American Online, Inc. v. Superior Court, 108 Cal.Rptr.2d 699 (2001) 90 Cal.App.

4th 1 Facts: A class action was filed by Mendoza for himself and others against AOL. The complaint alleges that the real parties are formers subscribers to AOLs Internet Service who, over the past four years, paid between $5 and $22 each month for the service. Monthly payments were made by allowing AOL to debit automatically the credit cards of class members. The class members terminated their subscriptions to AOL but without authorization, AOL continued to debit their credit cards for monthly service fees. Mendoza individually alleged that he gave AOL notice of the cancellation of his subscription in October 1999, but AOL continued to charge monthly fees against his credit card at least through February 2000, at which time Mendoza cancelled his credit card in order to stop the debits. AOL filed a motion to stay or dismiss the action on the ground of inconvenient forum. The motion was based on the forum selection clause contained in the Terms of Service (TOS) agreement entered into between Mendoza and AOL at the time he subscribed to AOLs Internet Service designating Virginia as the chosen forum and requiring that Virginia law be applied to any dispute. AOL contended the forum selection clause was presumptively valid under California law, was a rational, voluntary and conscionable choice and that its enforcement would not violate any strong public policy of the state. Mendoza claimed that the TOS was an unconscionable adhesion contract and further contended that TOS was unreasonable because it necessarily required him and the putative class members to relinquish legal rights in derogation of California public policy. The court denied AOLs motion. Hence, this appeal. Issue: Should the forum selection clause be enforced? Ruling: No. The forum selection clause should not be enforced. California public policy will be violated because the rights of California consumers would be significantly impaired. Mendoza and the class seeks class action relief under the California Consumers Legal Remedies Act (CLRA). This act contains a provision that voids any purported waiver of rights under the CLRA as being contrary to California public policy.

Enforcement of the contractual forum selection and choice of law clauses would be the functional equivalent of a contractual waiver of the consumers protection under the CLRA and is thus prohibited under California law. These clauses were also unenforceable because plaintiffs' rights would be substantially diminished if they were required to litigate their dispute in Virginia, given that Virginia law did not allow consumer lawsuits to be brought as class actions and the available remedies were more limited than those afforded by California law. In re Estate of Ferdinand Marcos, 1994 U.S. App Lexis 14796 (9th Circ. 1994) Facts: During the Marcos tenure as President of the Philippines, up to 10,000 people were allegedly tortured, summarily executed, or disappeared at the hands of military intelligence personnel acting pursuant to martial law declared in 1971. In 1986, Marcos and family fled to Hawaii in February, 1986. A number of lawsuits were thereafter filed against Marcos, Ver and Imee Marcos-Manotoc claiming that the plaintiffs had been arrested and tortured or their families. The case was certified as a class action in 1981 and a consolidated amended complaint naming the Estate as a defendant was filed on behalf of the class. In 1991, Imee Marcos moved to dismiss for lack of jurisdiction over the subject matter under the Alien Tort Act and immunity under the Foreign Sovereign Immunities Act (FSIA). The motions were denied and judgment was entered against Marcos-Manotoc. On November 1991, the plaintiffs moved for a preliminary injunction to prevent the estate from transferring or secreting in order to preserve the possibility of collecting a judgment, which was granted. Pending interlocutory appeal of the injunction, trial on liability proceeded. The jury rendered in favor of the plaintiff and of the class. The preliminary injunction was modified to set forth the jury verdict on liability and among others, to compel the legal representatives of the Estate to fully and completely answer plaintiffs interrogatories regarding the assets of the estate. ISSUE: Does the US district court (of Hawaii) have subject matter jurisdiction under the FSIA and Alien Tort Act?

RULING: Yes, the court acquired proper jurisdiction over the case filed by the plaintiffs against the estate of Marcos. 1. The Court has held that FSIA does not immunize a foreign official engaged in acts beyond the scope of his authority. Marcos acts of torture, execution and disappearance were clearly acts outside of his authority as President. 2. The instant action brought for torts committed by military intelligence officials through torture prohibited by the law of nations is within the jurisdiction grant of the Alien Torture Act U.S.C. S 1350 which provides: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. Section 1350 only mandates that a violation of the law of nations in order to create a cause of action. 3. Actionable violations of international law must be of a norm that is specific, universal and obligatory. The allegations in this case satisfy the said standard. The right to be free from torture is fundamental and universal. 4. The district court acted correctly in preliminary enjoining the Estate from transferring, secreting or dissipating the Estates assets pendent lite.