eBay User Agreement Upheld, Part II–Durick v. eBay

By Eric Goldman

Durick v. eBay, 2006 WL 2672795 (Oho Ct. App. Sept. 11, 2006)

I didn’t anticipate this being eBay Law Week, but these issues often seem to arise in cycles. Yesterday I blogged on the Nazaruk case, which upheld eBay’s forum selection clause. In that post, I claimed that the Nazaruk case was, to my knowledge, the only currently published opinion upholding eBay’s user agreement.

It turns out that a few days before the Nazaruk case, an Ohio appellate court upheld the eBay user agreement. Not only that, Durick was issued by an appellate court, making it the only currently binding precedent that eBay’s user agreement is enforceable.

In the Durick case, the plaintiff tried to sell various bottles, in some cases containing prescription drugs or hazardous materials that putatively violated eBay’s user agreement. eBay issued 12 warnings to plaintiff over 2 years and then finally suspended his account. Instead of seeking reinstatement, the plaintiff ran to the courthouse, claiming that eBay was in breach of contract by suspending him because his auction items didn’t violate the user agreement.

The court dispenses with this lawsuit pretty efficiently. It says that there was a binding contract, the plaintiff violated the contract and therefore eBay wasn’t in breach of its contract. SJ for eBay.

Two interesting tidbits:

1) The court says: “The language contained in appellee’s user agreement is clear and easily understandable.” eBay will happily cite this sentence in future opinions!

2) eBay’s user agreement has a lengthy list of documents incorporated by reference, including its “Prohibited, Questionable & Infringing Item Policy,” which in turn contains sub-documents incorporated by reference, including its “Prescription Drugs” policy and its “Hazardous, Restricted, and Perishable Items” policy. Thus, for the plaintiff to see the applicable restrictions, he had to scroll down the lengthy eBay user agreement, choose from a variety of referenced links, and click at least two pages down. The court doesn’t seem to care at all about this user interaction process, treating the distantly incorporated terms as an integral and enforceable part of the agreement.

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