongoing difficulty in cancelling services, continued billing for services after services were cancelled, and deceptive and unfair acts surrounding subscription efforts and customer retention procedures. Appellees' sought damages as well as declaratory and injunctive relief.
Appellant, America Online, sought dismissal of the class action lawsuit on the grounds that venue was improper. America Online relied on a clause in the “Member Agreement” which provided for exclusive jurisdiction in the courts of Virginia as to “ any claim or dispute with AOL or relating in any way to . . . membership or . . . use of AOL. . . .”
Trial Court Proceedings[]
The trial court declined to give effect to the forum selection clause, relying on the case Management Computer Controls v. Charles Perry Construction,[1] The court noted that the Management Computer case, which also involved a FDUTPA claim, included a clause that was similar to the one found in the America Online Member Agreement that required any legal action arising out of the Agreement to be maintained in another state. The court held that the FDUTPA claim was not subject to the forum selection clause, as that would undermine the effectiveness and purpose of the statute.
Appellate Court Proceedings[]
On appeal, the District Court affirmed the trial court's decision to deny America Online’s motion to dismiss for improper venue. In reaching this decision, the Appellate Court illustrated that courts that have enforced forum selection clauses arising out of FDUTPA claims did not involve class action suits or the unavailability of the Florida remedy in another state.
The Appellate Court noted that Virginia statutes do not allow for remedies comparable to those that could be obtained under the FDUTPA. Since the sole purpose behind the FDUTPA and the FFGAL is to provide general protection for its state’s citizens from deceptive and unfair trade practices, giving effect to America Online’s forum selection clause would undermine the sole purpose for implementing the statutes. Therefore, the trial court correctly relied on Management Computer and properly denied the appellant’s motion to dismiss.