Fteja v. Facebook, Inc.

Plaintiff Mustafa Fteja alleges that defendant Facebook, Inc. (“Facebook”), the social networking website, disabled his Facebook account without justification and for discriminatory reasons. Non-party Dimitrios Fatouros has moved to join the action. Facebook opposes that motion and has moved to transfer this action pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the Northern District of California. In the alternative, Facebook moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the action for failure to state a claim for which relief can be granted or, in the alternative, for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). For the following reasons, Facebook’s motion to transfer is granted and this case is transferred to the Northern District of California.

BACKGROUND

The following facts are taken from Fteja’s complaint and from his opposition to Facebook’s motion.

Fteja, a resident of Staten Island, New York, “was an active user of face-book.com.” (Compl. ¶¶ 1-3.) Fteja “ha[d] been adhering to [F]acebook[’s] terms of service” and “helping] build the [F]ace-book community by adding content and signing up new members.... ” (Id. ¶ 8,10.) But on September 24, 2010, Facebook allegedly disabled Fteja’s account on September 24, 2010 “without warning” and “without reason.” (Id. ¶ 4.)

As might be expected, given that “Face-book has become a very important means of communication,” being denied access to the world’s largest social networking site caused Fteja “harm in all his personal relationships and the ability to communicate____” (Id. ¶ 13.) Specifically, Fteja claims that the disabling of his account “hurt [his] feelings, emotionally distressed [him]” and “assaulted [his] good reputation among [his] friends and family....” (Pl.’s Opp’n ¶ 3.)

Fteja “has numerous times tried all channels to resolve this matter by procedures outlined on” the Facebook “website.” (Compl. ¶ 5.) However, Fteja alleges that these attempts “have been ignored” and that Facebook still “has not given any reason for the account being disabled.” (Id. ¶¶ 6, 7.) Fteja therefore surmises that Facebook “discriminated” against him “based on [his] religion and ethnicity,” specifically that he is a Muslim and his name is Mustafa. (Id. ¶ 14; Pl.’s Opp’n ¶ 3.)

On January 25, 2011, Fteja filed this action in New York Supreme Court in New York County. On February 9, 2011, Facebook removed the action to this Court pursuant to 28 U.S.C. § 1441(a) on the basis of diversity of citizenship: Fteja is a *832citizen of New York and Facebook is a Delaware corporation with its principle place of business in Palo Alto, California.

On April 4, 2011, Facebook moved [4] to transfer this action pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the Northern District of California. In the alternative, Facebook moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the action for failure to state a claim for which relief can be granted or, in the alternative, for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e).

On April 18, 2011, Fatouros, whom Fteja “did not know,” moved [12] pursuant to Federal Rule of Civil Procedure 20(a) to be joined as a plaintiff. Fatouros claims that Facebook disabled his account around the same time as it disabled Fteja’s because Fatouros had posted on his “wall” an editorial he had written for a Cypriot newspaper regarding politics in Northern Cyprus.1 (Fatouros Compl. ¶ 4.) Fteja consents to joining Fatouros but Facebook opposes the motion.

LEGAL STANDARD

“[F]ederal law, specifically 28 U.S.C. § 1404(a), governs the District Court’s decision whether to give effect to the parties’ forum-selection clause and transfer this case...." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). "A plaintiffs choice of forum `is entitled to significant consideration and will not be disturbed unless other factors weigh strongly in favor of transfer.’" Hershman v. UnumProvident Corp., 658 F.Supp.2d 598, 601 (S.D.N.Y. 2009) (quoting Royal & Sunalliance v. British Airways, 167 F.Supp.2d 573, 576 (S.D.N.Y.2001)). "The burden is on the moving party, here defendant], to make a clear and convincing showing that transfer is proper." Hershman, 658 F.Supp.2d at 600.

