5381 Partners v. ShareASale.com

Internet Law

, New York Law Journal


Judge Joseph Bianco

Under their 2005 Merchant Agreement ShareASale marketed 5381's products on the Internet in exchange for commissions. Asserting fraud, contract breach and unjust enrichment, 5381 alleged it paid ShareASale more than $100,000 in fraudulent commissions. District court transferred suit to the Northern District of Illinois. Finding the circumstances analogous to Fteja v. Facebook, the court deemed the forum selection clause in ShareASale's Merchant Agreement on its website—setting courts in Illinois as the exclusive forum—presumptively enforceable. 5381 did not rebut evidence that its employees needed to affirmatively click to accept the Merchant Agreement before it could become a merchant through ShareASale. By affirmatively accepting the Merchant Agreement, 5381 agreed to be bound by all of the terms therein, including the forum selection clause, regardless if the agreement was read completely. Noting that suit could have been brought in the Northern District of Illinois, the court concluded that other factors considered strongly favored transfer. The locus of operative facts lied in Illinois. Nor did 5381 demonstrate how litigation in Illinois would be inconvenient or how it would be financially prejudiced by transfer.

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