Category Archives: Contracts

Purported John Kerry ex-flame’s suit against Yahoo tossed

I’m going back in time a little bit to pick up on an unreported September 5, 2007 decision by a New York state trial court in the case of Whitnum v. Yahoo! [2007 WL 2609825].

Plaintiff Whitnum is the author of the book Hedge Fund Mistress, and also the owner of the website of the same name. Yahoo, who hosted the site, is alleged to have shut down the site for 8 hours on August 19, 2004, which was the same day that the book was mentioned on the front page of the Boston Herald.

Whitnum claimed that this caused her to lose out on $125,000 in revenue, so she sued Yahoo for that amount. Yahoo moved to dismiss, however, citing to its hosting terms of service which provided that it had the right “at any time and from time to time to modify or discontinue, temporarily or permanently, the [hosting] Service.” The terms of service also provided, among other things, that Yahoo would not be liable for any indirect or consequential damages resulting from a customer’s inability to use the service.

The court granted the motion to dismiss. It rejected Whitnum’s arguments that she should be allowed to file an amended complaint alleging intentional conduct or gross negligence, instead finding that her basis for saying that Yahoo may have shut down her account to silence her story about having dated John Kerry was mere speculation.

Internet marketer not fraudulent in predicting success of future advertising campaign

Hallmark Institute of Photography, Inc. v. CollegeBound Network, LLC, — F.Supp.2d —-, 2007 WL 3145433 (D. Mass. October 29, 2007).

CollegeBound LLC is an Internet marketing company that gathers “leads” for its customers. These “leads” are people who visit CollegeBound’s websites, express interest in the services provided by CollegeBound’s customers, and provide their contact information. CollegeBound then sells this lead information to its customers on a “cost per lead” basis. The customers then follow up with their own marketing efforts.

One of CollegeBound’s customers was Hallmark Institute of Photography. It signed written agreements with CollegeBound whereby it agreed to pay more than $30 for each lead that CollegeBound provided. When the parties were negotiating the deal, CollegeBound allegedly orally represented that between three and seven percent of the leads would enroll for Hallmark’s photography courses.

Although CollegeBound gathered leads and sent them on to Hallmark, less than one percent of them applied. Hallmark was disappointed in this result, and sued CollegeBound for breach of contract and for fraud and misrepresentation. CollegeBound moved to dismiss, and the court granted the motion.

On the breach of contract claim, the court held that the parol evidence rule precluded it from considering any extrinsic evidence. The alleged representations were made orally, and not included in the written agreement. Although the contract did not contain an “integration clause,” the court found that the agreement was fully integrated, where essentially all the important terms were included, and there was no indication the parties intended there be any additional terms. Since the agreement was not ambiguous, the court could not consider any evidence outside the document’s four corners.

As for the fraud and misrepresentation claims, the court held that CollegeBound’s statements were of a “fundamentally predictive nature,” and “concerned a matter of opinion, estimate or judgment which was not susceptible of actual knowledge at the time of [their] utterance.” For these reasons, the court found that Hallmark could not have reasonably relied on the statements. So the claims failed as a matter of law.

Court shuts down for violation of Web site terms of service

Southwest Airlines Co. v. BoardFirst, LLC, No. 06-0891 (N.D. Tex. September 12, 2007)

Southwest Airlines does not have differentiated seating — one cannot get a better seat by paying more. Passengers are allowed to board based on a group classification they are assigned on a first come, first served basis. Passengers in the “A” group get to board first, while passengers in the “C” group go last. One can check in to be assigned to a group up to 24 hours before a flight by visiting Southwest’s Web site. was a web-based company that Southwest passengers could pay to log in for them in hopes of obtaining “A” group passes. Southwest objected to this practice, however, and filed suit in a Texas federal court against Boardfirst alleging violation of the Southwest Web site’s terms of service. Southwest then moved for summary judgment on its breach of contract claim, and the court granted the motion.