“The threshold question in deciding transfer of venue ... is whether the action could have been brought in the transferee forum.” Atl. Recording Corp. v. Project Playlist, Inc., 603 F.Supp.2d 690, 695 (S.D.N.Y.2009). If the answer is yes, under 28 U.S.C. § 1404(a) “[a] district court may exercise its discretion to transfer venue ‘for the convenience of parties and witnesses, in the interest of justice.’ ” N.Y. Marine and Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d Cir.2010) (quoting 28 U.S.C. § 1404(a)). “A motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors.” Stewart Org., Inc., 487 U.S. at 29, 108 S.Ct. 2239.

“Among the factors to be considered in determining whether to grant a motion to transfer venue are, inter alia: (1) the plaintiffs choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, and (7) the relative means of the parties.” N.Y. Marine and Gen. Ins. Co., 599 F.3d at 112. The convenience of the forum for witnesses “is probably considered the single most important factor in the analysis of whether a transfer should be granted.” Hershman, 658 F.Supp.2d at 602 (quoting Schnabel v. Ramsey Quantitative Sys., Inc., 322 F.Supp.2d 505, 516 (S.D.N.Y. *8332004)). In addition, because a court’s discretion to transfer an action “must be exercised at the very outset of the case, when relatively little is known about how the case will develop, courts have typically accorded substantial weight to the ... plaintiffs choice of forum.” Atl. Recording Corp., 603 F.Supp.2d at 695.

“The presence of a forum-selection clause ... will [also] be a significant factor that figures centrally in the district court’s calculus.” Stewart Org., Inc., 487 U.S. at 29, 108 S.Ct. 2239. And “[t]he general rule is that forum selection clauses are regularly enforced.” Elite Parfums, Ltd. v. Rivera, 872 F.Supp. 1269, 1271 (S.D.N.Y.1995). Indeed, “contractual forum-selection clauses will be enforced unless it can clearly be shown that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Bense v. Interstate Battery Sys. of Am., Inc., 683 F.2d 718, 721-22 (2d Cir.1982).

In this Circuit, whether to enforce “a forum selection clause involves a four-part analysis.” Phillips v. Audio Active Ltd., 494 F.3d 378, 383 (2d Cir.2007). “The first inquiry is whether the clause was reasonably communicated to the party resisting enforcement.” Id. “The second step requires [the court] to classify the clause as mandatory or permissive, i.e., to decide whether the parties are required to bring any dispute to the designated forum or simply permitted to do so.” Id. “Part three asks whether the claims and parties involved in the suit are subject to the forum selection clause.” Id. “If the forum clause was communicated to the resisting party, has mandatory force and covers the claims and parties involved in the dispute, it is presumptively enforceable.” Id.

“[O]nce a mandatory choice of forum clause is deemed valid, the burden shifts to the plaintiff to demonstrate exceptional facts explaining why he should be relieved from his contractual duty.” Weiss v. Columbia Pictures Television, Inc., 801 F.Supp. 1276, 1278 (S.D.N.Y.1992). Hence “[t]he fourth, and final, step is to ascertain whether the resisting party has rebutted the presumption of enforceability by making a sufficiently strong showing that ‘enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.’ ” Phillips, 494 F.3d at 383 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). That is a question of federal law. See Phillips, 494 F.3d at 384 (“Despite the presumptive validity of choice of law clauses, our precedent indicates that federal law should be used to determine whether an otherwise mandatory and applicable forum clause is enforceable under ... step four in our analysis.”).

DISCUSSION

The Court first considers "whether the action could have been brought in the transferee forum," here the Northern District of California.. Atl. Recording Corp., 603 F.Supp.2d at 695. That requires the Court to determine whether the Northern District of California would be a proper venue for this action and whether it would have jurisdiction over this action and over Facebook. See Unlimited Care, Inc. v. Visiting Nurse Ass’n of E. Mass., Inc., 42 F.Supp.2d 327, 333 (S.D.N.Y.1999) ("A court electing to transfer an action, may only transfer such action `to a district where it might have been brought initially,’ (i.e., a district where defendant is subject to personal jurisdiction and venue would be proper)." (quoting Volkswagen De Mexico, S.A. v. Germanischer Lloyd, 768 F.Supp. 1023, 1028 (S.D.N.Y.1991)).

