Cairo, Inc. v. Crossmedia Services, Inc.

Defendant created web pages for retail clients that showed shoppers the retailer’s specials and promotional materials. Defendant also provided shoppers access to these web pages. Visitors to the retailer web pages created by Defendant were directed to a web page run by Defendant that required the shopper to enter certain information before accessing the retailer promotional site. Each of the pages hosted by Defendant displayed its name and logo and a notice that “By continuing past this page and/or using this site, you agree to abide by the Terms of Use for this site, which prohibit commercial use of any information on this site.” The shopper was informed that the Terms of Use were a binding contract and that if the shopper did not wish to be bound by the agreement, he or she should not use the website. The Terms of Use included a forum selection clause, requiring all disputes to be litigated within state or federal courts in Chicago, Illinois. Plaintiff created a website allowing users to search its database of in-store sales information. In order to acquire the information for this database, Plaintiff automatically visited retailers’ websites with computer programs known as “robots,” “spiders,” or “crawlers,” which recorded relevant sales information and included it in its database, but which could not read Defendant’s Terms of Use. Within days of launch, Defendant became aware of Plaintiff’s website and that Plaintiff was copying the promotional materials from Defendants web pages and posting them on Plaintiff’s site. Defendant sent Plaintiff a cease and desist letter claiming that Plaintiff’s actions violated Defendant’s Terms of Use. Plaintiff continued to visit Defendant’s websites. Shortly after receipt of this demand, Plaintiff filed an action for declaratory relief against Defendant in federal court in California, seeking a declaration that its actions did not violate any of Defendant’s rights. Plaintiff moved to dismiss the action for improper venue, arguing that its forum selection clause required litigation in Chicago. Plaintiff argued that it was unaware of the forum selection clause until litigation began, and that no agreement existed between the parties as Plaintiff had not assented to the Terms of Use or forum selection clause.