The first issue before the court was whether the “browsewrap” terms of service on the Southwest Web site, visible upon clicking a hyperlink at the bottom of the home page, constituted a valid contract between Southwest and BoardFirst. Those terms of service, among other things, prohibited using the Southwest site for anything other than personal, non-commercial purposes.

The court held that a valid contract existed. Finding that the situation resembled the one in the case of v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004), the court held that the evidence showed BoardFirst had actual knowledge of the terms, which expressly prohibited use of the site for commercial purposes.

Next the court determined that BoardFirst had breached the terms of service by using the site for commercial purposes. It rejected BoardFirst’s argument that BoardFirst was an agent of the ticket purchasers and therefore not a prohibited third party accessing the site. The court also rejected BoardFirst’s argument that prohibiting “commercial” use of the website would mean that every access of the site — ostensibly resulting in Southwest’s commercial advantage — would constitute a breach of the terms of service.

California court invalidates Alienware arbitration provision in online terms and conditions

Oestreicher v. Alienware Corp., —F.Supp.2d—-, 2007 WL 2302490 (N.D. Cal. Aug. 10, 2007)

Plaintiff Oestreicher bought a laptop on the Alienware website. Six months later the computer overheated and was irretrievably broken. Oestreicher filed a class action suit against Alienware in California state court, and Alienware removed the case to the U.S. District Court for the Northern District of California. Alienware then moved to compel arbitration, citing to the terms and conditions of purchase, which had been presented to Oestreicher in the form of a “click-wrap” agreement during check-out.

The court denied the motion to compel arbitration. The first two-thirds of the opinion addressed the question of whether California or Florida law should govern the enforceability of the arbitration provision. Disregarding the express provisions of the agreement providing for application of Florida law “without regard to conflicts of laws principles,” the court decided that California law should apply. It held that enforcement of the provision requiring arbitration (and the attendant waiver of the right to pursue a class action) violated a fundamental policy of the state of California. Furthermore, California had a materially greater interest in the litigation, based on the fact that California residents were invoking consumer protection laws to seek recovery for allegedly defective products shipped into California.

Applying California law, the court determined that the class action waiver was unconscionable and unenforceable. It was procedurally unconscionable because it was a take-it-or-leave-it contract of adhesion. It was substantively unconscionable because the dispute implicated by the class action waiver involved a small amount of damages and Oestreicher had alleged Alienware carried out a scheme to deliberately cheat large numbers of customers out of individually small sums of money.

View the opinion below, or click through if it’s not showing up in the RSS feed:

Court upholds limitation of liability clause in Internet services agreement

Asch Webhosting, Inc. v. Adelphia Business Solutions Inv., LLC, No. 04-2593, 2007 WL 2122044 (D.N.J. July 23, 2007).

Plaintiff Asch Webhosting entered into a three year contract with Adelphia Business Solutions for “internet services.” About two months after the agreement was finalized, Adelphia sent Asch a letter informing it that the services would be terminated because of alleged violations by Asch of the service’s acceptable use policy. The parties worked out an agreement whereby Asch had thirty days to find another provider. After those thirty days were over, Adelphia pulled the plug.

Asch filed suit alleging breach of contract, claiming $1.4 million in consequential damages due to the loss of business stemming from the termination of the agreement. Adelphia moved for summary judgment, citing to an “exculpatory clause” in the agreement which limited the amount of recovery for consequential damages to the amount paid by Asch for the services.

The court granted Adelphia’s motion for summary judgment. It held that the exculpatory clause was reasonable and that Asch demonstrated no conduct by Adelphia sufficient to overcome the expressed limitations on liability. The transaction at issue was made at arms length and was between two private commercial entities. Moreover, there were no public policy concerns implicated by the agreement. Given this scenario, the court refused to “engage in judicial revision of the parties’ [a]greement.”

Adelphia’s conduct in terminating the agreement, according to the court, did not render the exculpatory clause void. Adelphia had received complaints that Asch was using the service to spam other customers. Regardless of the “ultimate accuracy or veracity” of those complaints, the court found that Adelphia was entitled to rely on them so long as it did so in good faith.

