Cheryll Dougherty, et al. v. Zynga Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHERYLL DOUGHERTY, et al., Case No. 25-cv-04051-SI

8 Plaintiffs, ORDER GRANTING MOTION TO 9 v. TRANSFER VENUE

10 ZYNGA INC., Re: Dkt. Nos. 37, 38, 39 11 Defendant.

12 13 Now pending before the Court are multiple motions by defendant Zynga, Inc. in this 14 proposed class action case alleging violations of California consumer law and the federal Video 15 Privacy Protection Act. The Court has received briefing from both sides, including supplemental 16 briefing that the Court ordered plaintiffs provide on the question of transfer of venue. Pursuant to 17 Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument. 18 Because this Order grants defendant’s motion to transfer venue to the Southern District of New 19 York, the Court does not reach defendant’s motions to dismiss or to stay discovery and does not 20 reach plaintiffs’ arguments regarding the enforceability of the arbitration agreement. 21 22 BACKGROUND 23 Plaintiffs Cheryll Dougherty, Delia Camargo, and Lawrence Garcia are current or former 24 California residents who previously and/or currently play(ed) Toon Blast and/or Toy Blast (“the 25 Games”), two nearly identical mobile games published by defendant Zynga, Inc. Dkt. No. 33 26 (“FAC”) ¶¶ 2, 12-14. The Games are “tile matching” games where players progress through levels 27 by selecting groups of similar tiles and clearing the board over a certain number of moves. Id. ¶¶ 30- 1 pressure players into making in-game purchases to continue playing or advance through the Games’ 2 levels.” Id. ¶ 3. Plaintiffs allege that “the Games bring Zynga revenue of more than $1 million per 3 day and have brought in more than $1 billion since their launch.” Id. ¶ 8. 4 Peak Games, based in Istanbul, Turkey, created Toy Blast in 2015 and Toon Blast in 2017. 5 Dkt. No. 37-1 (“Ungberg Decl.”) ¶ 5. Defendant Zynga acquired Peak in July 2020, and Take-Two 6 Interactive Software, Inc. (“Take-Two”) acquired Zynga in May 2022. Id. According to defendant, 7 since 2018, the Games have published notices requiring all players to agree to the operative Terms 8 of Service in order to play the Games and to make in-app purchases. Id. ¶ 15. After Zynga acquired 9 Peak Games in July 2020, the Games continued using the Peak Games terms that were in effect in 10 2018.1 Id. ¶ 21. 11 On or around January 25, 2024, a pop-up notice informed the Games’ players that the terms 12 of service would be changing. Id. ¶ 28. On February 28, 2024, the Take-Two Terms took effect. 13 Id. ¶ 29. On or after February 28, 2024, a clickwrap pop-up notice required players to select 14 “ACCEPT,” accepting the 2024 Take-Two Terms before continuing into the Games. Id. Among 15 other things, the 2024 Take-Two Terms provide for individual arbitration with JAMS under the 16 JAMS Streamlined Arbitration Rules and Procedures and provide that “mass arbitration” will take 17 place with New Era ADR under the New Era Mass Arbitration Rules. Id. ¶¶ 33-34 & Ex. B 18 § 15.5(6), (9). The 2024 Take-Two Terms contain a class action/jury trial waiver. Id. § 15.5(2). 19 The 2024 Take-Two Terms also contain a provision on “Governing Law and Jurisdiction” 20 applicable to United States residents as follows:

21 This Agreement is entered into in the State of New York and shall be governed by, and construed under, the laws of the State of New York 22 without regard to conflict of law rules. Except as otherwise expressly set out in Section 15.5, the exclusive jurisdiction for all disputes 23 between you and Take-Two are the state and federal courts located in New York County, New York, and you and Take-Two each accept 24 personal jurisdiction and waive all objections to venue in such courts. 