Forrest v. Verizon Communications

Citation: Forrest v. Verizon Communications Inc., 805 A.2d 1007 (D.C. App. 2002).

Factual Background
In August 2000, Plaintiff Bruce Forrest contracted with Verizon Communications, Inc (VCI), and its wholly owned subsidiary, Verizon Internet Services (VIS) for DSL Internet Service. VCI is a Delaware corporation with its principal place of business in Fairfax County, Virginia. VCI provides high-speed Internet access via Digital Subscriber Line (DSL) service.

VCI’s service Agreement requires customers, including plaintiff, to agree to all the terms of the Agreement, including a forum selection clause specifying that subscribers, “consent to the exclusive personal jurisdiction of and venue in a court of competent jurisdiction located in Fairfax County, Virginia.” The entire agreement appears to customers in a scroll box, allowing customers to view only a small portion of the agreement at any given time. In order to assent to the terms of the agreement, subscriber must click an “Accept” button below the scroll box. A note cautioning potential customers to “READ THE FOLLOWING AGREEMENT CAREFULLY” precedes the agreement itself.

Trial Court Proceedings
Forrest brought suit against VCI alleging that, once the DSL service was activated, “customers. . . experienced frequent and lengthy disruptions in service, and the service has operated at speeds much lower than promised.” Forrest signed up for DSL service in August 2000 and “was promised activation would occur on August 14, 2000.” However, Forrest claims he never received DSL service and subsequently canceled with VCI in December 2000, after prolonged delays and unsatisfactory customer support.

Forrest and four other named plaintiffs filed an uncertified class action suit in District of Columbia Superior Court for breach of contract, negligent misrepresentation, and violation of Virginia's consumer protection laws. Forrest argued that the scroll box agreement was inadequate to provide notice of the terms of the contract and further, that the forum selection clause was improper because it did not notify customers of Virginia’s lack of a class action remedy. Forrest also claimed that enforcement of the forum selection clause would be “unreasonable under the circumstances,” since Virginia law precludes class action suits and would thus deprive Forrest of his day in court.

VCI filed a motion to dismiss relying on the forum selection clause. The trial court granted the motion to dismiss. Only Forrest chose to appeal.

Appellate Court Proceedings
On appeal, the Court of Appeals noted that absent fraud, duress or misrepresentation, a binding forum selection clause is not inherently unfair if “reasonably communicated to the plaintiff.” Likewise, the use of an electronic service agreement contained in a scroll box does not amount to inadequate notice. The Appellate court reasoned that many contracts contain forum selection clauses and do not specify every nuance of the specified forum’s law. Therefore, the forum clause was reasonably communicated and is thus enforceable.

As to appellant's claim that enforcement would be unreasonable in the present case, the court noted that appellant would need to prove that “(i) [the clause] was induced by fraud or overreaching, (ii) the contractually selected forum is so unfair and inconvenient as, for all practical purposes, to deprive the plaintiff of a remedy or of its day in court, or (iii) enforcement would contravene a strong public policy of the [forum] where the action is filed.” Appellant could point to no fraud or overreaching, nor claim that the forum was inconvenient (the court noted that Forrest “need only cross the Potomac River”), and likewise, public policy dictates a strong need to uphold forum selection clauses wherever possible.

Thus, the Court affirmed the trial court’s granting of VCI’s motion to dismiss stating that “a contract is no less a contract simply because it is entered into via a computer.”