Although forum-selection clauses in clickwrap and browsewrap agreements have been addressed in only a limited number of decisions, they are likely to become increasingly relevant with the growth of e-commerce. Courts that have enforced forum-selection clauses in click-wrap and browsewrap agreements have often done so without determining whether the consumer received notice of the clause. When courts have addressed notice, they have not used any uniform standard for determining adequacy of notice. Forum-selection clauses in dlickwrap and browsewrap agreements further the policies underlying the Supreme Court's decisions in MIS Bremen v. Zapata Off-Shore Co. and Carnival Cruise Lines, Inc. v. Shute, and courts should be willing to enforce such clauses. Even so, courts should make adequacy of notice a threshold question before enforcing forum-selection clauses in these agreements. In determining adequacy of notice, courts should adopt the two-pronged "reasonably communicated" test employed by courts examining the enforceability of limitations in other adhesion contracts. First, a court should examine the physical characteristics of the clickwrap or browsewrap agreement. Second, a court should consider extrinsic factors indicating the consumer's ability to become meaningfully informed of the forum-selection clause. Only if the e-vendor meets the burden of showing that the forum-selection clause was reasonably communicated to the consumer should the court enforce the clause.
Kaustuv M. Das,
Notes and Comments,
Forum-Selection Clauses in Consumer Clickwrap and Browsewrap Agreements and the "Reasonably Communicated" Test,
77 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol77/iss2/4