Appeal from the Superior Court of the District of Columbia (CA-405-01) (Hon. Rhonda Reid Winston, Trial Judge)
Before Steadman and Reid, Associate Judges, and Newman, Senior
The opinion of the court was delivered by: Steadman, Associate Judge
The question in this case is whether a forum selection clause mandating that claims be brought in Virginia should be applied to appellant's purported class action involving consumers' attempts to register for and use Verizon Internet Services, Inc.'s ("VIS") digital subscriber line ("DSL") service. We hold that enforcement of this clause is reasonable and that all of appellant's claims fall within the scope of the clause. Consequently, we affirm the trial court's order dismissing appellant's suit.
VIS is a Delaware corporation with its principal place of business in Reston, Fairfax County, Virginia. *fn1 Among its services are DSL Internet access, which provides access at a much higher speed than dial-up connections. VIS has signed up hundreds of thousands of subscribers, including at one point appellant. He is a District of Columbia resident who is an attorney employed by the Department of Justice.
According to appellant, activating the DSL service involved a period of lengthy delays. Once the service was activated, "customers have experienced frequent and lengthy disruptions in service, and the service has operated at speeds much lower than promised." Appellant himself alleges that he signed up for DSL service in August 2000 and was promised activation would occur on August 14, 2000. However, he never actually received the service on that date or afterwards and finally canceled the service in December 2000.
Subsequently, appellant *fn2 filed a purported class action *fn3 in District of Columbia Superior Court alleging breach of contract, negligent misrepresentation, and violation of Virginia's consumer protection laws. *fn4 VIS responded with a motion to dismiss based upon a forum selection clause in the Verizon Internet Services Access Agreement ("Agreement") that provided that subscribers to the DSL service "consent to the exclusive personal jurisdiction of and venue in a court of competent jurisdiction located in Fairfax County, Virginia." *fn5 The trial court, after carefully analyzing the parties' contentions, issued an order granting the motion to dismiss. Appellant filed a timely appeal. The trial court's interpretation of the forum selection clause, a contractual provision, is subject to de novo review. See Terra Int'l v. Mississippi Chem. Corp., 119 F.3d 688, 692 (8th Cir.), cert. denied, 522 U.S. 1029 (1997).
In this case we address, apparently for the first time, the validity of a forum selection clause in the District of Columbia courts. *fn6 Historically, such clauses were not favored by American courts. However, in the past three decades, commencing with the Supreme Court's influential decision in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), jurisprudence has sharply shifted; "such clauses are [now] prima facie valid and [will] be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances." Id. at 10; see also Professional Ins. Corp. v. Sutherland, 700 So. 2d 347, 350 n.3 (Ala. 1997) (listing jurisdictions where clauses are presumptively valid); Restatement (Second) of Conflict of Laws § 80 (1988) ("The parties' agreement as to the place of the action will be given effect unless it is unfair or unreasonable."). We concur with these authorities and adopt the modern rule for the District of Columbia as well.
The question before us, then, is whether appellant has shown that enforcement of the clause in the Agreement is "unreasonable under the circumstances."
First, "[a]s a threshold matter, the validity of a forum selection clause . . . depends on whether the existence of the clause was reasonably communicated to the plaintiff." O'Brien v. Okemo Mt., 17 F. Supp. 2d 98, 103 (D. Conn. 1998). Appellant argues that VIS "did not provide . . . adequate notice of the clause or its significance."
To become DSL subscribers, customers must agree to all the terms of the Agreement, including the forum selection clause. The clause is found in the final section of the main text of the Agreement, which, when printed out, totals thirteen pages (including two lengthy appendices). Many consumers, though, presumably read the Agreement in a scroll box on their computer monitors, where only a small portion of the document is visible at any one time. The contract is entered into by the subscriber clicking an ...