“…our TOS dictates that in this case, this dispute must be settled in a Dutch courthouse”
First of all, anyone using Dan.com in the US should understand that if things go wrong, you may not have access to US courts to resolve any issues.
Second, the situation may not be as simple as the above statement suggests. The claims in this lawsuit do not relate to a breach of the TOS. The primary claim against Dan.com is fraudulent misrepresentation and not breach of contract.
That said, it could come down to a hair-parting exercise as to whether the complaint presents the matter as a fraudulent misrepresentation to put a wig and a pair of glasses on a breach of contract claim and disguise it as something else.
In a very brief look at some cases, and I would suspect a much more casual look than Weslow et al. gave this over the course of the development of the complaint, you come across various cases, but not in Delaware or the 3rd Circuit that I’ve seen, where the courts have applied choice of court clauses in cases where there appears that the “non-contractual claims” were contrivances to circumvent a choice of court clause.
For example, the Second Circuit, which hears all federal appeals arising from an area that includes well-developed commercial centers such as New York, held in Roby v. Corp. of Lloyd’s, 996 F.2d 1353, 1360-61 (2d Cir. 1993)”
“It is foolish to suggest that a claimant can circumvent choice of court and arbitration clauses merely by asserting claims under laws not recognized by the forum chosen in the agreement. A plaintiff would simply have to allege violations of his country’s tort law or his country’s statutory law or his country’s property law in order to invalidate any forum selection clause that implicitly or explicitly requires the application of the law of another jurisdiction. We refuse to allow a party’s solemn promise to be nullified by a shrewd plea. See Coastal Steel Corp. vs. Tilghman Wheelabrator Ltd., 709 F.2d 190, 203 (3d Cir.), cert. refused, 464 US 938, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983). In the absence of other considerations, the agreement to submit to arbitration or to the jurisdiction of the English courts must be executed even if this agreement implicitly includes the forfeiture of certain claims which could have been brought in another forum.
Again, there may be a Delaware-specific wrinkle that can stand out, but the complaint seems a little weak on this point:
“47. Relying on DAN.com’s representations, Stands4 has not challenged the Forum Selection Clause included in the Terms of Service posted on the DAN.com website.
I haven’t seen the “did not challenge the clause relying on representations” exception to the forum selection clauses, but if the court finds that this complaint smacks like a contract claim disguised as a tort civil, then there’s going to have to be some pretty compelling reason why the forum selection clause shouldn’t apply.
You can say “I didn’t pay attention to the terms because I listened to what they said” all day, but there’s also an integration clause in Dan.com’s terms:
“15.3 The provisions of these Conditions establish the legal relationship between the Parties and supersede all prior agreements or declarations made by the Contractor and only provide proof thereof.”
Whether it was there at the time, or whether the claimant has some other authority or interesting factual distinction in mind, or whether the claimant is bluffing, all remains to be seen.
If you’re one of the team claimants, you’re going to be hoping for more than “but that’s not a contract claim.”
A hint could be here:
“11. Venue is proper in this district pursuant to 28 USC §§ 1391(b) and (c) because defendants are subject to personal jurisdiction in this district, and the unilateral forum selection clause posted on the site Web Dan.com is not enforceable under United States or European Union law”.
It would be more enlightening to know why the applicant believes this to be so. One can, of course, make “political arguments” to the effect of “My God, this is really, really, really not fair” but in the absence of certain relatively rare and extreme conditions, the courts will not are not responsible for deciding whether contracts are “fair”, they are responsible for deciding whether they are enforceable.
Again, please don’t confuse a few casual searches with a substitute for actual legal research of the kind one should engage in before filing or contesting a lawsuit – even more so if you plan to engage. an attorney who works in Montchanin, Delaware. The attorney’s office is located just uphill from the original DuPont family estate. When you see news clips of President Biden going to church on Sunday, it’s right across from the plaintiff’s chosen attorney, in the heart of Delaware’s most expensive real estate. Someone has to pay that rent, so it might as well be Stands4 LLC I guess, lol.
But the point to remember for those of you in the cheap seats is that you need to be careful about this stuff and not assume you have legal recourse in the local courts. Pay attention to Dan.com’s statement above that if you’re in the US and have a problem with them, then they think you’re not going to sue this problem in the US.