25 Id., Ex. B § 15.1. The 2024 Take-Two Terms allow a user to opt out of the Arbitration Agreement, 26 1 There is some dispute between the parties about the applicability of the Peak Games terms, 27 stemming from prior arbitration discussions among Take-Two, plaintiff Garcia, and others 1 upon notification to Take-Two in writing “within 30 days of the date that you first accept this 2 Agreement . . . .” Id., Ex. B § 15.5(3). 3 On or around February 28, 2025, Take-Two began implementing new terms of service. Id. 4 ¶ 38. On March 28, 2025, the 2025 Take-Two Terms went into effect. Id. ¶ 39. The 2025 Take- 5 Two Terms continue to provide for individual arbitration through JAMS but change the procedures 6 for mass arbitration. The 2025 Take-Two Terms increase the threshold for how many similar cases 7 must be filed before the mass arbitration procedures take effect and provide that any mass arbitration 8 will be conducted by JAMS rather than New Era. Id., Ex. C § 17.5(6). The 2025 Take-Two Terms 9 allow the user to opt out of the Arbitration Agreement by notifying Take-Two “in writing within 30 10 days of the date that you first accept this Agreement . . . .” Id., Ex. C § 17.5(3). The Terms provide, 11 “For clarity, if you accepted a previous version of the Arbitration Agreement and did not Opt Out, 12 your Opt-Out Notice will be limited to the materially updated terms of this version.” Id. The 2025 13 Take-Two Terms contain a “Governing Law and Jurisdiction” provision nearly identical to the one 14 contained in the 2024 Take-Two Terms. See id., Ex. C § 17.1 (“. . . the exclusive jurisdiction for 15 all claims or causes of action between you and Take-Two are the state and federal courts located in 16 New York County, New York, and you and Take-Two each accept personal jurisdiction and waive 17 all objections to venue in such courts”). 18 The plaintiffs in this case all accepted the 2024 Take-Two Terms and accepted but then opted 19 out of (or attempted to opt out of) the 2025 Take-Two Terms. Plaintiffs accepted the 2024 Take- 20 Two Terms via in-Game pop-ups. Ungberg Decl. ¶¶ 58 (Dougherty accepted terms via Toon Blast 21 on June 20, 2024), 62 (Camargo accepted terms via Toy Blast on April 23, 2024), 66 (Garcia 22 accepted terms via Toon Blast on November 21, 2024). Plaintiff Camargo accepted the 2025 Take- 23 Two Terms on April 18, 2025, and opted out of the 2025 Take-Two Terms on April 25, 2025. Id. 24 ¶¶ 62-63. Plaintiff Garcia accepted the 2025 Take-Two Terms on April 17, 2025, and provided two 25 signed opt-outs dated April 15 and April 25, 2025. Id. ¶¶ 64, 66. On April 21, 2025, plaintiff 26 Dougherty accepted the 2025 Take-Two Terms. Id. ¶ 58. The FAC states that Dougherty opted out 27 of the 2025 Take-Two Terms on April 17, 2025, and that she sent the opt-out via USPS mail to 1 2025. Ungberg Decl. ¶ 59. The parties dispute whether Dougherty validly opted out of the 2025 2 Take-Two Terms during the opt-out timeframe. 3 On May 9, 2025, plaintiffs filed this suit in federal court. Dkt. No. 1. On August 19, 2025, 4 plaintiffs amended the complaint. Dkt. No. 33. In the first amended complaint, plaintiffs allege that 5 Zynga engaged in deceptive business practices that manipulated players into spending large sums 6 of money on in-app purchases in the Games. Plaintiffs also allege that Zynga violated the federal 7 Video Privacy Protection Act (“VPPA”) “by willfully sharing and disclosing to third parties the 8 personal identifying information and video viewing histories of users of its many mobile games, 9 without first obtaining consent in the manner the VPPA requires.” Id. ¶ 10. Plaintiffs, as private 10 attorneys general and on behalf of similarly situated individuals, bring claims for violations of: (1) 11 California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.; (2) California’s False 12 Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq.; (3) the California Consumers Legal 13 Remedies Act, Cal. Civ. Code § 1750 et seq.; (4) fraud; (5) unjust enrichment; and (6) the Video 14 Privacy Protection Act, 18 U.S.C. § 2710. 