1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GARY FEDOROFF, Case No. 26-cv-00702-JSC
8 Plaintiff, ORDER GRANTING DEFENDANT’S 9 v. MOTION TO TRANSFER
10 ROCKET MORTGAGE, LLC, Re: Dkt. No. 22 Defendant. 11
12 13 Plaintiff Gary Federoff, on behalf of himself and a putative class, alleges Defendant 14 Rocket Mortgage, LLC unlawfully disclosed sensitive information related to his mortgage 15 refinancing application. (Dkt. No. 1.)1 Before the Court is Defendant’s motion to transfer this 16 case to the Eastern District of Michigan. (Dkt. No. 22.) For the reasons set forth below, the Court 17 GRANTS Defendant’s motion and transfers the case to the Eastern District of Michigan pursuant 18 to 28 U.S.C. § 1404(a). Plaintiff had inquiry notice of and assented to the Terms of Use, 19 hyperlinked on his refinancing application, which contained a binding, enforceable forum 20 selection clause. Accordingly, the Court disregards Plaintiff’s choice of forum and considers only 21 the public-interest factors under 28 U.S.C. § 1404(a), and Plaintiff has not shown those factors 22 overwhelmingly disfavor transfer. 23 BACKGROUND 24 I. Complaint Allegations 25 Defendant is an LLC “organized and existing under the laws of Michigan,” with its 26
27 1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 1 principal place of business in Detroit. (Dkt. No. 1. ¶ 11.) Defendant “is one of the largest online 2 mortgage lenders that operates a website www.rocketmortgage.com[.]” (Id. ¶ 1.) Defendant 3 advertises it is “a way to get a mortgage. Just tell us about yourself, your home and your finances, 4 and we’ll give you real interest rates and numbers – not just our best guess.” (Id. ¶ 27.) “Then, 5 [Defendant] will guide you through the mortgage process, from getting approved to closing to 6 managing your payments.” (Id.) 7 “Consumers can apply for a […] mortgage refinance directly on the […] Website,” and 8 they do so “by answering a series of questions on the Website.” (Id. ¶¶ 1, 52.) A quote 9 presumably taken from Defendant’s website states:
10 Rocket Mortgage® was designed to walk you through the entire mortgage process from application to closing. Our online application 11 asks you a series of questions to evaluate your eligibility for a home loan. Then, we use the information you gave us, and information from 12 your credit report, to provide you with mortgage recommendations and see if we can approve you. 13 14 (Id. ¶ 52; see id. ¶ 51 (alleging, in the immediately preceding paragraph, a screenshot “depicting 15 the landing page for rocketmortgage.com leading to the form to be filled out”).) 16 In November 2025 Plaintiff “visited” Defendant’s website, “navigated to the refinancing 17 section of” the website, then “completed [Defendant’s] online refinancing application, which 18 required him to provide detailed personal information including his full legal name, email address, 19 phone number, and residential address.” (Id. ¶¶ 62, 64.) “The refinancing application also 20 required Plaintiff to disclose sensitive financial information that is not available in public records, 21 including his estimated current home value, requested refinance loan amount, current monthly 22 mortgage payment, monthly homeowners insurance premium, monthly property tax payment, and 23 the specific purpose of Plaintiff's refinance application.” (Id. ¶ 65.) 24 Then, Defendant disclosed information related to Plaintiff’s mortgage refinancing 25 application through tracking technologies embedded on Defendant’s website. (Id. ¶¶ 30-50.) One 26 of those technologies, Optimizely, “allows Defendant to track and share” details about a 27 customer’s visit to the website, including the “actions” taken and “when” the visit took place. (Id. 1 ¶¶ 95-191.) 2 II. Defendant’s Evidence 3 One of Defendant’s employees, Ms. Courtney, submitted a declaration about Plaintiff’s 4 mortgage refinancing application, which initially takes the form of a chat conversation. She attests 5 her past and present job responsibilities working for Defendant included “reviewing, analyzing, 6 collecting, and identifying website records, client data, website pages, and other data and 7 information maintained in the ordinary course of business in Rocket Mortgage’s systems of 8 record.” (Dkt. No. 22-11 ¶ 3.) She further attests “[a]ccording to Rocket Mortgage’s business 9 records that are maintained in the ordinary course of business, Plaintiff Fedoroff submitted his 10 refinancing application via chat on November 2, 2025.” (Id. ¶ 9.) 11 Ms. Courtney attaches to her declaration a screenshot of “the submission page for 12 Plaintiff’s refinancing application.” (Id. ¶ 10.) As relevant here, the screenshot illustrates: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 Get ready to explore refi options designed to help you lower your monthly payment with confidence and clarity. Confirm your 2 contact info and discover what's possible. 3 First narnia 4 5 Last name 6 7 Phone number 8 Email address (optional) 9 10 For text massages, data ratas may apply and message frequency vares. Realy STOP te unsubscribe or HELP fer ] ] help, By providing your contact info and clicking "Confirm & continue” below, you agree to our Privacy Policy and Terms of Use. which includes your agreement to arbitrate claims related to the Telephone Consumer Protection Act. You also 12 omen consent slecisordoanetawn to receive _ Marketing amd other calls and texts, including those sant by & 13 any automated system or other means for selecting and = dialing telephone numbers, of using an artificial or x prerecorded voice Masse when &@ connection is 14 completed. from Rocket Mortgage at the telephone number oO you provided, even if that telephone number on & do-it - call lst. Agreement to receive such calls or texts is mot a 15 condition of Purchasing goods or services from us.
