Forum Selection Clause Requires Dismissal of VPPA Case, Says Newsweek

Emma Mendoza’s class action alleging Newsweek Digital violates the Video Privacy Protection Act should be dismissed, said the defendant’s motion Thursday (docket 1:23-cv-00643) in U.S. District Court for Southern New York in Manhattan. Mendoza’s Jan. 25 complaint alleges Newsweek Digital unlawfully tracks and discloses to Facebook its subscribers’ viewed video media and Facebook IDs without their consent (see 2301260043).

As grounds for dismissal, Mendoza “entered into a binding and enforceable agreement with Newsweek containing a forum selection clause giving the courts of England and Wales exclusive jurisdiction over this dispute,” said the motion. Her complaint also fails to state a claim on which relief can be granted, it said.

Newsweek Digital moves to dismiss under the doctrine of forum non conveniens and Federal Rule 12(b)(6), said a memorandum of law in support of the motion. The doctrine refers to a court's discretionary power to decline to exercise its jurisdiction where another court, or forum, may more conveniently hear a case. The forum selection clause that Mendoza agreed to requires dismissal of her lawsuit, said the memorandum.

Mendoza’s “threadbare” complaint also doesn’t satisfy U.S. Supreme Court precedent in its 2007 decision in Bell Atlantic v. Twombly because it doesn’t plead facts showing that Newsweek Digital is a videotape service provider under the VPPA, said the memorandum. Though Twombly was an antitrust case unrelated to the VPPA that was enacted 19 years earlier, the decision heightened the pleading requirement for federal civil cases by requiring plaintiffs to include enough facts in their complaints to make it plausible, not just possible or conceivable, that they will be able to prove facts to support their claims.

The complaint “indisputably demonstrates” Mendoza and other Newsweek Digital subscribers “entered into an online agreement as a condition of their subscription to content on Newsweek’s website,” said the motion. The forum selection clause in that online agreement “clearly and conspicuously” gave exclusive jurisdiction of any disputes to the courts of England and Wales, it said. “New York courts routinely enforce online agreements, including clickwrap agreements, under the principles of contract law,” it said. “The agreement should be honored here.”

That a user must click a hyperlink to review the terms and conditions of the online agreement doesn’t affect “their clarity and conspicuousness because the hyperlink would place a reasonably prudent user on inquiry notice,” said the memorandum. Southern District of New York precedent holds that terms and conditions may be binding and enforceable even if they are only accessible through a hyperlink, it said.

The 2nd U.S. Circuit Appeals Court’s 2017 decision in Meyer v. Uber Technologies “is controlling,” said the memorandum. The court held that Uber’s terms of use, and the arbitration clause contained in them, “were binding because the plaintiff had reasonable notice of them whether or not he actually read them,” it said. “Here, the complaint shows the same.”