15 Zynga has filed a motion to compel arbitration or alternatively to transfer venue, a motion 16 to dismiss, and a motion to stay discovery. Dkt. Nos. 37, 38, 39. In the motion to compel, Zynga 17 asks that the Court order plaintiffs to individual arbitration before JAMS or, alternatively, to transfer 18 this case to the U.S. District Court for the Southern District of New York, under 28 U.S.C. § 1404(a) 19 and § 1406(a). In opposing the motion to compel arbitration, plaintiffs argue that the arbitration 20 agreement is both procedurally and substantively unconscionable under California law. Plaintiffs 21 also oppose the request to transfer venue to New York, and the Court ordered and received 22 supplemental briefing from plaintiffs on this question. See Dkt. Nos. 48, 50. 23 24 LEGAL STANDARD 25 Where a party seeks to enforce a contractual forum-selection clause, “the clause may be 26 enforced through a motion to transfer under [28 U.S.C.] § 1404(a).” Atl. Marine Constr. Co. v. U.S. 27 Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 59 (2013). That statute provides, “For the convenience 1 any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). 2 The Supreme Court has held that, when a defendant files a motion to transfer under § 1404(a) 3 pursuant to a contractually valid forum-selection clause, “a district court should transfer the case 4 unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a 5 transfer.” Atl. Marine, 571 U.S. at 52, 62 n.5. However, “[a] contractual choice-of-forum clause 6 should be held unenforceable if enforcement would contravene a strong public policy of the forum 7 in which suit is brought, whether declared by statute or by judicial decision.” M/S Bremen v. Zapata 8 Off-Shore Co., 407 U.S. 1, 15 (1972); see also Gemini Techs., Inc. v. Smith & Wesson Corp., 931 9 F.3d 911, 916 (9th Cir. 2019) (clarifying “that satisfaction of Bremen’s public policy factor 10 continues to suffice to render a forum-selection clause unenforceable” after Atlantic Marine). 11 Forum selection clauses are presumptively valid and “the party seeking to avoid a forum selection 12 clause bears a ‘heavy burden’ to establish a ground upon which [the court] will conclude the clause 13 is unenforceable.” Doe 1 v. AOL LLC, 552 F.3d 1077, 1083 (9th Cir.2009) (quoting Bremen, 407 14 U.S. at 17); see also Atl. Marine, 571 U.S. at 63 (“the party defying the forum-selection clause . . . 15 bears the burden of establishing that transfer to the forum for which the parties bargained is 16 unwarranted”). 17 18 DISCUSSION 19 I. Contract Formation 20 To reach any of the substantive issues the parties raise—whether on the question of the 21 Terms’ venue or arbitration provisions—the Court first must be assured that a valid contract was 22 formed. See Caremark, LLC v. Chickasaw Nation, 43 F.4th 1021, 1030 (9th Cir. 2022) (before 23 reaching arguments challenging enforceability of arbitration agreement, “a court must resolve any 24 challenge that an agreement to arbitrate was never formed”); see also Trans-Tec Asia v. M/V 25 Harmony Container, 518 F.3d 1120, 1124 (9th Cir. 2008) (“[W]e cannot rely on the choice of law 26 provision until we have decided, as a matter of law, that such a provision was a valid contractual 27 term and was legitimately incorporated into the parties’ contract.”)). This point does not appear to 1 instance. 2 Defendant cites both California and New York law in its motion. See Dkt. No. 37 (“Mot.”) 3 at 12-13. Plaintiffs’ papers do not discuss the law applicable to contract formation but elsewhere 4 argue that California law applies. The Court need not choose between New York or California law 5 at this step because there is no meaningful difference between the two on the issue of contract 6 formation. “New York and California apply ‘substantially similar rules for determining whether the 7 parties have mutually assented to a contract term.’” Meyer v. Uber Techs., Inc., 868 F.3d 66, 74 (2d 8 Cir. 2017) (quoting Schnabel v. Trilegiant Corp., 697 F.3d 110, 119 (2d Cir. 2012)); see also 9 Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 855 (9th Cir. 2022) (quoting same). 