*834The Northern District of California would be a proper venue for this action. Venue is proper, inter alia, in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred....” 28 U.S.C. § 1391(a)(2). The Northern District of California would be such a district in this action because the nub of Fteja’s claim is that Facebook wrongfully disabled his account and the employees responsible for disabling accounts work at Facebook’s headquarters in Palo Alto, California which is in the Northern District of California.

The Northern District of California would have subject matter jurisdiction over this action on the basis of the parties’ diversity of citizenship. And that court would have personal jurisdiction over Facebook because the presence of Facebook’s headquarters in Palo Alto suggests that Facebook has had "continuous and systematic general business contacts" with California. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir.1996). See also Tuttle v. Sky Bell Asset Mgmt., LLC, No. C 10-03588, 2011 WL 1362124, at *6 (N.D.Cal. Apr. 11, 2011) ("Given that plaintiffs submit seemingly reliable documents to support their contention that Sky Bell’s principal place of business is in California... plaintiffs have made a sufficient prima facie showing of general jurisdiction over defendant Sky Bell").

The next question, then, is whether Facebook has made a “clear and convincing showing that transfer is proper,” Hershman, 658 F.Supp.2d at 600, that is, that transfer will advance “the convenience of parties and witnesses” as well as “the interest of justice.’ ” N.Y. Marine and Gen. Ins. Co., 599 F.3d at 112.

On that score, the parties devote substantial attention to the forum selection clause contained in the terms and conditions that govern Facebook users’ accounts, known as the Terms of Use at the time that Fteja signed up for an account. (Dec. of A. Yang (“Yang Dec.”), Mar. 31, 2011, ¶ 6 & Ex. A.) That clause provides as follows:

You will resolve any claim, cause of action or dispute (“claim”) you have with us arising out of or relating to this Statement or Facebook exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.

(Yang Dec. Ex. B ¶ 15(1).)

As an initial matter, Fteja argues that “[tjhere is no proof that [he] agreed to a forum selection clause” and that he does “not remember agreeing to [the] forum selection clause or agreeing to any Face-book agreement.” (Pl.’s Opp’n ¶ 1.) Impossible, says Facebook: “a putative Facebook user cannot become an actual Facebook user unless and until they have clicked through the registration page where they acknowledge they have read and agreed to Facebook’s terms of use.... ” (Dec. of D. Willner, May 17, 2011, ¶ 2.)

As a matter of logic, Facebook appears to be correct. Declarations filed by Face-book employees, screenshots submitted by Fatouros, and Facebook’s current website of which the Court takes judicial notice suggest that the Facebook sign-up process works as follows. A putative user is asked to fill out several fields containing personal and contact information. See http://www. facebook.com. The putative user is then asked to click a button that reads “Sign Up.” After clicking this initial “Sign Up” *835button, the user proceeds to a page entitled “Security Check” that requires a user to reenter a series of letters and numbers displayed on the page. Below the box where the putative user enters that letter-number combination, the page displays a second “Sign Up” button similar to the button the putative user clicked on the initial page. The following sentence appears immediately below that button: “By clicking Sign Up, you are indicating that you have read and agree to the Terms of Service.” The phrase “Terms of Service” is underlined, an indication that the phrase is a hyperlink, a phrase that is “usually highlighted or underlined” and “sends users who click on it directly to a new location—usually an internet address or a program of some sort.” United States v. Hair, 178 Fed.Appx. 879, 882 n. 3 (11th Cir.2006).

In order to have obtained a Faeebook account, Fteja must have clicked the second “Sign Up” button. Accordingly, if the phrase that appears below that button is given effect, when Fteja clicked “Sign Up,” he “indieat[ed] that [he] ha[d] read and agree[d] to the Terms of Policy.”