(17
18 (Dkt. No. 22-12 at 2.) The webpage has a white background. (See id.) At the top is a blurb 19 saying, among other things, “[c]onfirm your contact info and discover what’s possible” in black 20 text, with a contrasting light-gray background. (/d.) Below the blurb are four fields titled “First 21 name” “Last name” “Phone number” and “Email address (optional).” (/d.) Those fields, just like 22 || the blurb, have black text and a contrasting light-gray background. 23 Underneath those four fields is a paragraph with text that is virtually the same size as the 24 || fields’ text, but the paragraph’s text has a slightly lighter gray hue and contrasts with a white 25 || background. (See id.) The paragraph occupies nearly as much space as the four fields combined. 26 || (See id.) The first two sentences say “For text messages, data rates may apply and message 27 || frequency varies. Reply STOP to unsubscribe or HELP for help.” (/d.) The third sentence states 28 “By providing your contact info and clicking ‘Confirm & continue’ below, you agree to our
1 Privacy Policy and Terms of Use[.]” (Id. (bold and underline in original)). The words “Privacy 2 Policy” and “Terms of Use” are underlined, bolded, capitalized as though they were proper nouns, 3 and hyperlinked to separate webpages containing the Privacy Policy and Terms of Use. (See id.) 4 The paragraph concludes with two more sentences regarding telemarketing, which occupy roughly 60% of the paragraph’s space. (See id.) Finally, the bottom of the screenshot has a black button 5 saying “Confirm & continue.” (Id.) 6 Ms. Courtney attests clicking the hyperlink on the words “Terms of Use” takes users to a 7 separate webpage titled “Rocket Terms of Use.” (Dkt. No. 22-11 ¶ 12; Dkt. No. 22-13 at 2-8.) As 8 relevant here, the Terms contain an arbitration provision for claims related to the Telephone 9 Consumer Protection Act, then state “[a]ll other claims arising under these Terms or from use of 10 the Website shall be resolved exclusively in the state or federal courts located in Detroit, 11 Michigan, and you consent to the jurisdiction of these courts for such purposes.” (Dkt. No. 22-13 12 at 5.) Next, a “Governing law” section states “[t]hese Terms and any disputes arising from your 13 use of the Website shall be governed by the State of Michigan, without regard to its conflict of law 14 principles.” (Id.) 15 Ms. Courtney also attests “to submit a refinancing application, Plaintiff was required to 16 agree to Rocket Mortgage’s Terms of Use [] by clicking a ‘Confirm & continue’ button.” (Dkt. 17 No. 22-11 ¶¶ 9-10.) And Plaintiff purportedly did so: “during Plaintiff’s November 2, 2025 chat 18 conversation, Plaintiff entered his contact information (including first name, last name, email, and 19 phone number) and agreed to the Terms by clicking “Confirm & continue,” and then proceeded to 20 engage in the chat conversation.” (Id. ¶ 15.) Plaintiff then followed up with Defendant over the 21 next month:
22 [A]ccording to Rocket Mortgage’s business records, Plaintiff accessed an account previously created with Rocket Mortgage and 23 submitted documents in support of his refinancing application between November 6, 2025 and November 14, 2025, and interacted 24 with Rocket Mortgage’s mortgage bankers by telephone and text between November 6, 2025 and December 6, 2025. Plaintiff’s 25 refinancing application was denied on December 7, 2025. 26 (Id. ¶ 16.) 27 DISCUSSION 1 district court may “transfer any civil action to any other district or division where it might have 2 been brought or to any district or division to which all parties have consented ... [f]or the 3 convenience of parties and witnesses.” 28 U.S.C. § 1404(a). In considering such a transfer, courts 4 weigh various factors “and decide whether, on balance, a transfer would serve ‘the convenience of parties and witnesses’ and otherwise promote ‘the interest of justice.’” Atl. Marine Const. Co. v. 5 U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 62–63 (2013) (quoting 28 U.S.C. § 1404(a)). “The 6 calculus changes, however, when the parties’ contract contains a valid forum-selection clause, 7 which represents the parties’ agreement as to the most proper forum.” Id. at 63 (cleaned up). 8 Under such circumstances, “a proper application of § 1404(a) requires that a forum-selection 9 clause be given controlling weight in all but the most exceptional cases.” Id. at 59–60 (cleaned 10 up). By “[e]nforc[ing] ... valid forum-selection clauses, bargained for by the parties, [the court] 11 protects their legitimate expectations and furthers vital interests of the justice system.” Id. at 63 12 (cleaned up). Accordingly, when presented with such an agreement, the court must disregard the 13 plaintiff’s choice of forum and the parties’ private interests. Id. at 63–64. The court instead 14 weighs the “public-interest factors only,” and “those factors will rarely defeat a transfer motion.” 15 Id. at 64. Further, “the party acting in violation of the forum-selection clause [...] must bear the 16 burden of showing that public-interest factors overwhelmingly disfavor a transfer.” Id. at 67. 17 Here, the parties agree Plaintiff filled out a mortgage refinancing application on 18 Defendant’s website in November 2025 which “required him to provide,” at a minimum, “his full 19 legal name, email address, [and] phone number.” (See Dkt. No. 1 ¶¶ 62, 64; Dkt. No. 22-11 ¶ 15; 20 Dkt. No. 22-12 at 2.) Defendant asserts by entering this contact information, then clicking 21 “Confirm & continue,” Plaintiff agreed to the website’s Terms of Use, which bind Plaintiff to the 22 forum selection clause requiring him to litigate the case in a court in Detroit, Michigan. (Dkt. No. 23 22-1 at 14-15; Dkt. No. 22-12 at 2.) 