What’s wrong with this clause?February 28th, 2007 by Joe Jones |
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I noted this something like a year ago, and just found it now, so I can’t tell you exactly where it came from, except that it was part of the terms and conditions for an online sweepstakes:
You hereby consent to jurisdiction and venue in the state and federal courts in Los Angeles County, California, waive the personal service of any process upon them and agree that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail (with delivery receipt) to the address you provided and agree that any claim against us must be filed within one (1) year of the time such claim arises, regardless of any law to the contrary; otherwise your claim will be barred forever.
Lots of problems here. Any of you armchair lawyers care to pick some of them out?
March 1st, 2007 at 12:09 am
Yup, it’s a mess:
Which is it, state or federal? And which courts exactly? What is the governing law?
This is probably valid, depending on the governing law of the agreement.
Many jurisdictions allow you to shorten a claim, which is probably what this does. This may be valid, but it’s written like a train wreck.
Of course, I’m not a California attorney, but that’s my take.
March 2nd, 2007 at 12:11 am
All good points.
One biggie: “You hereby consent.” The obvious intent of this clause is to force the end user to bring their suit in Los Angeles, where the company is based. The problem is that “consenting” to jurisdiction only means something if the user is being sued, which would probably not be the case in a sweepstakes where the user gets nothing until they win.
So say I sue them in Philadelphia. They protest based on this clause. I say: “Yes, I did consent to jurisdiction and venue in Los Angeles. Now I’m consenting to jurisdiction and venue in Philadelphia, too.”
All that particular part needs is the word “exclusive,” or perhaps to be changed to read: “You agree to file any complaint or other action related to this agreement in a state or federal court in Los Angeles.”
March 4th, 2007 at 11:50 pm
Yeah, i was thinking 1) Curzon’s point about state and Federal – now I’m not sure of this, but I don’t think federal courts go by counties, they have districts, right? Maybe I’m wrong here…
2) There’s no exclusivity. I know the contracts that my company has have a clause along the line of only civil courts in Tokyo in tersm of restricting the venue of claim.