10 “To form a contract under New York or California law, the parties must manifest their 11 mutual assent to the terms of the agreement.” Berman, 30 F.4th at 855 (citations omitted). In both 12 states, the “elemental principles of contract formation apply with equal force to contracts formed 13 online. Thus, if a website offers contractual terms to those who use the site, and a user engages in 14 conduct that manifests her acceptance of those terms, an enforceable agreement can be formed.” Id. 15 at 855-56. This includes what are commonly termed “‘clickwrap’ agreements, in which a website 16 presents users with specified contractual terms on a pop-up screen and users must check a box 17 explicitly stating ‘I agree’ in order to proceed.” Id. at 856 (citing Nguyen v. Barnes & Noble, Inc., 18 763 F.3d 1171, 1175-76 (9th Cir. 2014)). “[C]ourts have routinely found clickwrap agreements 19 enforceable.” Id. (citing Meyer, 868 F.3d at 75). 20 Here, Zynga employed a clickwrap agreement when implementing the 2024 and 2025 Take- 21 Two Terms. Ungberg Decl. ¶¶ 16-20, 28-29, 40; see also FAC ¶¶ 118-119. As noted above, 22 plaintiffs do not specifically challenge whether the parties formed a contract. The debate is which 23 terms of service apply to which plaintiffs. The party seeking to compel arbitration bears the burden 24 of proving the existence of a valid agreement to arbitrate by a preponderance of the evidence. See 25 Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014)). Defendant has shown, and 26 plaintiffs appear to be in agreement, that plaintiffs Camargo and Garcia accepted the 2024 Take- 27 Two Terms and timely opted out of the 2025 Take-Two Terms. Mot. at 9, 15; Dkt. No. 41 (“Opp’n”) 1 Plaintiff Dougherty accepted the 2025 Take-Two Terms on April 21, 2025. Ungberg Decl. 2 ¶ 58. She signed two opt-outs, dated April 17 and June 17, 2025. Id. ¶ 59; Dkt. No. 43 (“Janove 3 Decl.”) ¶ 8 & Ex. E. Defendant argues that her opt-outs were both too early and too late, because 4 neither was made “within 30 days of the date” that she accepted the 2025 Take-Two Terms. Dkt. 5 No. 44 (“Reply”) at 3. Dougherty contends that her opt-out was valid because she mailed the opt- 6 out notice on April 22, 2025. Opp’n at 18. Plaintiffs’ opposition brief contains a declaration from 7 Dougherty’s counsel stating that Dougherty’s opt-out notice was signed on April 17, 2025, but was 8 mailed to Take-Two Interactive Software, Inc. via USPS Certified Mail on April 22, 2025, i.e., one 9 day after she agreed to the 2025 Take-Two Terms. Janove Decl. ¶ 8. Zynga does not address this 10 point in its reply. 11 Given that this Order analyzes the validity of the forum selection clause, the Court need not 12 resolve the parties’ dispute as to whether plaintiff Dougherty validly opted out of the 2025 Take- 13 Two Terms. As noted above, the forum selection clauses as contained in the 2024 and 2025 Take- 14 Two Terms are nearly identical. Even assuming Dougherty validly opted out of the 2025 Take-Two 15 terms, she does not dispute that she would still be bound by the 2024 Take-Two Terms, as are her 16 co-plaintiffs Camargo and Garcia. 17 In sum, the Court finds that, under either New York or California law, the parties validly 18 formed a contract. Both the 2024 Take-Two Terms and the 2025 Take-Two Terms contain clauses 19 calling for venue in New York County, New York. See Ungberg Decl., Ex. B § 15.1 (2024 Terms), 20 Ex. C. § 17.1 (2025 Terms). 21 22 II. Forum Selection 23 The parties largely focus their arguments on the arbitration provisions contained in the 2024 24 and 2025 Take-Two Terms. Having reviewed the Terms, the parties’ briefs, and the governing law, 25 the Court concludes that the appropriate course is to grant defendant’s motion to transfer this case 26 to the venue provided for by the Terms’ forum selection clause. Resolving the arbitration dispute 27 may require reaching novel questions such as whether New York contract law would invalidate the 1 v. Live Nation Entertainment, Inc., 120 F.4th 670 (9th Cir. 2024). Such questions are best left to 2 the transferee court. 