MURPHY, District Judge:
This case is before the Court on the motion to transfer brought by Defendant Facebook, Inc. ("Facebook") (Doc. 57). Plaintiffs E.K.D., by her next friend Melissa K. Dawes, and C.M.D., by his next friend Jennifer E. Deyong, who bring this action individually and on behalf of all others similarly situated, have responded to the motion to transfer. Having considered the matter carefully, the Court now rules as follows.
According to the record of this case, Facebook operates facebook.com, a free, Internet-based social networking site with over 153 million members in the United States; over fourteen million facebook.com users in the United States are under the age of eighteen. To join facebook.com, a user must provide his or her name, age, gender, and a valid e-mail address, and click a button leading to a message stating that "By clicking Sign Up, you are indicating that you have read and agree to" Facebook's Terms of Service ("TOS"), with a hyperlink to Facebook's TOS. Doc. 63 at 2 ¶ 6. Once registered, a facebook.com user receives a "profile" page, may upload a "profile photo" of himself or herself, and may connect with other facebook.com users by approving them as "friends." Also, facebook.com allows users to share information with friends. Users may "post" by adding text, images, videos, and hyperlinks to their own profile page, "check-in" by announcing their geographical
Facebook earns revenue primarily through the sale of targeted advertising that appears on facebook.com users' profile pages. Plaintiffs challenge one of Facebook's advertising services in particular, known as "sponsored stories," which Facebook launched on January 25, 2011, and which was enabled for all facebook.com users by default. A sponsored story is a form of paid advertisement that appears on a facebook.com user's profile page and that generally consists of another friend's name, profile picture, and an assertion that the person "likes" the advertiser. A sponsored story may be generated whenever a facebook.com user utilizes the website's post, like, or check-in features, or uses an application or plays a game that integrates with facebook.com, and the content relates to an advertiser in some way determined by Facebook. Thus, if a facebook.com user clicks on the "like" button on a company's website, the facebook.com user's user name and profile picture, which bears the user's likeness, will appear on the facebook.com pages of the user's friends in a sponsored story advertisement stating that the user likes the company, operating in effect as an endorsement by the facebook.com user of the company or its products and services to the facebook.com user's friends. Such sponsored story advertisements are more valuable than standard facebook.com advertisements, and Facebook profits from selling this added value to advertisers.
Users of facebook.com can modify the commercial use of their names and likenesses by Facebook, but they cannot opt out of the sponsored stories feature of the website entirely. Specifically, Facebook's TOS advise facebook.com users that "You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place." Doc. 63-1 at 4 § 10(1). Plaintiffs, who are minors residing in Illinois and users of facebook.com, allege that Facebook's practice of misappropriating their names and likenesses for commercial endorsements without their consent violates their right of privacy under the laws of various states. Federal subject matter jurisdiction is proper in this case on the basis of 28 U.S.C. § 1332, as amended by the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).
The proposed class is defined as follows:
Doc. 2 at 7 ¶ 24. Facebook in turn has moved for transfer of this case to the United States District Court for the Northern District of California pursuant to a forum-selection clause in Facebook's TOS. The clause advises users of facebook.com:
Doc. 63-1 at 5 § 15(1). Having set out the relevant background of this case, the Court will turn next to the merits of Facebook's motion for transfer of the case.
