Williams v. AOL

Citation: Williams v. America Online, Inc., 2001 WL 135825 (Mass. Super. 2001).

Factual Background
Plaintiffs claimed that AOL's Version 5.0 software caused damage to their computer]s, alleging [[unfair trade practices under Massachusetts Law, Chapter 93A. This, noted Justice Hinkle, is but one of many similar lawsuits throughout the United States. All the federal actions, with the agreement of AOL, had been consolidated. In the consolidation order that sent over forty cases to the Southern District of Florida the Judicial Panel on Multidistrict Litigation wrote:


 * Common factual questions arise because, although the legal theories vary, all actions related to the use of Version 5.0 of the AOL software, and name AOL as the sole defendant…. They allege that Version 5.0 makes it difficult or impossible to access competing Internet service providers and disables, interrupts, or interferes with the operation of various types of non-AOL software.

Trial Court Decision
AOL removed the case to the Massachusetts federal district court, which remanded it. Plaintiffs allege that the AOL program changes the user's “computer configuration at the beginning of the installation process before plaintiffs … had an opportunity to agree to AOL's ‘Terms of Service ([TOS]]),’ which includes the forum selection clause requiring exclusive jurisdiction in Virginia. [Note: Virginia has enacted the Uniform Computer Information Transactions Act.

One expert testified in the Massachusetts court that he cancelled the AOL 5.0 installation and did not accept the TOS, but “his computer configuration had already been ‘extensively modified’ and his ‘previously working internet connection was rendered non-functional’. . . .”

AOL responded by noting that plaintiffs were already AOL subscribers when they installed Version 5.0, and the earlier TOS also included the forum selection clause. To this Judge Hinkle stated, in rejecting AOL's argument:


 * [T]he fact that plaintiffs may have agreed to an earlier TOS or the fact that every AOL member enters into a form of TOS agreement does not persuade me that plaintiffs and other members of the class they seek to represent had notice of the forum selection clause in the new TOS before reconfiguration of their computers.

And, she continued, “Public policy suggests that Massachusetts consumers who individually have damages of only a few hundred dollars should not have to pursue AOL in Virginia.” A third factor was that the MDL Panel had transferred all of the federal cases to Florida. “If AOL can make its witnesses and documents available in Florida for every federal case, defending this action is Massachusetts should cause AOL no harm.” The motion to dismiss was denied.