24 As the party seeking to enforce the forum selection clause, Defendant “bears the burden of 25 proving the existence of an agreement ... by a preponderance of the evidence.” Norcia v. Samsung 26 Telecomms. Am., LLC, 845 F.3d 1279, 1283 (9th Cir. 2017) (cleaned up). The parties agree 27 California law applies to this question. (Dkt. No. 22-1 at 14 n.1 (noting the Terms of Use says 1 Michigan law applies, and California applies the same contract formation principles as Michigan); 2 Dkt. No. 23 at 4 n.1 (asserting California law applies).) Given the parties’ agreement, the Court 3 assumes California law applies. “To form a contract under ... California law, the parties must 4 manifest their mutual assent to the terms of the agreement.” Berman v. Freedom Fin. Network, 5 LLC, 30 F.4th 849, 855 (9th Cir. 2022). “[I]f a website offers contractual terms to those who use 6 the site, and a user engages in conduct that manifests her acceptance of those terms, an enforceable 7 agreement can be formed.” Id. at 855–56. 8 A. Defendant’s Evidence as to What Plaintiff Encountered is Undisputed 9 As an initial matter, Plaintiff asserts Defendant’s screenshot is not “competent … 10 evidence” of a purported agreement for three reasons. (Dkt. No. 23 at 5.) First, the screenshot 11 does not show everything Plaintiff encountered on the website because it does not show the 12 previous or subsequent pages Plaintiff viewed, the “device Plaintiff used,” “whether the notice was visible without scrolling,” and whether the screenshot “portrays the page Plaintiff saw during 13 his visit in November 2025.” (Id.) Second, Plaintiff asserts the screenshot attached to Ms. 14 Courtney’s declaration “clearly is not” a “‘true and correct screenshot of the submission page for 15 Plaintiff’s refinancing application.’” (Dkt. No. 23 at 6 (quoting Dkt. No. 22-11 ¶ 10).) Plaintiff 16 asserts the screenshot is “clearly” not what the website looked like during Plaintiff’s visit because 17 it is “common sense” “the ‘Confirm & continue” button indicates there are additional steps in the 18 process” and Defendant’s evidence shows “Plaintiff submitted documents in support of the 19 application” in the two weeks after his website visit, yet “ostensibly the application could not be 20 formally submitted for consideration without this documentation.” (Dkt. No. 23 at 6.) Plaintiff 21 does not explain or offer evidence why the application “ostensibly” required this documentation 22 on the day Plaintiff visited the website. Third, Plaintiff reiterates his allegation “Defendant 23 installed tracking technology from Optimizely on its website.” (Id. at 6-7.) Plaintiff then cites 24 portions of Optimizely’s website which his complaint does not allege to suggest “Optimizely may 25 cause multiple variants of the same page to be presented to users” because “[t]hrough Optimizely, 26 website operators can modify and reorder the sequence of on-page elements, allowing them to 27 change what users actually see while visiting their website.” (Id. (emphasis added).) 1 visited is unavailing. Plaintiff expressly alleges in November 2025 he “visited” the website, 2 “navigated to the refinancing application section” of Defendant’s website to complete a 3 refinancing application,” then “completed Rocket Mortgage’s online refinancing application, 4 which required him to provide […] his full legal name, email address, phone number, and 5 residential address.” (Dkt. No. 1 ¶¶ 62-64.) And Ms. Courtney attests the screenshot attached to 6 her declaration is “a true and correct screenshot of the submission page for Plaintiff’s refinancing 7 application.” (Dkt. Nos. 22-11 ¶ 10, 22-12 at 2.) Yet, Plaintiff does not offer any evidence 8 contradicting Ms. Courtney’s testimony or her screenshot of what Plaintiff encountered. Instead, 9 Plaintiff gestures to vague, unsupported notions of “common sense” and what is “ostensibly” true 10 about the application process Plaintiff experienced. (Dkt. No. 23 at 5-7.) Plaintiff then quotes 11 another company’s website as evidence of features Defendant is technically “allow[ed]” to use in 12 designing its website, but does not offer any declaration or other evidence Defendant made any 13 design choices that would make Defendant’s screenshot differ from Defendant’s evidence as to 14 what Plaintiff saw in November 2025. (Id.) So, given Plaintiff does not offer evidence that rebuts 15 Defendant’s evidence, Defendant has provided competent evidence of the website Plaintiff 16 encountered in November 2025. Accordingly, the next question is whether the website’s Terms of 17 Use, shown in Defendant’s screenshot, contained a valid and enforceable forum selection clause. 18 B. The Terms Included a Valid Forum Selection Clause 19 In California, “internet contracts are classified ‘by the way in which the user purportedly 20 gives their assent to be bound by the associated terms: browsewraps, clickwraps, scrollwraps, and 21 sign-in wraps.’” Keebaugh v. Warner Bros. Ent. Inc., 100 F.4th 1005, 1014 (9th Cir. 2024) 22 (quoting Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 463 (2021)). Here, the parties dispute 23 whether the Terms of Use should be analyzed as a “browsewrap” or a “sign-in wrap” agreement. 24 A “browsewrap” is an agreement where “an internet user accepts a website’s terms of use merely 25 by browsing the site.” Sellers, 73 Cal. App. 5th at 463. By contrast, under a “sign-in wrap” 26 agreement, “a user signs up to use an internet product or service, and the sign-up screen states that 27 acceptance of a separate agreement is required before the user can access a service.” Id. at 464. 