Before reaching the issue of the forum-selection clause in Facebook's TOS and the enforceability of the clause, the Court first must determine whether Facebook is barred from enforcing the forum-selection clause against Plaintiffs, who, as noted, are minors, by the doctrine of infancy. Certain categories of persons are held by the law to have no capacity, or only a limited capacity, to contract:
Restatement (Second) of Contracts § 12 (1981). The commentary to the Restatement notes that "[h]istorically, the principal categories of natural persons having no capacity or limited capacity to contract were married women, infants, and insane persons." Id. cmt. b. The doctrine of infancy is codified in California law. Under that law, "minors" are all persons under eighteen years of age. See Cal. Fam. Code § 6500. California law provides,
Cal. Fam. Code § 6701. The contracts enumerated in the statute are void, and no act of disaffirmance is required to avoid them. See Burnand v. Irigoyen, 30 Cal.2d 861, 186 P.2d 417, 419 (1947). Contracts that are not void under California law are voidable, and may be disaffirmed by the minor, either before majority or within a reasonable time thereafter. See Cal. Fam. Code § 6710. See also Berg v. Traylor, 148 Cal.App.4th 809, 56 Cal.Rptr.3d 140, 148 (2007) (a minor may disaffirm a contract by any act or declaration disclosing
As California law recognizes also, however, "the disability of infancy [is not] a `sword' rather than a `shield[.]'" Hastings v. Dollarhide, 24 Cal. 195, 216 (Cal. 1864). The infancy defense may not be used inequitably to retain the benefits of a contract while reneging on the obligations attached to that benefit. See, e.g., MacGreal v. Taylor, 167 U.S. 688, 701, 17 S.Ct. 961, 42 L.Ed. 326 (1897) ("To say that the consideration paid to [a minor] ... is not in her hands, when the money has been put into her property in conformity with the disaffirmed contract, and notwithstanding such property is still held and enjoyed by her, is to ... make the privilege of infancy a sword to be used to the injury of others, although the law intends it simply as a shield to protect the infant from injustice and wrong."). Thus, "[i]f an infant enters into any contract subject to conditions or stipulations, the minor cannot take the benefit of the contract without the burden of the conditions or stipulations." 5 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 9:14 (4th ed. 1993 & Supp. 2011) (collecting cases). California law is in accord with "the equitable principle that minors, if they would disaffirm a contract, must disaffirm the entire contract, not just the irksome portions." Holland v. Universal Underwriters Ins. Co., 270 Cal.App.2d 417, 75 Cal.Rptr. 669, 672 (1969). "[N]o person, whether minor or adult, can be permitted to adopt that part of an entire transaction which is beneficial, and reject its burdens. This commanding principle of justice is so well established, that it has become one of the maxims of the law.... [Minors] must either accept or repudiate the entire contract," and "they cannot retain [the contract's] fruits and at the same time deny its obligations." Peers v. McLaughlin, 88 Cal. 294, 26 P. 119, 120 (1891). "A party cannot apply to his own use that part of the transaction which may bring to him a benefit, and repudiate the other, which may not be to his interest to fulfill." Id. "[W]hat the rules of equity would not permit [minors] to do if they had attained their majority they cannot be permitted to do ... through their guardian ad litem." Id. See also Simmons v. Briggs, 69 Cal.App. 447, 231 P. 604, 611 (1924) (the recipient of a gift procured by another's fraud cannot raise infancy as a defense to the donor's action to rescind, although the recipient was a minor when the gift was executed, but retained the property after maturity).