However, “[w]hile new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir.2004). And one such principle is that “[m]utual manifestation of assent, whether by written or spoken word or by conduct, is the touchstone of contract.” Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 29 (2d Cir.2002). Hence the threshold requirement that the forum selection “clause was reasonably communicated to the party resisting enforcement.” Phillips, 494 F.3d at 383.

In that regard, the Second Circuit has held that “a consumer’s clicking on a ... button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the ... button would signify assent to those terms.” Specht, 306 F.3d at 29-30. In Specht, the Second Circuit declined to enforce an arbitration clause to which a user purportedly agreed when he clicked on a button to download software. The terms and conditions were not visible anywhere on the screen containing the download button. Rather, “[t]he sole reference to” the terms and conditions “was located in text that would have become visible to plaintiffs only if they had scrolled down to the next screen where there was the following sentence: ‘Please review and agree to the terms of the Netscape SmartDownload software licensing agreement before downloading and using the software.’ ” Id. (emphasis in original). The just italicized language appeared underlined and if a user “clicked on the underlined invitation to review and agree to the terms, a hypertext link would have taken the user to a separate webpage entitled ‘License & Support Agreements.’” Id. at 23-24. That page included the arbitration clause. See id. at 24. “[I]n circumstances such as these, where consumers are urged to download free software at the immediate click of a button,” the Court of Appeals held that “a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.” Id. at 32.

Specht does not squarely control this case because the second Sign-Up page’s reference to the Terms of Use appeared immediately below the “Sign-Up” button. Yet this case does have something in common with Specht the fact that the terms and conditions were not displayed on the page where the user purportedly assented to the terms. Instead, those terms were visible only by clicking on a hyperlink. The Terms of Use therefore appear to be a *836kind of so-called “browsewrap” agreement, “where website terms and conditions of use are posted on the website typically as a hyperlink at the bottom of the screen.” Hines v. Overstock.com, Inc., 668 F.Supp.2d 362, 366 (E.D.N.Y.2009). Cf. Pollstar v. Gigmania Ltd,., 170 F.Supp.2d 974, 981 (E.D.Cal.2000) (“[A] browse wrap license is part of the web site and the user assents to the contract when the user visits the web site”).

Several courts have enforced browsewrap agreements. See, e.g., Ticketmaster L.L.C. v. RMG Technologies, Inc., 507 F.Supp.2d 1096, 1107 (C.D.Cal.2007) (plaintiff was "highly likely to succeed in showing that Defendant received notice of the Terms of Use and assented to them by actually using the website" where site displayed a warning that "Use of this website is subject to express Terms of Use" and "[t]he underlined phrase `Terms of Use’ is a hyperlink to the full Terms of Use"); Sw. Airlines Co. v. BoardFirst, L.L.C., No. 3:06-CV-0891-B, 2007 WL 4823761, at *4 (N.D.Tex. Sept. 12, 2007); Cairo, Inc. v. Crossmedia Servs., Inc., No. C 04-04825, 2005 WL 766610, at *5 (N.D.Cal. Apr. 1, 2005); Ticketmaster Corp. v. Tickets.com, Inc., No. CV 997654, 2003 WL 21406289, at *2 (C.D.Cal. Mar. 7, 2003). Cf. Pollstar v. Gigmania, Ltd., 170 F.Supp.2d 974, 982 (E.D.Cal.2000) (noting that "the browser wrap license agreement may be arguably valid and enforceable.").

However, several of these cases appear to have turned on the user’s constructive knowledge of the hyperlinked terms. See Sw. Airlines Co., 2007 WL 4823761, at *4; Cairo, Inc., 2005 WL 766610, at *5. Indeed, “[m]ost courts which have considered the issue ... have held that in order to state a plausible claim for relief based upon a browsewrap agreement, the website user must have had actual or constructive knowledge of the site’s terms and conditions, and have manifested assent to them.” Cvent, Inc. v. Eventbrite, Inc., 739 F.Supp.2d 927, 937-38 (E.D.Va.2010). And at least one court has declined to enforce terms and conditions that “only appealed] on [a] website via a link buried at the bottom of the first page” where users “are not required to click on that link, nor are they required to read or assent to the Terms of Use in order to use the website or access any of its content.” Id.