3 In its motion, defendant argues that this case should be transferred to the Southern District 4 of New York under the forum selection clause contained in the Take-Two Terms. Plaintiffs do not 5 argue that the forum selection clause itself is invalid but instead argues that the clause is 6 “inextricably bound up” with the clause calling for application of New York law and that, taken 7 together, enforcement of these provisions would contravene California public policy. Opp’n at 25 8 (quoting Lang v. Skytap, Inc., 347 F. Supp. 3d 420, 429 (N.D. Cal. 2018)). Plaintiffs argue that 9 application of New York law would effect a waiver of statutory remedies provided for by the 10 California Consumers Legal Remedies Act (“CLRA”), in violation of that statute’s anti-waiver 11 provisions. Id. (quoting Doe 1 v. AOL LLC, 552 F.3d 1077, 1083-84 (9th Cir. 2009)); see also Cal. 12 Civ. Code § 1751 (“Any waiver by a consumer of the provisions of this title [the CLRA] is contrary 13 to public policy and shall be unenforceable and void.”). 14 In arguing against transfer, plaintiffs make a number of suppositions. First, plaintiffs’ entire 15 argument is premised on the assumption that this Court must evaluate the forum selection and 16 choice-of-law provisions together. As Judge Orrick of this district has observed, “[c]ourts in the 17 Ninth Circuit have generally agreed that the choice-of-law analysis is irrelevant to determining if 18 the enforcement of a forum selection clause contravenes a strong public policy.” Rowen v. 19 Soundview Commc’ns, No. 14-cv-5530-WHO, 2015 WL 899294, at *4 (N.D. Cal. Mar. 2, 2015). 20 “Instead, absent a total foreclosure of remedy in the transferee forum, courts tether their policy 21 analysis to the forum selection clause itself, finding the forum selection clause unreasonable only 22 when it contravenes a policy specifically related to venue.” Id. (citing Jones v. GNC Franchising, 23 Inc., 211 F.3d 495, 497-98 (9th Cir. 2000); Monastiero v. appMobi, Inc., No. C 13-05711-SI, 2014 24 WL 1991564, at *6 (N.D. Cal. May 15, 2014)). In Jones, for instance, the Ninth Circuit held that 25 enforcement of a forum selection clause in a franchise agreement violated California’s public policy 26 because the California Business and Professions Code explicitly provided that any provision in such 27 an agreement restricting venue was void. Plaintiffs here forward no venue-specific argument, and 1 have found. See, e.g., Rowen, 2015 WL 899294, at *3-4 (“Because none of the public policies 2 identified are tethered to venue, plaintiffs’ arguments [against transfer] are unconvincing”); Wong 3 v. MLB Advanced Media, L.P., No. 24-cv-00779-LB, 2025 WL 2180445, at *3-4 (N.D. Cal. Jan. 4 22, 2025) (transferring venue of VPPA and CLRA claims to Southern District of New York where 5 “plaintiffs do not show a contravention of a policy related specifically to venue”); see also Franks 6 v. Sideprize LLC, No. 25-cv-4916-CRB, 2025 WL 3760381, at * 3 (N.D. Cal. Dec. 29, 2025) 7 (“courts in this District have effectuated forum selection clauses in CLRA cases despite the 8 existence of choice-of-law provisions”) (citations omitted). 9 Plaintiffs are correct that courts sometimes will consider the enforceability of a forum 10 selection clause in conjunction with a choice-of-law clause. See Dkt. No. 50 (“Pls.’ Suppl. Br.”) at 11 3 (citing Bayol v. Zipcar, Inc., No. 14-cv-2483-TEH, 2014 WL 4793935 (N.D. Cal. Sept. 25, 2014); 12 Sessions v. Prospect Funding Holdings LLC, No. CV 16-02620 SJO (DTBx), 2017 WL 7156283 13 (C.D. Cal. July 13, 2017)). In determining that it was appropriate to analyze the impact of the 14 forum selection and choice-of-law clauses together, both Bayol and Sessions cited to this Court’s 15 decision in Perry v. AT&T Mobility LLC, No. C 11-01488 SI, 2011 WL 4080625 (N.D. Cal. Sept. 16 12, 2011). See Bayol, 2014 WL 4793935, at *2; Sessions, 2017 WL 7156283, at *3. In Perry, this 17 Court considered how the forum selection and choice-of-law clauses operated in tandem, where the 18 plaintiff argued the “entire contract [was] for the purpose of evading California wage and hour 19 laws[.]” Perry, 2011 WL 4080625, at *4 n.4 (emphasis added); see also Sessions, 2017 WL 20 7156283, at *4 n.4 (plaintiff alleged the contract as a whole was “nothing more than a scheme to 21 avoid California’s usury laws”). But the same cannot be said here, nor have plaintiffs argued as 22 much. 23 Even considering the choice-of-law provision, it is not “inevitable” that there would be a 24 total foreclosure of remedy in the Southern District of New York. See Rowen, 2015 WL 899294, at 25 *4 n.2. Plaintiffs cite Doe 1 v. AOL LLC, 552 F.3d 1077 (9th Cir. 2009) (per curiam), in which the 26 Ninth Circuit found the district court improperly dismissed an action after misinterpreting a forum 27 selection clause to permit actions in either federal or state court in Virginia, rather than just state 1 selection clause at issue there, in part due to the lack of a consumer class action mechanism in 2 Virginia state courts. See id. at 1083-84. But “[n]othing in the New York forum precludes a class 3 action[,]” and plaintiffs here do not argue otherwise. See Wong, 2025 WL 2180445, at *4. Indeed, 4 plaintiffs do not argue with any specificity that application of New York law would leave them 5 without a remedy. “[S]o long as there is a remedy available in the transferee forum for the 6 defendant’s alleged conduct, the plaintiff cannot challenge a forum-selection clause based on a 7 public policy unrelated to venue, even if the remedy available in the transferee forum is not the same 8 as in the transferor forum.” Id. at *3 (citing Besag v. Custom Decorators, Inc., No. CV08-05463 9 JSW, 2009 WL 330934, at *3 (N.D. Cal. Feb. 10, 2009)). 10 Plaintiffs also argue that “[i]n the Southern District of New York, the choice of law analysis 11 would begin and end with the contract’s choice of law clause because ‘a New York choice-of-law 12 clause . . . obviates the application’ of any conflicts of law analysis. Pls.’ Suppl. Br. at 3 (quoting 13 Ministers & Missionaries Benefit Bd. v. Snow, 26 N.Y. 3d 466, 468 (2015)). They quote a district 14 court decision stating that, since the New York Court of Appeals decision in Ministers & 15 Missionaries, “New York federal and state ‘courts now refuse to consider the public policy of 16 foreign states—including California—to overturn an otherwise valid contractual choice of law 17 provision.’” See id. (quoting Pilon v. Discovery Comm’ns, LLC, 769 F. Supp. 3d 273, 294 (S.D.N.Y. 18 2025)). However, this is not entirely accurate. In 2020, the Second Circuit applied the pre-Ministers 19 & Missionaries choice-of-law standard, accounting for public policy considerations and whether the 20 selected forum State “has sufficient contacts with the transaction.” See United States v. Moseley, 21 980 F.3d 9, 20 (2d Cir. 2020) (citing Int’l Minerals & Res., S.A. v. Pappas, 96 F.3d 586, 592 (2d 22 Cir. 1996)). While courts have wondered whether Moseley applied the wrong standard, district 23 courts within New York have followed Moseley nonetheless, conducting a choice-of-law analysis 24 by examining whether New York had sufficient contacts with the transaction and whether New 25 York’s law violates a fundamental principle of justice. See, e.g., Henry v. Major League Baseball 26 Advanced Media, L.P., Nos. 24 Civ. 0144 (GHW) (GWG), 24 Civ. 06270 (GHW) (GWG), 25 Civ. 27 00777 (GHW) (GWG), 2025 WL 3717068, at *8 (S.D.N.Y. Dec. 23, 2025), report & 1 No. 24-cv-5223-LJL, 2025 WL 950989, at *5-8 (S.D.N.Y. Mar. 28, 2025) (concluding that “there 2 is reason to believe that the analysis in Moseley is reconcilable with Ministers & Missionaries and 3 related New York cases”); Willis Re Inc. v. Herriott, 550 F. Supp. 3d 68, 94 (S.D.N.Y. 2021) (“If 4 applying the analysis in Moseley called for choosing California law in this case . . ., the Court would 5 be compelled to do so – even if Moseley was an incorrect interpretation of current New York law.”). 