In the specific context of forum-selection clauses, courts, including California courts, have readily declined to permit minors to accept the benefits of a contract, then seek to void the contract in an attempt to escape the consequences of a clause that does not suit them. For example, in Paster v. Putney Student Travel, Inc., No. CV 99-2062 RSWL, 1999 WL 1074120 (C.D.Cal. June 9, 1999), a sixteen-year-old high school student entered an agreement with a company to spend four weeks on an Indian reservation in Montana. See id. at *1. A term of the agreement provided, "I agree and consent to the jurisdiction of the courts of the State of Vermont, with venue in Windham County, Vermont or the United States District Court for the District of Vermont, for the resolution of all legal matters concerning this agreement or brought against Putney Student Travel, Inc., its officers, directors, agents, servants and employees." Id. The student later brought suit against the company in California for personal injuries she allegedly suffered during her stay on the reservation. As to the forum-selection clause in the agreement, the student argued that she was not bound by the agreement "because
Settled law holds that a mandatory forum-selection clause is "prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances." M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). With respect to the unreasonableness of a forum-selection clause,
Bonny v. Society of Lloyd's, 3 F.3d 156, 160 (7th Cir.1993) (citations, brackets, and quotation marks omitted). See also Hugel v. Corporation of Lloyd's, 999 F.2d 206, 210-11 (7th Cir.1993). This is true even if the contract was never negotiated and in effect was dictated by one party to the other party. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-95, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). A forum-selection clause is mandatory where its "language is obligatory" and "clearly manifests an intent to make venue compulsory and exclusive." Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 756 (7th Cir.1992). The clause at issue here provides, "You will resolve any claim, cause of action or dispute ... you have with us ... exclusively in a state or
The Court turns then to the matter of the reasonableness of the forum-selection clause contained in Facebook's TOS. Facebook's TOS, including the forum-selection clause at issue, are contained in a so-called "browsewrap agreement." Browsewrap agreements typically "involve a situation where notice on a website conditions use of the site upon compliance with certain terms or conditions, which may be included on the same page as the notice or accessible via a hyperlink." Southwest Airlines v. BoardFirst, L.L.C., Civil Action No. 3:06-CV-0891-B, 2007 WL 4823761, at *4 (N.D.Tex. Sept. 12, 2007). Thus, a party gives his or her assent simply by using the website. See id. (citing Pollstar v. Gigmania, Ltd., 170 F.Supp.2d 974, 981 (E.D.Cal.2000)). Because no affirmative action is required by the website user to agree to the terms of a contract other than his or her use of the website, the determination of the validity of a browsewrap contract depends on whether the user has actual or constructive knowledge of a website's terms and conditions. See id. at *5 (citing Mark A. Lemley, Terms of Use, 91 Minn. L. Rev. 459, 477 (Dec. 2006) ("Courts may be willing to overlook the utter absence of assent... when there are reasons to believe that the website user is aware of the website owner's terms.") (brackets omitted). Thus, absent a showing of actual knowledge of the terms by the webpage user, the validity of a browsewrap contract hinges on whether the website provided reasonable notice of the terms of the contract. In this instance, as noted, persons wishing to join facebook.com must attest that they have read Facebook's TOS, which are made available through a hyperlink. Also, Facebook's TOS are hyperlinked on every page accessed by a facebook.com user in underlined, blue text that contrasts with the white background of the hyperlink. Accordingly, the Court concludes that Plaintiffs were reasonably put on notice of Facebook's TOS. See PDC Labs., Inc. v. Hach Co., No. 09-1110, 2009 WL 2605270, at *3 (C.D.Ill. Aug. 25, 2009) (a browsewrap agreement was sufficiently conspicuous to users of a website where a hyperlink to the agreement was included on multiple pages of the website in underlined, blue, contrasting text). Whether or not Plaintiffs actually read Facebook's TOS is irrelevant, of course, to the matter
Second, the selected forum does not make it "so gravely difficult and inconvenient that [Plaintiffs] will for all practical purposes be deprived of [their] day in court." Bonny, 3 F.3d at 160. Plaintiffs' counsel, the Court is well aware, are sophisticated class-action attorneys who are accustomed to litigating throughout the United States. Anyhow, "additional expense does not necessarily invalidate a forum-selection clause[.]" Paper Express, 972 F.2d at 758. "Whatever inconvenience [Plaintiffs] would suffer by being forced to litigate in a court in [California] was foreseeable at the time that [they] agreed to" the forum-selection clause in Facebook's TOS. AAR Int'l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 526 (7th Cir.2001). The time for Plaintiffs to have considered whether the forum-selection clause in Facebook's TOS would terribly disadvantage them was when they agreed to the TOS. See Abbott Labs. v. Takeda Pharm. Co., 476 F.3d 421, 426 (7th Cir.2007) (when signing an agreement containing a forum-selection clause, the party attempting to evade the clause "could and no doubt did consider the potential inconvenience of litigating in Japan, but decided to risk it," and "is bound by its choice"); Bonny, 3 F.3d at 160 (requiring an American plaintiff to litigate in England as per a forum-selection clause was not unreasonable); Walker v. Carnival Cruise Lines, Inc., No. 87 C 115, 1987 WL 28413, at *2 (N.D.Ill. Dec. 22, 1987) (noting that "the cost of litigating far from home, and the loss of effectiveness which may occur when a party is required to rely on depositions, even video depositions, rather than live testimony to a jury" are not grounds to avoid a forum-selection clause). In any event, Plaintiffs do not claim that litigating in California would put them to unreasonable expense. See Faur v. Sirius Int'l Ins. Corp., 391 F.Supp.2d 650, 659 (N.D.Ill. 2005) (if a party fails to argue that enforcement of a forum-selection clause would cause the party financial hardship, the court may enforce the clause).