Moreover, the cases in which courts have enforced browsewrap agreements have involved users who are businesses rather than, as in Specht and in this ease, consumers. Cf. Lemley, Terms of Use, 91 Minn. L.Rev. 459, 472 (2006) (“An examination of the cases that have considered browsewraps in the last five years demonstrates that the courts have been willing to enforce terms of use against corporations, but have not been willing to do so against individuals.”). Indeed, one prominent commentator has hypothesized that “[cjourts may be willing to overlook the utter absence of assent only when there are reasons to believe that the [allegedly assenting party] is aware of the [other party’s] terms.” Id. at 477. And based on the reasonable supposition that such “awareness may be more likely with corporations than individuals, perhaps because corporations are repeat players,” that commentator has argued “that if courts enforce browsewraps at all, enforcement should be limited to the context in which it has so far occurred—against sophisticated commercial entities who are repeat players.” Id. at 464, 477.

On the other hand, it is not clear that these countervailing considerations apply to Facebook’s Terms of Use. First, Fteja’s allegation that he complied with the Terms of Use suggests that he had constructive knowledge of the Terms of Use, though it *837is not clear from the complaint when he acquired that knowledge and he denies that he read the terms before signing up for his Facebook account.

Second, the Terms of Use were not exactly a true browsewrap license “in which the user does not see the contract at all but in which the license terms provide that using a Web site constitutes agreement to a contract whether the user knows it or not.” Lemley, Terms of Use, 91 Minn. L. Rev. at 460. Indeed, in a pure-form browsewrap agreement, “the website will contain a notice that—by merely using the services of, obtaining information from, or initiating applications within the website— the user is agreeing to and is bound by the site’s terms of service.” United States v. Drew, 259 F.R.D. 449, 462 n. 22 (C.D.Cal. 2009); see also BoardFirst, 2007 WL 4823761, at *4 (“Browsewraps may take various forms but typically they involve a situation where a notice on a website conditions use of the site upon compliance with certain terms or conditions, which may be included on the same page as the notice or accessible via a hyperlink.”). In other words, a browsewrap agreement usually involves a disclaimer that by visiting the website—something that the user has already done—the user agrees to the Terms of Use not listed on the site itself but available only by clicking a hyperlink. Here, by contrast, the second Sign-Up page indicated that additional action beyond merely visiting that page, namely, clicking “Sign-Up,” would manifest agreement to the Terms of Use.

In that sense, Facebook’s Terms of Use have something in common with so-called “clickwrap” licenses, “in which an online user clicks T agree’ to standard form terms.... ” Lemley, Terms of Use, 91 Minn. L.Rev. 459. Cf. Drew, 259 F.R.D. at 462 n. 22 (“Clickwrap agreements require a user to affirmatively click a box on the website acknowledging awareness of and agreement to the terms of service before he or she is allowed to proceed with further utilization of the website.”). A click-wrap agreement “presents the potential licensee (i.e., the end-user) with a message on his or her computer screen, requiring that the user manifest his or her assent to the terms of the license agreement by clicking on an icon.” Register.com, 356 F.3d at 429.

