In a recent US lawsuit Tricome v. eBay, Inc., 2009 WL 3365873 (E.D.Pa. Oct 19, 2009), a user sued eBay in Pennsylvania and eBay invoked the “forum selection clause” in its online agreement.  That clause specifies that disputes under the agreement have to be brought in California, eBay’s home turf.

The court decided that the clause was not shocking or unreasonable, the user had a choice of other service providers and was not forced into this agreement, and eBay did not use any “high pressure tactics” to get the user to agree. The court also recognized that eBay, as an international business, has a legitimate interest in controlling where it will litigate disputes. 

In Canada, there is also a growing line of cases establishing that “forum selection clauses” will be upheld. For example, see: Wembley Marketing Ltd. v. Itex Corporation, 2008 CanLII 67425 (ON S.C.), a recent Ontario decision.  This provides additional comfort for online retailers, licensors and service providers that such clauses in online user agreements will be upheld when they are well-drafted.

Calgary – 11:30 MST