IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA AMERICA ONLINE, INC., : : Petitioner : : v. : Case No. : ROBERT PASIEKA, on behalf : L.T. Case No: 1D of himself and all others : similarly situated, : : Respondent : : ON REVIEW FROM THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, STATE OF FLORIDA PETITIONER'S JURISDICTIONAL BRIEF Edward M. Waller Jr., Esquire Florida Bar No Hala A. Sandridge, Esquire Florida Bar No FOWLER WHITE BOGGS BANKER P.A. Post Office Box 1438 Tampa, Florida (813) and Everett Johnson, Jr., Esquire Michael J. Golden, Esquire Latham & Watkins 555 Eleventh Street, N.W. Ste 1000 Washington, D.C (202) Phone (202) Fax

2 TABLE OF CONTENTS STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 JURISDICTIONAL STATEMENT... 4 ARGUMENT... 5 THE FIRST DISTRICT'S DECISION IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE THIRD DISTRICT'S DECISIONS IN WORLD VACATION TRAVEL V. BROOKER, 799 SO. 2D 410 (FLA. 3D DCA 2001), AND AMERICA ONLINE INC. V. BOOKER, 781 SO. 2D 423 (FLA. 3D DCA 2001) CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF TYPE SIZE AND STYLE...10 i

3 TABLE OF AUTHORITIES Decisional Authority Page America Online Inc. v. Booker 781 So. 2d 423 (Fla. 3d DCA 2001)...6, 7 Management Computer Controls v. Charles Perry Const. 743 So. 2d 627 (Fla. 1st DCA 1999)... 2 World Vacation Travel v. Brooker 799 So. 2d 410 (Fla. 3d DCA 2001)... 6 Other Authority Florida Constitution Art. V, 3(b)(3) Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv).. 5 Florida Rule of Appellate Procedure 9.120(d)... 2 ii

4 STATEMENT OF THE CASE AND FACTS Robert Pasieka subscribed to AOL's online service. 1 Pasieka's Member Agreement with AOL contained a forum-selection clause which provided for exclusive jurisdiction in the courts of Virginia as to "any claim or dispute with AOL or relating in any way to... membership or... use of AOL." Pasieka alleged that AOL wrongfully billed him for services he purportedly canceled. He brought this putative class action against AOL on behalf of himself and all others similarly situated, alleging violations of 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. The circuit court refused to enforce the forum-selection clause and AOL appealed. On appeal, the First District held the forumselection clause was enforceable in this FDUTPA lawsuit. It relied upon its former decision in Management Computer Controls v. Charles Perry Const., 743 So. 2d 627 (Fla. 1st DCA 1999), which it claimed held that a "FDUTPA claim was not subject to the forum selection clause, as that would undermine the effectiveness and purpose of the [FDUTPA] statute." 1 Pursuant to Florida Rule of Appellate Procedure 9.120(d), an appendix containing a conformed copy of the First District's opinion accompanies this brief. 1

5 In addition, the First District refused to enforce the forum- selection clause because the contractually agreed upon forum (Virginia) did not provide a class action mechanism. Specifically, the First District stated: Various other courts have declined to enforce this same forum selection clause in these circumstances, involving class action lawsuits under consumer protection statutes. Such courts have refused to give effect to the clause where a similar action and comparable remedy could not be pursued in the foreign state.... As in Management Computer the purpose and effectiveness of the FDUTPA would be seriously undermined if the claims here were required to be brought in Virginia. The First District denied AOL's motion for rehearing, certification, and rehearing en banc on March 31, On April 29, 2004, AOL filed a timely notice to invoke this Court's discretionary jurisdiction. 2

6 SUMMARY OF THE ARGUMENT The First District Court of Appeal s decision in the present case expressly and directly conflicts with decisions of the Third District Court of Appeal on the same questions of law. This Court has jurisdiction to resolve that conflict. The conflict involves two separate issues: (1) whether a contractual forum-selection clause is enforceable with respect to a FDUTPA claim; and (2) whether a forum-selection clause is enforceable when a procedural mechanism available in the transferor state is not available in the transferee state. In the present case, the First District answered both questions in the negative. The Third District, on the other hand, held in two separate cases that: (1) a comparable forum-selection clause was enforceable with respect to FDUTPA claims; and (2) the absence of a class action mechanism in a transferee state did not prevent enforcement of a forum-selection clause. These rules of law conflict. This Court should exercise its discretionary jurisdiction to resolve the conflicts. 3