1 not required to indicate that they have read the agreement’s terms before signing up.” Id. 2 Here, the refinancing application contains a sign-in wrap agreement. It is undisputed in 3 November 2025, Plaintiff provided his information to obtain an online application, i.e., he 4 “sign[ed] up to use an internet product or service.” (Dkt. No. 1 ¶¶ 62, 64; Dkt. No. 22-11 ¶ 15); 5 Sellers, 73 Cal. App. 5th at 464. At the time, Defendant’s website stated “[b]y providing your 6 contact info and clicking ‘Confirm & continue’ below, you agree to our Privacy Policy and 7 Terms of Use,” and linked users to the Terms of Use on a separate webpage. (Dkt. No. 22-11 ¶ 8 12; Dkt. No. 22-12 at 2.) In other words, “the sign-up screen state[d] that acceptance of a separate 9 agreement is required” and “a link to the separate agreement [was] provided,” which is a classic 10 sign-in wrap agreement. Sellers, 73 Cal. App. 5th at 464. Plaintiff emphasizes how on a separate 11 website page, the Terms state “you accept and agree to these Terms” “[b]y accessing or using the 12 website,” which is a feature of browsewrap agreements. (Dkt. No. 22-12 at 3); Sellers, 73 Cal. 13 App. 5th at 463. But an internet contract is defined “by the way in which the user purportedly 14 gives their assent to be bound.” Sellers, 73 Cal. App. 5th at 463. And here, Defendant asserts 15 Plaintiff assented to the Terms by clicking a button on a sign-up page, not by merely accessing or 16 using the website. That the Terms may have also included a browsewrap agreement does not 17 nullify the refinancing application’s sign-in wrap agreement; at least Plaintiff does not offer any 18 caselaw or even reason why that would be so. 19 Thus, the hyperlinked Terms are a sign-in wrap agreement, meaning Plaintiff is “not 20 required to indicate that [he had] read the agreement’s terms before signing up.” Id. at 464. 21 Rather, to be enforceable, the website operator must show the user had “actual knowledge” or 22 “inquiry notice” of the agreement. Berman, 30 F.4th at 856. Here, Defendant asserts Plaintiff had 23 inquiry notice of the agreement, which requires “(1) the website provides reasonably conspicuous 24 notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, 25 such as clicking a button or checking a box, that unambiguously manifests his or her assent to 26 those terms.” Id. The central dispute here is whether Defendant’s website provided reasonably 27 conspicuous notice of the hyperlinked Terms of Use. 1 1. Defendant’s Website Provided Reasonably Conspicuous Notice 2 To determine whether a website provides reasonably conspicuous notice of its terms such 3 that a “reasonably prudent Internet user would have seen it,” courts consider “the placement of the 4 notice” and “the context of the transaction.” Oberstein v. Live Nation Ent., Inc., 60 F.4th 505, 5 515–16 (9th Cir. 2023) (cleaned up). As for notice placement, certain factors are relevant to the 6 “visual analysis of webpages and hyperlinks, such as the location of the advisal on the webpage or 7 the font size, color, and contrast.” Godun v. JustAnswer LLC, 135 F.4th 699, 709 (9th Cir. 8 2025); see also Berman, 30 F.4th at 856–57 (considering notice to be insufficiently conspicuous 9 when the notice was printed in a “barely legible” gray font that also failed to denote the existence 10 of a hyperlink in a recognizable way, such as in blue font or all capitalized letters). And in 11 transactions that entail a continuing relationship, as opposed to “one-time” interaction, courts 12 assume a reasonably prudent user would be more likely to expect to be governed by some terms 13 and thus be on notice of a link to those terms. See Sellers, 73 Cal. App. 5th at 476–77 (noting a 14 user would expect an ongoing relationship with contractual terms when they download an app and 15 register for an account, but not when the user merely begins a $5 trial or is engaging in a “one- 16 time” purchase). 17 Plaintiff asserts Defendant’s website did not provide reasonably conspicuous notice under 18 either consideration. As for notice placement, Plaintiff makes two overarching arguments. First, 19 “Defendant chose to do the bare minimum to set the Terms apart from the surrounding text” 20 because the hyperlinked words “Terms of Use” are underlined, bolded, the same color and size as 21 the surrounding text, and not in all capital letters. (Dkt. No. 23 at 8-9.) Second, the paragraph is 22 “cluttered” in the sense the words “Terms of Use” are “stuck in the middle of a very long and busy 23 paragraph.” (Id. at 9.) The clutter “matters because the more distinct and unrelated issues that 24 were bundled into one dense paragraph, the more likely it is that a reasonable user’s attention will 25 be drawn away from any single topic, including the Terms. A typical user[ …] would 26 understandably gloss over the […] hyperlink[.]” (Id.) Regarding the transaction context, Plaintiff 27 emphasizes Defendant’s website “is a noncommittal start of a refinancing inquiry” and “does not 1 website “denotes the beginning of an inquiry into potential mortgage refinancing options.” (Id. at 2 11 (first emphasis in original, second and third emphasis added).) 3 a. Notice Placement 4 The placement and visual characteristics of “Terms of Use” provided reasonably 5 conspicuous notice. The words “Terms of Use” are underlined, bolded, and capitalized as though 6 they are proper nouns, all of which are features which contrast to the surrounding text. (See Dkt. 7 No. 22-12 at 2.) “Terms of Use” also appears in the paragraph directly above the “Confirm & 8 continue” button. So, because people read from top to bottom, “a reader would naturally see the 9 notice before their eyes move to” the “Confirm & continue” button. Beltran v. Nationstar Mortg. 10 LLC, 2026 WL 637337, at *5 (N.D. Cal. Mar. 6, 2026). Although the hyperlink is not blue, the 11 contrasting features, coupled with a lack of distracting features elsewhere on the webpage, make 12 “Terms of Use” stand out enough for a reasonable internet user to notice it and recognize it is a 13 hyperlink to a separate webpage. 14 Plaintiff’s reliance on Sellers and Berman is misplaced. For two webpages in Sellers, “the 15 hyperlink [… was] underlined” and did not “otherwise draw the user’s attention in any way,” but 16 here there are multiple visual elements “draw[ing] the user’s attention” to the words “Terms of 17 Use.” See Sellers, 73 Cal. App. 5th at 481 (emphasis added). Sellers also emphasized