6 Plaintiffs leap to the conclusion that a federal court in New York would not apply California 7 substantive law to their claims. But “federal judges routinely apply the law of a State other than the 8 State in which they sit.” See Atl. Marine, 571 U.S. at 67. Plaintiffs rely on Doe 1 v. AOL, LLC. See 9 Opp’n at 25. There, the Ninth Circuit refused to enforce a forum selection clause because 10 proceeding in the selected forum – Virginia state court – would force plaintiffs to waive both their 11 right to proceed as a class action and to receive enhanced remedies under the CLRA. 552 F.3d at 12 1084-85. As one Judge of this district recently explained when granting a motion to transfer the 13 claims of California plaintiffs suing under the CLRA, “such reasoning is inapplicable to federal 14 court to federal court transfers.” See Franks, 2025 WL 3760381, at *4. Similarly, another Judge of 15 this district transferred venue to the District of Nevada, finding not “well-founded” the plaintiffs’ 16 argument that “presuppose[d] a dismissal by the Nevada court” of their CLRA claims. See Reza v. 17 Zuffa, LLC, No. 22-cv-9068-MMC, 2023 WL 2620899, at *2-3 (N.D. Cal. Mar. 22, 2023). 18 For all the reasons set forth above, the Court finds the forum selection clause contained in 19 the 2024 and 2025 Take-Two Terms is valid. 20 Where “the forum selection clause is valid, the Court’s analysis of the Section 1404(a) 21 motion is limited to considering public interest factors.” Franks, 2025 WL 3760381, at *4; Atl. or 22 for their pursuit of the litigation.”). The public interest factors which the Court may consider include 23 “the administrative difficulties flowing from court congestion; the local interest in having localized 24 controversies decided at home; [and] the interest in having the trial of a diversity case in a forum 25 that is at home with the law.” Atl. Marine, 571 U.S. at 62 n.6 (quoting Piper Aircraft Co. v. Reyno, 26 454 U.S. 235, 241 n.6 (1981)). Here, plaintiffs make no argument regarding the public interest 27 factors separate from their argument regarding California public policy. The Court does not find ] Finally, to the extent that plaintiffs’ supplemental brief contends that “the Court should 2 || decline to enforce any of the Terms’ dispute resolution procedures—including the forum selection 3 and choice of law clauses[,]” the Court rejects this argument. See Franks, 2025 WL 3760381, at *2 4 || (“it is inappropriate to analyze the validity of the contract as a whole when determining the 5 applicability of a forum selection clause”) (quoting Fleming v. Matco Tools Corp., 384 F. Supp. 3d 6 1124, 1131 (N.D. Cal. 2019)). 7 Defendant’s motion to transfer venue to the Southern District of New York is GRANTED. 8 9 CONCLUSION 10 For the foregoing reasons, the Court GRANTS defendant’s motion to transfer but declines 11 to rule on the motion to compel arbitration. See Dkt. No. 37. The Clerk shall transfer this case to 12 || the United States District Court for the Southern District of New York. 13 The Court declines to rule on the motion to dismiss and motion to stay discovery. See Dkt. 14 || Nos. 38, 39. The Clerk shall terminate these motions as denied as moot, without prejudice, in light 3 15 of the transfer of this action to New York. a 16 The initial case management conference is hereby VACATED.

Z 18 IT IS SO ORDERED. 19 || Dated: March 31, 2026 Site WU tee 20 SUSAN ILLSTON 21 United States District Judge 22 23 24 25 26 27 28