“Because the user has `signed’ the contract by clicking `I agree,’" even commentators who have called for limits on browsewrap agreements find "nothing inherently troubling about enforcing clickwrap licenses." Lemley, Terms of Use, 91 Minn. L.Rev. at 466. And the courts appear to share that view, for [c]lickwrap agreements "have been routinely upheld by circuit and district courts." Drew, 259 F.R.D. at 462 n. 22. Indeed, numerous courts, including a number of courts in this Circuit, have enforced forum selection clauses in clickwrap agreements. See, e.g., Segal v. Amazon.com, Inc., 763 F.Supp.2d 1367 (S.D.Fla.2011); Meier v. Midwest Recreational Clearinghouse, LLC, No. 2:10-cv-01026, 2010 WL 2738921 (E.D.Cal. July 12, 2010); Trade-Comet.com LLC v. Google, Inc., 693 F.Supp.2d 370, 377-78 (S.D.N.Y.2010); Beard v. PayPal Inc., 2010 WL 654390 (D.Or. Feb. 19, 2010) (transferring case to Northern District of California); Brodsky v. Match.com LLC, No. 09 Civ. 5328, 2009 WL 3490277 (S.D.N.Y.2009); Feldman v. Google, Inc., 513 F.Supp.2d 229, 237 (E.D.Pa.2007); Person v. Google Inc., 456 F.Supp.2d 488, 496-97 (S.D.N.Y.2006); Novak v. Overture Servs., Inc., 309 F.Supp.2d 446, 451 (E.D.N.Y.2004).

Yet Facebook’s Terms of Use are not a pure-form clickwrap agreement, either. While the Terms of Use require the user to click on "Sign Up" to assent, they do *838not contain any mechanism that forces the user to actually examine the terms before assenting. By contrast, in assenting to a clickwrap agreement, "users typically click an `I agree’ box after being presented with a list of terms and conditions of use ..." Hines, 668 F.Supp.2d at 366 (emphasis added). That aspect of a clickwrap agreement ensures that "potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product." Register.com, 356 F.3d at 429.

Courts have not overlooked this feature. For example, the Second Circuit in Specht found a "signal difference" between the software for which the defendant supplied only hyperlinked terms and other software for which users "were automatically shown a scrollable text of that program’s license agreement and were not permitted to complete the installation until they had clicked on a `Yes’ button to indicate that they accepted all the license terms." Specht, 306 F.3d at 22-23. In addition, another court has interpreted the clickwrap case law for the proposition that, "[a]s a rule, a clickwrap is valid where the terms of the agreement appear on the same screen with the button the user must click to accept the terms and proceed with the installation of the product." Grosvenor v. Qwest Commc’ns Int’l, Inc., No. 09-cv-2848, 2010 WL 3906253, at *2 (D.Colo. Sept. 30, 2010) (declining to enforce arbitration clause in clickwrap agreement where terms did not appear on the same page as the "Yes" box). And many of the decisions from this district support that reading. Compare, e.g., TradeComet.com LLC, 693 F.Supp.2d at 377-78 ("Google offers testimony and screenshots showing the status of Trade-Comet’s AdWords accounts to support its contention that TradeComet accepted the August 2006 Agreement and that it had to click through the text of that agreement to do so."), and Feldman, 513 F.Supp.2d at 237 ("[T]he AdWords Agreement gave reasonable notice of its terms. In order to activate an AdWords account, the user had to visit a webpage which displayed the Agreement in a scrollable text box."), and Person, 456 F.Supp.2d at 497 ("By clicking on a link, a user is taken to the agreement before assenting to its terms."); and Novak, 309 F.Supp.2d at 451 ("Prior to registration for access to the Google discussion groups, Plaintiff must accept the `Terms and Conditions of Use for Google Groups.’ On this page is a window for viewing the `terms and conditions’ contract and a button to indicate acceptance of the terms contained therein.") (internal citation omitted).

Thus Facebook’s Terms of Use are somewhat like a browsewrap agreement in that the terms are only visible via a hyperlink, but also somewhat like a clickwrap agreement in that the user must do something else—click “Sign Up”—to assent to the hyperlinked terms. Yet, unlike some clickwrap agreements, the user can click to assent whether or not the user has been presented with the terms.

What result follows? Have terms been reasonably communicated where a consumer must take further action not only, as in a clickwrap agreement, to assent to the terms but also, as in a browsewrap agreement, to view them? Is it enough that Facebook warns its users that they will accept terms if they click a button while providing the opportunity to view the terms by first clicking on a hyperlink?

