## Facts

- Domenic Tricome operated an online vitamins and supplements business and also sold products through eBay.
- To register and use eBay, Tricome completed an online process requiring him to affirmatively accept eBay’s User Agreement.
- The User Agreement contained a forum-selection clause requiring disputes to be brought in Santa Clara County, California.
- After a customer left negative feedback, Tricome complained to eBay and was told his recourse was to sue the customer.
- Tricome sued the customer in state court; eBay then terminated his eBay account.
- Tricome alleged the termination harmed his business, including forcing a sale at a reduced value.
- Tricome sued eBay in the Eastern District of Pennsylvania asserting state-law tort and contract claims and alleging losses tied to federal antitrust law.
- eBay moved to dismiss or transfer based on the forum-selection clause.

## Issues

1. Whether Tricome was bound by the forum-selection clause in eBay’s clickwrap User Agreement.
2. Whether the forum-selection clause was unenforceable due to fraud, overreaching, unconscionability, public policy, or extreme inconvenience.
3. Whether the proper remedy was transfer under 28 U.S.C. § 1404(a) rather than dismissal.

## Decision

- The court held the forum-selection clause was valid and enforceable.
- The court found Tricome assented to the User Agreement through the required clickwrap acceptance process.
- The court determined Tricome failed to show the clause was unreasonable (including no showing of clause-specific fraud or overreaching).
- The court granted the motion in part and ordered transfer to the U.S. District Court for the Northern District of California (San Jose Division) under § 1404(a), rather than dismissing.

## Legal Principles

- Forum-selection clauses are presumptively valid and enforced unless the resisting party shows enforcement is unreasonable, including where the clause results from fraud or overreaching, violates strong public policy, or imposes such severe inconvenience that it effectively denies a day in court.
- Allegations of fraud relating to the overall contractual relationship do not defeat a forum-selection clause absent fraud directed at the clause itself.
- Clickwrap assent formed by mandatory affirmative acceptance (e.g., checking an “I accept” box required to complete registration) generally establishes agreement to contractual terms, including a forum-selection clause.
- Under 28 U.S.C. § 1404(a), a valid forum-selection clause receives substantial weight and can overcome the plaintiff’s choice of forum when transfer serves convenience and the interest of justice.

## Conclusion

The court enforced the forum-selection clause in eBay’s clickwrap User Agreement, found no basis to deem it unreasonable, and transferred the action to the Northern District of California under § 1404(a) so the dispute would proceed in the contractually chosen forum.


Tricome v. eBay, Inc., 2009 U.S. Dist. LEXIS 97045 (E.D. Pa. 2009)