Finally, enforcing the forum-selection clause would not contravene any strong public policy of the State of Illinois. In general, the public policy of Illinois is gleaned from its statutes, judicial decisions, constitution, and the practices of its government officials. See American Home Assurance Co. v. Stone, 61 F.3d 1321, 1324-25 (7th Cir.1995) (citing Zeigler v. Illinois Trust & Sav. Bank, 245 Ill. 180, 91 N.E. 1041, 1046 (1910)); O'Hara v. Ahlgren, Blumenfeld & Kempster, 127 Ill.2d 333, 130 Ill.Dec. 401, 537 N.E.2d 730, 734 (1989); McClure Eng'g Assocs., Inc. v. Reuben H. Donnelley Corp., 95 Ill.2d 68, 69 Ill.Dec. 183, 447 N.E.2d 400, 402 (1983); Smith v. Board of Educ. of Oswego Cmty. High Sch. Dist., 405 Ill. 143, 89 N.E.2d 893, 896 (1950); Hyatte v. Quinn, 239 Ill.App.3d 893, 180 Ill.Dec. 427, 607 N.E.2d 321, 324 (1993). The enforcement of forum-selection clauses offends no public policy of Illinois. See Roberts & Schaefer Co. v. Merit Contracting, Inc., 99 F.3d 248, 252 (7th Cir.1996) (citing Calanca v. D & S Mfg. Co., 157 Ill.App.3d 85, 109 Ill.Dec. 400, 510 N.E.2d 21, 23 (1987)) ("Under Illinois law, a forum selection clause is enforceable except in exceptional circumstances."); Vencor, Inc. v. Webb, 33 F.3d 840, 844-45 (7th Cir.1994) ("Webb argues
The United States Court of Appeals for the Seventh Circuit routinely affirms the dismissal of lawsuits under Rule 12(b)(3) of the Federal Rules of Civil Procedure due to forum-selection clauses. However, most such decisions involve clauses that designate an arbitral forum, a state-court forum, or a foreign forum. See, e.g., Kochert v. Adagen Med. Int'l, Inc., 491 F.3d 674, 676 (7th Cir.2007) (the forum-selection clause at issue designated "the State Court of Fulton County, Georgia") (italics omitted); Abbott Labs., 476 F.3d at 422 (the forum-selection clause at issue designated Japan); Continental Cas. Co. v. American Nat'l Ins. Co., 417 F.3d 727, 733 (7th Cir. 2005) (the forum-selection clause at issue designated an arbitral forum); American Patriot Ins. Agency, Inc. v. Mutual Risk Mgmt., Ltd., 364 F.3d 884, 886 (7th Cir. 2004) (the forum-selection clause at issue designated Bermuda); Paper Express, 972 F.2d at 754-55 (the forum-selection clause at issue designated Germany). These decisions seem sensible to the Court: where the alternative forum designated by a forum-selection clause is not a federal court, a case cannot be transferred under 28 U.S.C. § 1404 or, assuming that venue were not otherwise proper under 28 U.S.C. § 1391 or some other federal venue statute, 28 U.S.C. § 1406, and if dismissal were not an option, the forum-selection clause would be meaningless.