New provisions in online terms of service of no effect without notice to customer

Questions remain, however, as to whether right to notice may be waived

Douglas v. U.S. Dist. Court for the Central Dist. of Ca, — F.3d —-, No. 06-75424, 2007 WL 2069542 (9th Cir. July 18, 2007)

Plaintiff Douglas signed up for long distance service with AOL. Some time later, Talk America acquired AOL’s rights under the contract, and changed the terms, which were posted online. Talk America added provisions relating to additional charges, a waiver of the right to class action suits, an arbitration clause, and a forum selection clause providing for suits to be brought in New York. Douglas claimed he was not provided with notice of the changed provisions when they purportedly became effective.

Douglas did not find out about the new charges until four years later, and when he finally did, he filed a federal class action suit against Talk America. Citing to the later-modified agreement, Talk America moved to compel arbitration. The district court granted the motion. Because the Federal Arbitration Act at 9 U.S.C. 16 does not authorize interlocutory appeals of a district court order compelling arbitration, Douglas sought a writ of mandamus from the Ninth Circuit. The court granted the writ, vacating the district court’s order compelling arbitration.

The Ninth Circuit applies a five-factor test, from Baughman v. U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977), to determine whether a writ of mandamus should be issued. The most important factor in this test is whether the district court’s order was “clearly erroneous as a matter of law.”

The appellate court held that the district court erred in holding that Douglas was bound by the terms of the revised contract, through a “fundamental misapplication[] of contract law,” going “to the heart of [Douglas’s] claim.” The court cited to cases holding that a party cannot unilaterally change the terms of a contract, but must obtain the other party’s consent before doing so, as a revised contract is merely an offer and does not bind the parties until it is accepted. Further, citing to Williston on Contracts, the court held that “an offeree cannot actually assent to an offer unless he knows of its existence.” In this case, “[e]ven if Douglas’s continued use of Talk America’s service could be considered assent, such assent [could] only be inferred after he received proper notice of the proposed changes.”

The case is silent on what might constitute proper notice. It is also not clear from the opinion (and the district court pleadings are not available on PACER), whether the original AOL terms of service included a provision stating that continued use of the service after changes had been posted would constitute acceptance of those changes. So although the case establishes that an e-commerce customer has the right to receive notice of changes to online terms of service, the question of whether that right can be waived is not answered in the opinion.

Appellate court lifts injunction against website owner in defamation case

Pennsylvania appellate court reverses trial court’s determination that former patient agreed to never again mention doctors on gripe site.

Nevyas v. Morgan, — A.2d —-, 2007 WL 704998 (Pa.Super. March 9, 2007)[Download opinion.]

A former patient unhappy with the LASIK surgery he received started a website to warn others of the procedure’s possible dangers. The website contained allegedly defamatory statements about the LASIK doctors who performed his procedure.


An attorney for the doctors sent a cease and desist letter to the patient, threatening to file a lawsuit against him if he failed to remove the content about the doctors. The patient responded with his own letter, agreeing to “conform to [the] request insofar as to remove any stated libelous reference to the [doctors] and their practice only.” The patient went on to state that he would not remove the site in its entirety, and would continue to publish “within the legal guidelines as allowed by . . . the First Amendment.”

The patient quickly lived up to his promise. He replaced the site with an earlier version that made no reference to the doctors at all. Nonetheless, a few days after that, the hosting provider removed the site at the doctors’ request.

Understandably perturbed by the deletion of his website, the patient got a new web host and reposted the version of the site containing the references to the doctors. A few months later, the doctors filed suit. As one would expect, the doctors sued for defamation, but they also sued for breach of contract and sought specific performance. They argued that by posting the earlier version of the site (which made no mention of the doctors) in response to the cease and desist letter, the patient entered an agreement to never again mention the doctors in any manner, whether defamatory or not.

