Simonoff v. Expedia

Citation
Simonoff v. Expedia, Inc., 2011 WL 1991211 (9th Cir. May 24, 2011) (full-text).

Factual Background
Expedia, Inc. operates a travel website that accepts credit cards and debit cards for the reservation of flights, hotels, cars, cruises, etc. Plaintiff Simonoff purchased travel arrangements through Expedia’s website and was emailed a receipt, which included the expiration date of his credit card. Simonoff brought this suit against Expedia for violation of the Fair and Accurate Credit Transactions Act (“FACTA”). The trial court dismissed the action, holding that FACTA does not apply to emailed receipts. The plaintiff appealed.

Appellate Court Proceedings
Congress enacted FACTA in 2003 in part, to combat identity theft. FACTA provides that: “[N]o person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.” Furthermore, this provision “shall apply only to receipts that are electronically printed, and shall not apply to transactions in which the sole meaning of recording a credit card or debit card number is by handwriting or by an imprint or copy of the card.” 15 U.S.C. § 1681c(g)(1)-(2).

The term “electronically printed” is not defined in the statute and must be interpreted using its ordinary meaning. The ordinary meaning of “print” involves a physical imprint onto paper or another tangible medium. That FACTA uses the phrase “electronically printed” as opposed to simply “print” does not change the analysis. “Electronically printed” is used to clarify the manner of printing by differentiating receipts printed with electronic devices from receipts printed by hand or by manual imprint; it does not change the definition of “print.”

Although this holding is one of first impression in the Ninth Circuit it is not a surprising result and brings that Circuit in line with the Seventh Circuit and a majority of district courts. In addition to the interpretation of FACTA, the ruling in this case also offers some drafting tips for forum selection clauses.

Simonoff initially filed this action in Illinois state court. Expedia removed the case to federal court and then moved to dismiss based on the forum selection clause in its user agreement. Simonoff voluntarily dismissed the action and re-filled in state court in King County, Washington. Expedia again removed the case to federal court and the district court denied Simonoff’s motion to remand.

Expedia’s terms of use provides in relevant part: “You hereby consent to the exclusive jurisdiction and venue of courts in King County, Washington. . . in all disputes arising out of or relating to the use of this Website.” (Emphasis added.) Simonoff argued that the language “in King County” limits jurisdiction to the state courts. The Ninth Circuit recently held in Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009) that the use of the preposition “of” in the phrase “the courts of Virginia” was determinative. The phrase “the courts of” a state refers to courts that derive their power from the state – i.e., only state courts. By contrast, the phrase “the courts in” imposes a geographic limitation, not one of sovereignty. As such, “in” includes both state and federal courts. Because the Expedia forum selection clause uses the preposition “in,” the contract contemplates federal as well as state courts as proper courts for adjudication.

The Ninth Circuit affirmed the dismissal.