Caspi v. Microsoft Network, L.L.C., 323 N.J. Super. 118, 732 A.2d 528 (App. Div. 1999)
Caspi v. Microsoft is a foundational case in the law of electronic contracts that validated the enforceability of clickwrap agreements and, in particular, their forum-selection clauses.
Is a forum-selection clause contained in an online clickwrap Member Agreement—assented to by clicking "I agree" after being presented with the terms in a scrollable window—enforceable against subscribers, thereby requiring dismissal of their New Jersey action in favor of the designated Washington forum?
Forum-selection clauses are presumptively valid and will be enforced unless the resisting party shows enforcement would be unreasonable under the circumstances—such as where the clause is the product of fraud or overreaching, where enforcement would violate a strong public policy of the forum, or where the chosen forum is so seriously inconvenient that the party would effectively be deprived of a day in court. Standard-form adhesion contracts are enforceable unless shown to be unconscionable or contrary to public policy; failure to read terms does not defeat assent where the terms were reasonably communicated and the user manifested agreement.
The forum-selection clause in MSN's clickwrap Member Agreement is enforceable. The New Jersey action was properly dismissed so that any dispute would be brought exclusively in the state or federal courts of King County, Washington.
Caspi is a touchstone for the enforceability of online clickwrap agreements and forum-selection clauses. It teaches that clear, reasonably presented click-to-accept terms will bind consumers, even in adhesion settings, and that forum-selection provisions will be enforced absent a concrete showing of fraud, overreaching, strong countervailing public policy, or truly grave inconvenience. For law students, the case illustrates how traditional contract and civil procedure doctrines—assent, adhesion, unconscionability, and forum-selection enforcement—operate in the digital marketplace and informs best practices for drafting and presenting online terms.