[Stephen Maturin]

Originally Posted by seebs

The wording is pretty clear!

Well, I'll be dipped in shit! That same lingo appeared in the old Twitter TOS, and remains unchanged in X's TOS. One would think a "genius" might spot an issue here and massage the early part of that second sentence to make the issue go away.

It looks to me like the forum selection clause is fully enforceable. Just for lulz I did some checking and found multiple court orders holding that the language is mandatory in nature and enforceable. However, all those orders came in cases where Twitter was the defendant, including the federal court lawsuit PAB filed after Twitter kicked his fat ass off the platform.

The passive-voiced "All disputes related to these Terms or the Services will be brought solely in the federal or state courts located in San Francisco County, California, United States" does indeed appear to apply even when X is the plaintiff. I'm trying to figure how their lolyers plan to get around that. Maybe they'll contend that their dispute with Media Matters is insufficiently "related to these Terms or the Services" to trigger the forum selection clause in the first place. Maybe they'll rely on the rule that requires contract lingo to be interpreted and applied as an integrated whole, such that the waivers relating to personal jurisdiction, venue, forum non conveniens, and class actions - all of which apply to the user ("you") only - establish that the forum selection clause applies to users only. That idea finds some support in the first sentence of the following paragraph, "If you are a federal, state, or local government entity in the United States using the Services in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you." X's lolyers, assuming they aren't Rudy 9iu11iani-level booze addled morons, have surely considered this shit. It'll be interesting to see how they respond to Media Matter's motion to transfer.

The first sentence is a choice-of-law clause. Ups to the lolyer who put in "excluding its choice of law provisions." If you really and for true want a particular state's substantive law to control, that lingo is a must. If all you say is "California law governs," then some smartass will try to renvoi your ass by saying "California law" refers to the whole law of that state, including its choice-of-law rules. If Cali COL rules provide that issues of contract performance are governed by the law of the place where performance is to occur, and performance in this case is to occur in, say, New Mexico, some lolyer will come along and argue that the COL clause requires application of NM law. That's doesn't happen with the anti-renvoi language used in the quote.


Assuming Klaxon Co. v. Stenor Elec. is still the law, the federal court in Texas where X filed this train wreck (assuming it stays in that court) will have to apply the same substantive law to this case as a Texas state court would. Assuming Texas state courts honor contractual choice-of-law provisions, and I have yet to hear of any state that categorically refuses to honor them, the TX federal court would likely have to apply CA law.

The complaint includes common law tort claims that (I think) every state recognize - tortious interference with contracts, disparagement/defamation, and tortious interference with prospective business opportunities - but it seems to me that the broadly-worded COL clause opens the door to applying California's anti-SLAPP legislation.