Court upholds eBay forum selection clause

Tricome v. Ebay, Inc., 2009 WL 3365873 (E.D. Pa. October 19, 2009)

Everyone who signs up to use eBay has to assent to the terms of eBay’s User Agreement. Among other things, the User Agreement contains a forum selection clause that states all disputes between the user and eBay must be brought to court in Santa Clara County, California.

After eBay terminated plaintiff Tricome’s account, Tricome sued eBay in federal court in Pennsylvania. eBay moved to dismiss or to at least transfer the case, arguing that the forum selection clause required it. The court agreed and transferred the case to the U.S. District Court for the Northern District of California.

Plaintiff had argued that the court should not enforce the forum selection clause because it was procedurally and perhaps substantively unconscionable. The court found the agreement not to be procedurally unconscionable because Plaintiff did not have to enter into the agreement in the first place — he only did it to increase his online business. Furthermore, eBay did not employ any high pressure tactics to get Plaintiff to accept the User Agreement. Moreover, eBay had a legitimate interest in not being forced to litigate disputes all around the country.

The court likewise found the User Agreement was not substantively unconscionable either. It would not “shock the conscience” for a person to hear that eBay — an international company — would undertake efforts to focus litigation it is involved with into a single jurisdiction. Furthermore, having the forum selection clause would conserve judicial and litigant resources, in that parties and the courts would know in advance where the appropriate place for disputes concerning eBay would be heard. Finally (and rehashing an earlier point regarding procedural unconscionability), Plaintiff had a meaningful choice — he could have decided not to do business on eBay in the first place.

Map photo courtesy Flickr user sidewalk flying under this Creative Commons license.


  1. Such is the life of user agreements. My biggest dislike of most user agreements is they they seem somewhat arbitrary and there is no way negotiate separate terms.

  2. Understandable, Joe. But then, some of us don’t really want to negotiate our terms unless we see fit, anyway.

    Makes one sometimes glad there’s options out there.

  3. My lawsuit Riggs v. MySpace, Inc. et al was transferred to CA due to a jurisdiction and venue clause. Interestingly though, the user agreement also contained an arbitration clause. I filed an Arbitration Demand with the American Arbitration Assoc., but MySpace never responded.

    One of my claims is breach of contract for the arbitration clause. Ironically, it worked in my favor to have it transferred to CA in particular due to the breach of implied-in-fact contract claim regarding MySpace Celebrity. Some of these companies would be wise to choose a different state other then CA to hear cases. CA law works in favor of the Plaintiff many times.

    The case is currently in the Ninth Circuit.

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