18 the text [for the first webpage] appears below the white payment box, outside the user’s primary area of focus, and not in visual proximity 19 … to the request for consent. Similarly, the textual notice on the mobile version is at the very bottom of the screen, in smaller text than 20 anything else on the page, and in a grey hue that contrasts less with the dark background than any other text on the page. 21 22 Id. at 479 (cleaned up). Berman’s textual notice suffered similar problems. See 30 F.4th at 856– 23 57 (“It is printed in a tiny gray font considerably smaller than the font used in the surrounding 24 website elements[. …] And the textual notice is further deemphasized by the overall design of the 25 webpage[.]”) Here, the “Terms of Use” hyperlink is much easier to see because it has none of 26 those problems. It appears above the “Confirm & continue” button, meaning it is within “the 27 user’s primary area focus” and is “in visual proximity … to the request for consent.” (See Dkt. 1 virtually the same font size as the preceding text fields, and its hue contrasts equally well with its 2 background compared to the other text on the webpage. (See Dkt. No. 22-12 at 2); Sellers, 73 Cal. 3 App. 5th at 479. In other words, the “Terms of Use” here are not “buried in fine print” and 4 Defendant has “do[ne] more than simply underscore the hyperlinked text to ensure that it is 5 sufficiently ‘set apart’ from the surrounding text.” Berman, 30 F.4th at 857 (quoting Sellers, 73 6 Cal. App. 5th at 481). 7 Plaintiff’s other cited cases–Dawson v. Target Corp., 2025 WL 1651940 (N.D. Cal. June 8 11, 2025) and Cavanaugh v. Fanatics, LLC, 738 F. Supp. 3d 1285 (E.D. Cal. 2024)–do not 9 persuade. Plaintiff emphasizes Dawson’s textual notice “lack[ed] a contrasting color and are in 10 the same black text as the majority of the text on the screens” and Cavanaugh reasoned 11 “hyperlinks must be offset in a more obvious way than [] underlining.” 2025 WL 1651940, at *3; 12 738 F. Supp. 3d at 1296. But there are no “per se design rules that must be followed for a contract 13 to be formed between a website user and provider.” Godun, 135 F.4th at 710. Indeed, Sellers 14 explicitly declined to adopt “clear rules” or a “set of rules” for examining a notice’s placement and 15 visual elements. 73 Cal. App. 5th at 474. Instead, Sellers acknowledged the criteria courts apply 16 is “largely subjective, and there naturally may be different views regarding, for example, what size 17 or color of text makes a given textual notice sufficiently conspicuous to bind a user.” Id. at 473. 18 To the extent Sellers creates a minimum standard for when a sign-in wrap agreement creates 19 reasonably conspicuous notice, Defendant’s notice here exceeds that standard in many respects. 20 See id. at 480–81 & n.1 (finding insufficient notice placement when there is a combination of: 21 “extremely small” font “in relation to the other text on the screen,” the text’s placement “outside” 22 areas on the webpage “where the consumer’s attention would necessarily be focused,” the text’s 23 color contrast with the page’s “background,” and a hyperlink that was underlined without “any 24 other way that may draw the attention of the consumer”); id. at 481 (“[c]onsidering all of these 25 factors together,” finding insufficient notice placement due to the text’s relative size, its “grey 26 shade that contrasts with the dark background significantly less than the other text on the page,” 27 and the fact its hyperlink was merely underlined.) 1 long and busy paragraph” (Dkt. No. 23 at 9) is unavailing for two reasons. First, Plaintiff cites no 2 authority holding a hyperlinked textual notice is not reasonably conspicuous because “distinct and 3 unrelated issues” would draw “a reasonable user’s attention […] away from […] the Terms.” (Id.) 4 Sellers contemplates whether a reader would see particular text due to its placement and visual 5 characteristics, not due to the topics of accompanying text. Nor does Plaintiff cite authority 6 suggesting a reasonable internet reader cannot be considered on inquiry notice because he glossed 7 over a conspicuously displayed sentence (or was somehow distracted from understanding that 8 sentence) simply because that sentence appeared in a paragraph alongside other topics. If 9 anything, the parties’ cited cases make clear a reasonable internet user does not “understandably 10 gloss over” information that is conspicuously displayed. (Id. at 9); see Lee v. Ticketmaster LLC, 11 817 Fed. App’x. 393, 395 (9th Cir. 2020) (“[Plaintiff] ‘cannot avoid the terms of [the] contract on 12 the ground that he … failed to read it before signing,’ especially when he ‘had a legitimate 13 opportunity to review it.’”) (italics in original) (quoting Marin Storage & Trucking, Inc. v. Benco 14 Contracting & Eng’g, Inc., 89 Cal. App. 4th 1042, 1049 (2001) and Mohamed v. Uber Tech., Inc., 15 109 F. Supp. 