7 JURISDICTIONAL STATEMENT This Court has discretionary jurisdiction to review a decision of the district court of appeal that expressly and directly conflicts with decisions of this Court or another district court of appeal on the same question of law. See Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). As the following demonstrates, the First District's opinion in this case falls squarely within this Court's jurisdiction. 4

8 ARGUMENT THE FIRST DISTRICT'S DECISION IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE THIRD DISTRICT'S DECISIONS IN WORLD VACATION TRAVEL V. BROOKER, 799 SO. 2D 410 (FLA. 3D DCA 2001), AND AMERICA ONLINE INC. V. BOOKER, 781 SO. 2D 423 (FLA. 3D DCA 2001). The First District below refused to apply a forum-selection clause to plaintiff s FDUTPA claim. Conversely, in World Vacation Travel v. Brooker, 799 So. 2d 410 (Fla. 3d DCA 2001), the Third District Court of Appeal concluded that a FDUTPA claim was subject to a forum-selection clause. In Brooker, the Third District expressly stated: [E]nforcement of the forum selection clause as to any of the Brookers' claims, including a claim under Florida's Antitrust Act and Florida's Unfair and Deceptive Trade Practices Act, is not violative of Florida public policy. Id. at 412. Yet, the First District reasoned exactly opposite below when it held that it was bound by its ruling in Management Computer that a: FDUTPA claim was not subject to the forum selection clause, as that would undermine the effectiveness and purpose of the [FDUTPA] statute. The cases cannot be factually distinguished; they involve virtually identical forum-selection clauses. 5

9 The decision below conflicts with another decision from the Third District on a separate rule of law. In America Online Inc. v. Booker, 781 So. 2d 423, 424 (Fla. 3d DCA 2001), the trial court denied application of a forum-selection clause, finding the clause unenforceable because it would prevent plaintiffs from employing a class action mechanism in a Virginia court. Reversing that decision, the Third District upheld the same forum-selection clause asserted by AOL here and stated: The unavailability of a class action procedure in the transferee forum is not sufficient, standing alone, to render an otherwise valid forum-selection clause unenforceable. Florida plaintiffs cannot defeat otherwise valid provisions requiring suit in other states simply by asserting a cause of action in the name of a putative class. Id. at 425. The decision herein conflicts with Booker on this issue. The First District expressly held: Various other courts have declined to enforce this same forum selection clause in these circumstances, involving class action lawsuits under consumer protection statutes. Such courts have refused to give effect to the clause where a similar action and comparable remedy could not be pursued in the foreign state... These cases emphasize the necessity of allowing such actions to proceed without compelling them to be brought in Virginia, given the small monetary amounts typically involved. 6

10 Thus, the Third District permits enforcement of a forumselection clause when the tranferee state does not permit class actions; the First District holds the opposite. 7

11 CONCLUSION The citizens of this State are entitled to the same rule of law, no matter where they reside or in what district they litigate. As it now stands, a party seeking to enforce a forumselection clause in a FDUTPA lawsuit in Tallahassee receives a different result from a party in Miami. And, a Pensacola court would deny enforcement of a forum-selection clause if the transferee state does not permit class actions; a Coral Gables court would enforce it. For the reasons expressed above, and because these divergent holdings impact thousands of internet service and other contracts throughout the state of Florida, AOL respectfully requests that this Court exercise its discretion to resolve this dispute and end these discrepancies. Respectfully submitted, Everett Johnson, Jr. Michael J. Golden LATHAM & WATKINS 555 Eleventh Street, N.W. Ste 1000 Washington, D.C (202) Phone (202) Fax Edward M. Waller, Jr. FBN Hala Sandridge, FBN FOWLER WHITE BOGGS BANKER P.A. P. O. Box 1438 Tampa, FL (813) (813) Fax Counsel for Petitioner/Defendant America Online, Inc. By: Edward M. Waller, Jr., Esquire 8

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have caused a true and correct copy of the foregoing to be served by U. S. Mail upon: Christa L. Collins James Hoyer Newcomer & Smiljanich, P.A. One Urban Center, Suite West Kennedy Blvd. Tampa, FL Mark S. Fistos James, Hoyer, Newcomer & Smiljanich, P.A Thomasville Road, Suite A200 Tallahassee, FL on May 10, Edward M. Waller, Jr. 9

13 CERTIFICATE OF TYPE SIZE AND STYLE Counsel for Petitioner, AOL Corporation, certify that this brief is printed in Courier 12 point font, a monospaced typeface which has 10 characters per inch. Edward M. Waller, Jr. 10