There will be no justice in Texas for a Houston man who wants 1-800-Flowers to pay for the anguish it allegedly caused him by providing proof of an extramarital affair to his wife, a federal judge has ruled.

Granting a motion to dismiss Leroy Greer's unusual breach of contract case, U.S. District Judge Nancy F. Atlas said the Terms of Use that apply to those who access 1-800-Flowers.com required the case to be filed in New York -– even though Greer ordered a dozen red roses for his girlfriend over the telephone, not through the website.

The Terms of Use include a forum selection clause under which New York courts are the exclusive venue for “all claims and disputes arising under the Terms of Use or in connection with this Web Site.” 1-800-Flowers is based on Long Island, N.Y.

Greer argued that enforcement of the forum selection clause would be “unfair and outside of good business practice specifically when related to a purchase of nominal gifts such as flowers versus an oil-related overseas transaction[ ].”

But Atlas found the clause applies to Greer because he accessed the 1-800-Flowers privacy policy online after being referred to it by a customer service agent and the privacy policy is part of the Terms of Use.

“Accessing the website constitutes the agreement to be bound by the Terms of Use, including its forum selection clause,” she said in her ruling.

Greer sued 1-800-Flowers in August, claiming the company breached its privacy policy by sending a card to his home address thanking him for his purchase and then, after his wife saw the card, faxing her a copy of his order. “Defendants' misrepresentation [of privacy] damaged Plaintiff by leading to a contested divorce with his wife,” the complaint alleges.

Atlas's decision may seem somewhat unfair since Greer's use of 1-800-Flowers.com was only incidental to his telephone contact with the sales agent.

“The Privacy Policy that refers to the Terms of Use Policy for 1-800-FLOWERS.com customers is only applicable and actionable in this instance because defendant directed Leroy Greer to the online policy as an assurance that 1-800-FLOWERS 'recognizes and respects the importance of maintaining the privacy of our customers ... and established this Privacy Policy as a result,'” he said in his opposition to the motion to dismiss.

But if Greer had not been directed to the privacy policy, he would not have a case -– however flimsy -- in the first place. So there's an element of sophistry in his argument that he should not be bound by the forum selection clause in that same contract.

Greer's attorney, Kennitra Foote, said she disagreed with the ruling, but "we will not be appealing. Instead, we have decided that New York is probably the better venue for this case so we will be filing there in the next couple of weeks."

By Matthew Heller
10/13/07