3d 1185, 1198 (N.D. Cal. June 9, 2015), rev’d in part on other grounds, 848 F.3d 16 1201 (9th Cir. 2016)). Moreover, Plaintiff’s argument seems to suggest he should not be bound by 17 a contract because Defendant provided too much detail about the terms by which Plaintiff would 18 be bound. That argument, if adopted here, effectively incentivizes a website operator to not 19 provide more notice to its users in a conspicuous manner and, in any event, Plaintiff cites no 20 authority for it. 21 Second, the paragraph’s length or size do not make the words “Terms of Use” 22 inconspicuous. The paragraph is five sentences; the first two sentences are short and “Terms of 23 Use” appears in the third sentence. (See Dkt. No. 22-12 at 2.) Collectively, those sentences span 24 15 lines, occupying roughly the same amount of space as the four preceding text fields. (See id.) 25 So, the paragraph is not particularly long, relative to the size occupied by other webpage elements. 26 To the extent a reasonable internet user would gloss over a paragraph explaining his rights because 27 the first two sentences relate to telemarketing, a proposition for which Plaintiff offers no authority, 1 the words are bolded and underlined to draw the reader’s attention. (See id.) In other words, 2 “Terms of Use” is not “buried in fine print” at the bottom of the paragraph, nor does the 3 paragraph’s length “draw the user’s attention away” from the words “Terms of Use.” See Berman, 4 30 F.4th at 857. 5 So, the placement of the “Terms of Use” hyperlink strongly counsels in favor of 6 conspicuous notice. 7 b. Transaction Context 8 Next, courts consider “the full context of the transaction.” Sellers, 73 Cal. App. 5th at 497. 9 For example, Sellers examined what webpages said “[w]hen a user first accesses the […] website” 10 and whether “the transaction is one in which the typical consumer would […] expect to enter into 11 an ongoing contractual relationship,” noting “it is questionable whether a consumer buying a 12 single pair of socks, or signing up for a free trial, would expect to be bound by contractual 13 terms[.]” Id. at 476; see also id. at 476–78 (holding consumers who paid a “one-time fee of $5” 14 on a website which offered a “trial” to “[t]alk to doctors, lawyers, vets, [and] more in minutes” 15 would not expect an ongoing relationship, analogizing to a California appellate case holding 16 consumers did not expect an ongoing relationship during “the purchase of a single flower 17 arrangement.”) Defendant does not identify other webpages Plaintiff saw, and instead emphasizes 18 the nature of applying to refinance one’s mortgage and Plaintiff’s subsequent conduct after 19 completing the application. (Dkt. No. 22-1 at 10-11; Dkt. No. 22-11 ¶ 16; Dkt. No. 24 at 8 20 (“anyone seeking refinancing would understand that such an application requires further 21 interactions[.]”)) 22 Here, the nature of a mortgage refinancing application suggests a reasonable user 23 completing Defendant’s application “would expect to be bound by contractual terms” because it 24 entails at least some further interactions in an ongoing relationship. Sellers, 73 Cal. App. 5th at 25 476. In the application, Plaintiff provided his full legal name and contact information. (Dkt. No. 1 26 ¶¶ 62, 64; Dkt. No. 22-11 ¶ 15; Dkt. No. 22-12 at 2.) A reasonable person doing so would expect 27 an ongoing relationship because the point of providing contact information is to be contacted 1 buying “a single pair of socks” or a “single flower arrangement,” i.e., a “one-time purchase” 2 which takes place “in minutes.” Sellers, 73 Cal. App. 5th at 496–98. Rather, he was seeking to 3 refinance his mortgage, or at least find refinancing options, which any reasonable person 4 understands entails future communications, if not a long-term endeavor. All of these factors 5 suggest a reasonable user would expect an ongoing relationship, and therefore expect to be bound 6 by contractual terms, at the time they clicked “Confirm & continue” on Defendant’s website. 7 But beyond that one-time click, Defendant has not fleshed out “the full context of the 8 transaction” with respect to what a reasonable user expects after completing Defendant’s 9 application. Id. at 497. It is Defendant’s burden to show assent, and Defendant has not shown, for 10 instance, what its website displays after Plaintiff clicked “Confirm and continue.” Relatedly, 11 Plaintiff notes Defendant’s website “denotes the beginning of an inquiry into potential mortgage 12 refinancing options,” not a “long-term relationship.” (Dkt. No. 23 at 11) (italics in original). The 13 Court agrees, in part. Plaintiff’s argument appears to misunderstand the applicable standard. A 14 user need not anticipate a “long-term relationship” to expect to be bound by contractual terms. 15 (Id.) Rather, Sellers examined whether a consumer expects a “one-time” purchase or an 16 “ongoing” relationship. See 73 Cal. App. 5th at 471–78. Here, a reasonable user would naturally 17 expect an ongoing relationship when they inquire about refinancing their mortgage because 18 mortgage refinancings are not completed “in minutes.” Id. at 496–98. Plaintiff urges the 19 application is more of an “inquiry” to see one’s “available … options.” (Dkt. No. 23 at 11, 13.) 