In answering that question, it is tempting to infer from the power with which the social network has revolutionized how we interact that Facebook has done the same to the law of contract that has been so critical to managing that interaction in a free society. But not even Facebook is so *839powerful. As the Second Circuit has reminded us, “[w]hile new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract.” Register.com, 356 F.3d at 403. To make that point, the Court of Appeals has used a rather simple analogy. “The situation might be compared to one in which” Face-book “maintains a roadside fruit stand displaying bins of apples.” Id. at 401. For purposes of this case, suppose that above the bins of apples are signs that say, “By picking up this apple, you consent to the terms of sales by this fruit stand. For those terms, turn over this sign.”

In those circumstances, courts have not hesitated in applying the terms against the purchaser. Indeed, in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 587, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), the Supreme Court upheld a forum selection clause in fíne print on the back of a cruise ticket even though the clause became binding at the time of purchase, and the purchasers only received the ticket some time later. See id. In other words, the purchasers were already bound by terms by the time they were warned to read them. Similarly, in Effron v. Sun Line Cruises, Inc., 67 F.3d 7 (2d Cir.1995), the plaintiffs booked a vacation through Sun Life based on promotional materials that “carried the following message under the sub-heading ‘Responsibility’

The transportation of passengers and baggage on the Stella Solaris ... is governed by the terms and conditions printed on the Passenger Ticket Contract which may be inspected at any Sun Line office. Passenger’s acceptance of that ticket constitutes agreement to those terms and conditions.

Id. at 8. On the Passenger Ticket Contract, “[t]he warning ‘IMPORTANT NOTICE-READ BEFORE ACCEPTING’ [wa]s found in bold, capitalized, medium-sized lettering” and “[i]mmediately below the warning, in somewhat smaller print, the ticket purchaser’s attention [wa]s directed specifically to the contract clause that limits choice of forum.” Id. The Second Circuit held that the forum selection clause contained on the Passenger Ticket Contract bound the plaintiffs when they accepted their tickets even though they had been referred to those terms rather than shown them. See id. at 11.

There is no reason why that outcome should be different because Facebook’s Terms of Use appear on another screen rather than another sheet of paper. What is the difference between a hyperlink and a sign on a bin of apples saying “Turn Over for Terms” or a cruise ticket saying “SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES IMPORTANT! PLEASE READ CONTRACT-ON LAST PAGES 1, 2, 3”? Shute, 499 U.S. at 587, 111 S.Ct. 1522. The mechanics of the internet surely remain unfamiliar, even obtuse to many people. But it is not too much to expect that an internet user whose social networking was so prolific that losing Facebook access allegedly caused him mental anguish would understand that the hyperlinked phrase “Terms of Use” is really a sign that says “Click Here for Terms of Use.” So understood, at least for those to whom the internet is in an indispensable part of daily life, clicking the hyperlinked phrase is the twenty-first century equivalent of turning over the cruise ticket. In both cases, the consumer is prompted to examine terms of sale that are located somewhere else. Whether or not the consumer bothers to look is irrelevant. “Failure to read a contract before agreeing to its terms does not relieve a party of its obligations under the contract.” See Centrifugal Force, Inc. v. Softnet Commc’n Inc., No. 08 Civ. 5463, 2011 WL 744732, at *7 (S.D.N.Y. Mar. 1, 2011) *840(enforcing clickwrap agreement in breach of contract action). Here, Fteja was informed of the consequences of his assenting click and he was shown, immediately below, where to click to understand those consequences. That was enough.

Several other courts have reached a similar conclusion on similar facts. Hubbert v. Dell Corporation, 359 Ill.App.3d 976, 296 Ill.Dec. 258, 835 N.E.2d 113 (Ill.App.Ct. 2005) involved an arbitration clause contained in terms and conditions of an online sale. "To make their purchases, each of the plaintiffs completed online forms on five ... Web pages." Id., 296 Ill.Dec. 258, 835 N.E.2d at 118. On each of thos