The case went to trial on the claim for specific performance, and the court ruled in the doctors’ favor. It found that the parties had entered into an agreement whereby in exchange for the doctors not filing a lawsuit against the patient, the patient would remove all defamatory statements about the doctors from the site and refrain from defaming them in the future. But the trial court’s order went a bit further — it forbade the patient from mentioning the doctors at all.

On appeal, the court vacated the lower court’s order and remanded for further proceedings. The appellate court held that the trial court was correct that the actions of the patient in response to the cease and desist letter constituted an agreement to remove the defamatory content already on the site . But the appellate court also held that the patient’s action of uploading the original website, which contained no reference to the doctors, did not constitute an agreement on his part to never again mention them. Rather, the court held, the letter the patient sent in response to the cease and desist letter reserved the right to continue to update the site to mention the doctors.

Because the trial court did not consider whether the statements on the later version of the website were the same as what the patient had agreed to remove (or were otherwise defamatory), the case was remanded for further proceedings to consider that question.

Case against Internet Archive and Brewster Kahle proceeds in Colorado federal court

[This case came down over a month ago, but is worth writing about. Read more coverage about it here.]

Suzanne Shell, the owner of the website, discovered that multiple copies of her site had been added to the Internet Archive. She threatened the Internet Archive with litigation, invoking her site’s terms of use which included provisions that purported to charge users $5,000 each time they made a copy of a page on the site. The terms included a bunch of other onerous provisions as well, purporting to impose a number of draconian penalties on Internet users making unauthorized copies of the website.

Wayback Machine

In response to Shell’s threats of litigation and demands for payment, Internet Archive filed a declaratory judgment action in the Northern District of California, seeking a determination that its activities did not infringe Shell’s copyright. The action was later transferred to the District of Colorado.

Not surprisingly, Shell filed several counterclaims against the Internet Archive and members of its board of directors. She alleged causes of action for copyright infringement, conversion, civil theft, breach of contract, and racketeering under RICO and the corresponding Colorado statute.

Internet Archive filed a 12(b)(6) motion to dismiss the conversion, civil theft, breach of contract and racketeering claims. The court dismissed all but the breach of contract claim.

In dismissing the conversion and civil theft claims, the court held that although the claims were not preempted by the Copyright Act (as each claim included at least one element not included in a prima facie case of infringement), Shell failed to allege facts sufficient to support the causes of action. As for the conversion claim, it was undisputed that the Internet Archive had complied with Shell’s request to remove the cached pages from the archive. Accordingly, Shell would not be able to prove that the Internet Archive refused to return any property to her. Moreover, Shell had failed to allege that Internet Archive exercised dominion or control over her website, since it was undisputed that she continued to own and operate the site when it was archived.

The racketeering claims failed because Shell failed to allege that Internet Archive was involved in any racketeering enterprise.

So that left the breach of contract claim, the only claim to survive the motion to dismiss. Shell contended that Internet Archive entered into a contract with her when it copied her web pages, and that it breached that contract when it failed to pay her according to her terms of use. Internet Archive argued, on the other hand, that it did not learn about the terms of service until after it copied the pages, and accordingly there was no mutual assent to the terms. Furthermore, there was no human acting on behalf of Internet Archive to copy the pages, just the automatic crawler. Internet Archive argued that without actual knowledge, there could not be an enforceable contract.

The court rejected Internet Archive’s argument at this stage of the litigation, however, determining that the factual question of whether it knew about the terms could not be determined on the record before the court. Shell had satisfied the pleading requirements for federal litigation, by alleging the existence of a contract, breach and damages, which was sufficient to make out a claim for breach of contract.

Internet Archive v. Shell, (Slip Op.) 2007 WL 496680 (D.Colo., Feb. 13, 2007)

Suzanne Shell has been involved in other copyright litigation recently. Read more here. As has the Internet Archive and its founder Brewster Kahle. Read about that here.

