Robert Pasieka sued America Online (“AOL”) in a class action on behalf of consumers who subscribed to AOL’s online services. The complaint described subscribers’ difficulty in canceling these services, as well as continued billing after cancellation, and alleged the use of deceptive and unfair methods with
respect to subscription efforts and customer retention practices. Pasieka filed the suit in Florida state court, making claims under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) and the Florida Free Gift Advertising Law (“FFGAL”).
AOL moved to dismiss the action for improper venue, arguing that the AOL Member Agreement provided for exclusive jurisdiction in the courts of Virginia of “any claim or dispute with AOL or relating in any way to … membership or … use of AOL ….” The trial court denied this motion, and AOL appealed.
The Florida Court of Appeals stated that forum selection clauses are generally not enforced in cases involving class action lawsuits under consumer protection statutes, at least where a “similar action and comparable remedy could not be pursued in the foreign state”. Citing previous Florida cases as controlling authority, the court found that allowing the substance of the FDUTPA and FFGAL claims to be litigated in a foreign state would undermine the purpose and effectiveness of the law in affording broad protection to the citizens of Florida. Further, because Virginia did not allow these claims to be pursued as a class action, a similar suit could not be filed there. In sum, because there was no comparable remedy in Virginia, the court upheld the denial of AOL’s motion to dismiss.