By: Marty Gould, IIT Chicago-Kent College of Law
To what extent can companies “contract out” of state consumer protection statutes through the use of choice of law and forum selection clauses in standard form adhesion contracts? The only court in Illinois to rule on the issue, a state court case dealing with Match.com, held that the Illinois Dating Referral Services Act (IDRSA) voids forum-selection clauses contrary to stated Illinois public policy, as declared by Illinois statutes. Outside of Illinois, however, federal courts have held that the exact same Match.com forum-selection clause was valid and enforceable despite being in direct conflict with similar statutes in other states. These cases represent a split in decision and analysis, pitting the values of individual autonomy and economic efficiency against federalism and a state’s right to choose how it protects its citizens.
This article takes the position that the Illinois case arrives at the correct result. Part I of this article discusses Jane Doe v. Match.com—the Illinois case at issue. Part II discusses Brodsky v. Match.com, one of the main Match.com cases at odds with the Illinois decision. Part III discusses why the Illinois case is correct, highlighting the legal reasons under both Illinois and federal law. Specifically, Part III argues that the Illinois court had the authority to, and did, refuse to enforce Match.com’s forum selection clause pursuant to the public policy exception out-lined in M/S Bremen v. Zapata Off-Shore Co. Finally, Part IV discusses why public policy reasons justify and support the conclusion reached by the Illinois court. To preempt state consumer protection laws and any associated anti-waiver provisions, Congress must pass legislation to that end and clarify the existing uncertainty in the law. However, without Congress stepping in, federal courts should respect the principles of federalism and not enforce forum selection clauses that are in conflict with state consumer protection laws—at least in personal injury cases involving contracts of adhesion.
Cite as: Marty Gould, The Conflict Between Forum-Selection Clauses and State Consumer Protection Laws: Why Illinois Got It Right in Jane Doe v. Match.com, 90 Chi.-Kent. L. Rev. 671 (2015).