20 But his own allegations compel an inference his application is more than a one-time “inquiry,” and 21 entails an ongoing process, although the length of that process may vary depending on a user’s 22 refinancing options and goals. (See Dkt. No. 1 ¶ 27 (“Just tell us about yourself, your home and 23 your finances, and we’ll give you real interest rates and numbers – not just our best guess. Then, 24 [we] will guide you through the mortgage process, from getting approved to closing to managing 25 your payments.”) ¶ 52 (“we use the information you gave us […] to provide you with mortgage 26 recommendations and see if we can approve you.”) Under Plaintiff’s own allegations, he began a 27 “process” by filling out an “application” which Defendant “can approve,” and after approval, 1 mortgage refinancing, even just an initial inquiry, entails a much higher likelihood of an ongoing 2 relationship than a one-time flower purchase or a trial for a service provided “in minutes.” Sellers, 3 73 Cal. App. 5th at 496–98. Ultimately, even without the “full context of the transaction,” here, 4 the transaction context at least slightly favors reasonably conspicuous notice. 5 *** 6 So, Plaintiff assented to the forum selection clause in the Terms of Use. Although the 7 transaction context slightly favors reasonable conspicuous notice, this factor, coupled with the 8 notice’s placement and visual characteristics, are sufficient to put Plaintiff on inquiry notice of the 9 Terms of Use. Therefore, by clicking “Confirm & continue,” Plaintiff agreed to be bound by the 10 forum selection clause. 11 C. California Public Policy Does Not Render the Clause Unenforceable 12 A forum selection clause is unenforceable when “enforcement of the clause would 13 contravene a strong public policy of the forum in which the suit is brought.” Argueta v. Banco 14 Mexicano, S.A., 87 F.3d 320, 325 (9th Cir. 1996) (cleaned up). Plaintiff incorrectly contends even 15 if he agreed to the forum selection clause, it is unenforceable because it contravenes California’s 16 “statutory scheme governing venue in consumer credit transactions–evidencing a strong public 17 policy against enforcement” of the clause. (Dkt. No. 23 at 14-15.) Plaintiff asserts California 18 Code of Civil Procedure Section 395 requires this action be brought where he resides, and he 19 completed the application “while residing in Marin County, California.” (Id.) Not so. 20 Section 395 does not render the forum selection clause here unenforceable because it is a 21 venue provision, not a provision regarding “the forum in which the suit is brought.” Argueta, 87 22 F.3d at 325. As relevant here, the statute provides
23 (b) […] [I]n an action arising from an offer or provision of goods, services, loans or extensions of credit intended primarily for personal, 24 family or household use [...] the superior court in the county where the buyer or lessee in fact signed the contract, where the buyer or 25 lessee resided at the time the contract was entered into, or where the buyer or lessee resides at the commencement of the action is the 26 proper court for the trial of the action. […]
27 (c) Any provision of an obligation described in subdivision (b) 1 Cal. Code Civ. Pro. §§ 395(b)–(c) (emphasis added). That is a venue selection clause. 2 Interpreting Section 395(b), one California court of appeal held
3 Forum means “[a] court or other judicial body; a place of jurisdiction.” Venue is “[t]he county or other territory” in which a 4 case may be heard, i.e., the place from which the jury will be selected. Under state law, therefore, a venue selection clause is purely an 5 intrastate issue involving the selection of a county in which to hold the trial. By contrast, a forum selection clause usually chooses a court 6 from among different states or nations.
7 Alexander v. Sup. Ct., 114 Cal. App. 4th 723, 727 (2003) (cleaned up) (citing Black’s Law Dict. 8 (7th ed. 1999)). Moreover, “the prohibition upon private selection of intrastate venue rests upon 9 considerations different from those that justify interstate and international forum selection 10 agreements.” Id. at 731. “The concern with selecting venue is that parties will disrupt the statutory 11 scheme and […] the administration of justice […] to have their cause heard where they believe it 12 will be received most sympathetically. But it is not for the parties to set venue. That is the role of 13 the Legislature.” Id. at 731. However, “forum selection agreements ‘violate no such carefully 14 conceived statutory patterns.’” Id. (quoting Smith, Valentino & Smith, Inc. v. Sup. Ct., 17 Cal. 3d 15 491, 495 (1976)). Rather, courts give effect to forum selection clauses due to “commercial 16 considerations” in “national and international commerce,” namely to protect the parties’ agreed- 17 upon expectations and thereby remove “‘uncertainty and possibly great inconvenience.’” Id. 18 (quoting M/S BREMEN v. Zapata Off-Shore Co., 407 U.S. 1, 13–14 (1972)); see also 114 Cal. 19 App. 4th at 729–30 (noting the California Supreme Court in “Smith relied upon Bremen in 20 concluding that forum selection clauses were permissible in California”). 21 Here, Section 395(b) does not contemplate whether suits must be entertained in courts 22 “from […] different states or nations” or otherwise specify where a suit must be brought. Id. It 23 instead provides “the proper court for […] trial.” Cal. Code Civ. Pro § 395(b). Therefore, Section 24 395(b) is plainly a “venue clause” because it addresses “purely an intrastate issue involving the 25 selection of a county in which to hold the trial.” Alexander, 114 Cal. App. 4th at 727. Plaintiff 26 does not cite any California caselaw to the contrary. And because Section 395(b) is a venue 27 clause, as opposed to California’s “public policy of the forum in which the suit is brought,” it does 1 not render the forum selection clause here unenforceable. Argueta, 87 F.3d 320 at 325; see also 2 Jefferson v. Lux Grp. Holdings, Ltd., 2024 WL 5365063, at *2 (C.D. Cal. Nov. 5, 2024) (enforcing 3 a forum selection clause despite Section 395(c) because under Alexander, Section 395 “is a venue 4 provision, not a forum provision, and therefore only voids contractual provisions that override the 5 Legislature’s designation of the place for trial, and does not void forum selection provisions.”) 