However, where, as here, a forum-selection clause designates both a state and a federal court as a proper forum, a court may consider whether transfer is appropriate under 28 U.S.C. § 1404. See In re LimitNone, LLC, 551 F.3d 572, 575-76 (7th Cir.2008) (noting that "the district court mischaracterized the transfer as one under [28 U.S.C.] § 1406(a) when it was 28 U.S.C. § 1404(a) that provided the necessary authority," and affirming transfer under Section 1404); Salovaara v. Jackson Nat'l Life Ins. Co., 246 F.3d 289, 299 (3d Cir.2001) ("[T]here is nothing ... that precludes a district court, faced with a Rule 12 motion based on a forum selection clause, from considering § 1404 factors to determine whether transfer is the better course.") (emphasis in original); Digital Envoy, Inc. v. Google, Inc., 319 F.Supp.2d 1377, 1378-79 (N.D.Ga.2004) (the district court rejected the defendant's attempt to dismiss the case pursuant to
The Supreme Court of the United States has held that a "forum-selection clause, which represents the parties' agreement as to the most proper forum, should receive neither dispositive consideration... nor no consideration ..., but rather the consideration for which Congress provided in [28 U.S.C.] § 1404(a)." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). In the Seventh Circuit, the "consideration for which Congress provided in § 1404(a)" has been held to reflect the view set forth by Justice Kennedy's concurring opinion in Stewart, namely, that "a valid forum-selection clause is given controlling weight in all but the most exceptional cases." Id. at 33, 108 S.Ct. 2239 (Kennedy, J., concurring). See also Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1290-91 (7th Cir.1989) (quoting M/S Bremen, 407 U.S. at 15, 92 S.Ct. 1907) ("[A] forum-selection clause should control unless there is a `strong showing that it
Northwestern Nat'l Ins. Co. v. Donovan, 916 F.2d 372, 378 (7th Cir.1990) (citations omitted). The "strong presumption" in favor of enforcing a valid forum-selection clause
IFC Credit Corp. v. Aliano Bros. Gen. Contractors, Inc., 437 F.3d 606, 613 (7th Cir.2006) (citation and quotation marks omitted). Thus, the inconvenience to Plaintiffs of litigating in the Northern District of California is irrelevant under Section 1404(a). The only basis for declining to enforce a forum-selection clause is when transfer "would impose significant costs on third parties or on the judicial system." Abbott Labs., 476 F.3d at 423. See also IFC Credit, 437 F.3d at 613 (a forum-selection clause's presumption of validity is overcome when "there is inconvenience to some third party ... or to the judicial system itself") (quotation omitted). Plaintiffs have identified no non-party witnesses residing in Illinois and, if any such witnesses exist, Plaintiffs do not say what testimony these witnesses would give. See Moore v. Motor Coach Indus., Inc., 487 F.Supp.2d 1003, 1008 (N.D.Ill.2007) (a party seeking to avoid transfer under a forum-selection clause must provide "affidavits or other actual evidence specifying third-party witnesses and their purported testimony"). In any event, Illinois nonparties are beyond the subpoena power of the Northern District of California, so if they are called as witnesses, they will have the option of being deposed in Illinois rather than in California; in fact, Facebook has stipulated that any witnesses, party or non-party, residing in Illinois will be deposed in Illinois, not California, so that transferring this case cannot impose any significant inconvenience on Illinois witnesses. Finally, Plaintiffs offer no plausible reason why transfer would subject the judicial system to significant costs or "interfere with the orderly allocation of judicial business." Donovan, 916 F.2d at 376. The forum-selection clause in Facebook's TOS will be enforced by transferring this case to the Northern District of California under Section 1404(a).
Facebook's motion for transfer (Doc. 57) is