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Thursday, May 01, 2008

In Case You Missed It: Judge Dismisses Cheating Husband’s Breach of Privacy Policy Case

By Dino Tsibouris & Mehmet Munur

A federal judge in Texas recently dismissed a case (due to improper venue) in which the plaintiff alleged that the website’s breach of its privacy policy led to his wife finding out about his infidelity, which ultimately led to his divorce.

Plaintiff Leroy Greer called 1-800-FLOWERS (Company) and ordered flowers for his girlfriend. He was directed to 1-800-flowers.com when he inquired about the Company’s privacy policy. After the purchase, the Company sent a “thank you” note to his home, which prompted his wife to contact the Company for proof of purchase, a copy of the note attached to the flowers, and information about the husband’s girlfriend. Greer filed suit for $1.5 million arguing that the Company’s actions breached the privacy policy and caused him damages in connection with the divorce that followed.

In its defense, the Company argued that the forum selection clause of the website terms of use specifically assigned Nassau or Suffolk counties of New York exclusive jurisdiction. In response, Greer argued that because the transaction had taken place over the telephone, the forum selection clause was not applicable. In essence, Greer argued that his use of the website to view the privacy policy did not amount to full-fledged use to trigger the terms of use but that the phone transaction governed.

The court disagreed for two reasons. First, the privacy policy was a part of the terms of use which stated that accessing any part of the website legally bound the user to its terms. In other words, Greer was cherry-picking the parts of his agreement with the Company—wanting to enforce the privacy policy but not the terms of use. Second, the court ruled that Greer did not successfully show that the terms of use only applied to web transactions.

The court then summarily found that that the forum selection clause did not violate the Supreme Court’s four-factor forum selection test. After all, whether the Plaintiff actually read the terms of use was beside the point considering that the privacy policy contained a link to it, specifically mentioned it, and notified the user of its existence. Greer was going to have sue the Company in New York.

While Greer’s lawyer suggested that they would be filing the case in New York in the next couple of weeks, research has not revealed whether he actually has. For details related to Greer’s note to his girlfriend and his wife’s discovery, visit here. Visit here for the MSNBC story.
The case is Greer v. 1-800-Flowers.com, Inc., No. H-07-2543, 2007 U.S. Dist. LEXIS 73961 (S.D. Tex. Oct. 3, 2007).

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