6 To the extent Abeyta v. DMCG, Inc., 2023 WL 2918741 (N.D. Cal. Apr. 12, 2023), holds 7 to the contrary, the Court is not persuaded. In Abeyta, “[t]he clause at issue [was] a venue 8 selection clause rather than a forum selection clause.” Id. at *2 n.2. Accordingly, the court 9 “use[d] both terms” interchangeably, id., even though California case law recognizes the 10 differences between forum clauses and venue clauses. See Alexander, 114 Cal. App. 4th at 723, 11 727, 731–33. Abeyta then held “[t]he venue clause contravenes a policy specifically related to 12 venue as set forth in Section 395(b)-(c).” 2023 WL 2918741, at *4 (cleaned up) (emphasis added). 13 At one point, Abeyta quotes Alexander’s sentence “[s]ince the venue statutes themselves declare 14 the public policy of this state with respect to the proper court for an action, agreements fixing 15 venue in some location other than that allowed by statute are a violation of that policy.” 2023 WL 16 2918741, at *4 (quoting 114 Cal. App. 4th at 731). But, read correctly, that sentence does not 17 hold a forum selection clause is unenforceable when it contradicts a statutory venue provision. 18 That sentence summarizes General Acceptance Corp. v. Robinson, 207 Cal. 286 (1929), which 19 held a venue selection clause is unenforceable when the clause violates California’s public policy 20 regarding venue. See Alexander, 114 Cal. App. 4th at 730; see also id. at 727–29 (describing 21 General Acceptance’s holding). Immediately after that sentence, Alexander explains how a 22 subsequent decision interpreting a forum selection clause, Smith, limited General Acceptance’s 23 reasoning to venue selection clauses: “[a]s Smith succinctly noted, forum selection agreements 24 ‘violate no such carefully conceived statutory patterns.’” Id. at 731 (quoting 17 Cal. 3d at 495); 25 see also 114 Cal. App. 4th at 728–29, 731 (“Smith also limited General Acceptance as follows: 26 ‘While [General Acceptance] is factually distinguishable and, accordingly, may be said to rest 27 upon policy considerations not involved in the present action, nevertheless to the extent that the 1 the extent Abeyta interprets California case law as holding a forum selection clause is 2 unenforceable when the clause violates a statutory venue provision, Abeyta is unpersuasive. 3 Accordingly, Plaintiff has not shown the forum selection clause is unenforceable. 4 D. The Section 1404(a) Public-Interest Factors Do Not Overwhelmingly Disfavor 5 Transfer 6 Because Plaintiff agreed to a forum selection clause, it is given “controlling weight in all 7 but the most exceptional cases” and the Court disregards Plaintiff’s choice of forum and only 8 considers public-interest factors. Atl. Marine Const., 571 U.S. at 63–64 (cleaned up). “As the 9 party acting in violation of the forum-selection clause, [Plaintiff] must bear the burden of showing 10 that public-interest factors overwhelmingly disfavor a transfer.” Id. at 67. Public-interest factors 11 “include ‘the administrative difficulties flowing from court congestion; the local interest in having 12 localized controversies decided at home; [and] the interest in having the trial of a diversity case in 13 a forum that is at home with the law.’” Id. at 62 n.6 (quoting Piper Aircraft Co. v. Reyno, 454 14 U.S. 235, 241 n.6 (1981)). Courts also consider which forum state “is most familiar with the 15 governing law[.]” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498–99 (9th Cir. 2000). 16 Plaintiff has not carried his burden of showing these factors “overwhelmingly disfavor a 17 transfer.” Atl. Marine Const., 571 U.S. at 67. The parties’ cited statistics suggest the Northern 18 District of California and the Eastern District of Michigan have comparable “administrative 19 difficulties flowing from court congestion.” Id. at 62 n.6 (cleaned up); (see Dkt. No. 22-1 at 23 20 (noting the two districts have a roughly 3-month difference in “time from filing to trial for civil 21 cases”); Dkt. No. 23 at 22 (noting a 0.7-month difference in “time from filing to disposition”).) 22 Additionally, both forum states have an interest in adjudicating the controversy; Plaintiff is a 23 California resident suing under California law and Defendant is a Michigan company. Plaintiff 24 emphasizes California has an interest in adjudicating California-law privacy claims and this 25 District has expertise in evaluating claims involving privacy and technology. Maybe, but those 26 interests do not “overwhelmingly disfavor” transfer because even assuming the Terms’ choice-of- 27 law provision does not apply, a federal court sitting in diversity jurisdiction, not a California state 1 Const., 571 U.S. at 67. 2 Given Plaintiff has not demonstrated the public-interest factors overwhelmingly disfavor a 3 || transfer, the parties’ forum selection clause is given “controlling weight” and transfer to the 4 || Eastern District of Michigan is appropriate. /d. at 63 (cleaned up). 5 CONCLUSION 6 For the reasons set forth above, the Court grants Defendant’s motion and transfers this case 7 || to the Eastern District of Michigan. Plaintiff assented to a valid, enforceable forum selection 8 clause and has not shown the public-interest factors overwhelmingly disfavor transfer. 9 This Order disposes of Docket No. 22. 10 IT IS SO ORDERED. 1] Dated: June 12, 2026
’ me a ACQUELINE SCOTT CORLE 14 United States District Judge
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