Terms of e-commerce agreement not part of previous franchise agreement

Arbitration provision in later agreement not applicable to previous agreement, where contracts independent, collateral, and not inconsistent with one another.

Defendant AMF, the well-known manufacturer of bowling and billiards equipment, entered into an oral franchise agreement with plaintiff Suburban Leisure Center, whereby Suburban would sell AMF’s products in the St. Louis area. Later, the parties entered into a written “e-commerce” agreement, whereby Suburban agreed to service products in its geographic area that were sold through AMF’s website.

After AMF sought to terminate the oral franchise agreement, Suburban filed suit, claiming, among other things, that AMF had not provided the proper notice of termination under Missouri law. AMF moved to dismiss Suburban’s claim, arguing that under the terms of the e-commerce agreement, the exclusive method of dispute resolution between the parties was through arbitration. The district court denied the motion to dismiss, and AMF sought review. On appeal, the Eighth Circuit affirmed.

AMF had argued that the e-commerce agreement (which contained the arbitration provision) fully set forth the terms of the contract. AMF pointed to a “merger clause” (also known as an “integration clause” or “entire agreement” clause) in the agreement. Because of this clause, AMF contended, the parol evidence rule prohibited considering the terms of the oral franchise agreement, which contained no mention of arbitration.

The court disagreed, however. Applying Virginia law as required by the choice of law provision in the e-commerce agreement, the court examined the “collateral contract doctrine.” It noted that the oral franchise agreement addressed a contractual relationship between the parties that was not covered in any manner by the e-commerce agreement. As a result, the oral franchise agreement was “independent of, collateral to, and not inconsistent with” the e-commerce agreement. Examination of parol evidence, namely, the terms of the oral agreement, was therefore proper.

Because the agreements were independent of each other, the e-commerce agreement’s arbitration language could not be attributed to the oral franchise agreement. After all, the dispute was over the termination of the franchise, not the agreement to service products that had been sold through AMF’s website. The oral franchise agreement did not provide for arbitration. Because a “party cannot be required to submit to arbitration any dispute which he has not agreed so to submit,” the matter was properly before the court, and the lower court’s denial of the motion to dismiss was proper.

Suburban Leisure Center, Inc. v. AMF Bowling Products, Inc., — F.3d —-, No. 06-1865, 2006 WL 3332965 (8th Cir., November 17, 2006).

Court examines conversion claim in breach of EULA case

Plaintiff Meridian Project Systems, Inc., a purveyor of construction project management software, was peeved to see that a couple of its licensees collaborated to reverse engineer Meridian’s flagship software product. Meridian filed suit, alleging numerous claims, including conversion. It claimed that the defendants converted both tangible property relating to the licensed software, as well as “concepts, logic, processes, features and functions of [the software] to the extent not covered by its copyrights.”

The defendants moved to dismiss, alleging that Meridian had failed to state a claim upon which relief could be granted. Furthermore, the defendants argued that the claim of conversion of the intangible aspects of the software was preempted by the Copyright Act. The court denied the motion in part, and granted it in part.

The court held that Meridian adequately alleged conversion of the physical components of the software. The End User License Agreement (“EULA”) provided that upon any violation of the agreement, the licensees were to either destroy or return the software’s physical components. In this case, Meridian sufficiently alleged a breach of the agreement, namely, the act of reverse engineering the software. Because the defendants did not thereupon return the “disks, files, and other documents,” such items were “unlawfully retained.” These allegations supported a claim of conversion.

There could be no conversion, however, of the intangible aspects of the software. The court held that the elements which Meridian claimed were converted fell within the general subject matter of copyright, even though they were not actually entitled to copyright protection. Meridian’s claim arising out of the alleged conversion was one seeking to assert rights equivalent to a claim for copyright infringement. Accordingly, this portion of the conversion claim was preempted by the Copyright Act.

Meridian Project Systems, Inc. v. Hardin Construction Co., (Slip Op.) 2006 WL 1062070 (E.D. Cal., April 21, 2006).