FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOE 1, DOE 2, and KASADORE
RAMKISSOON, on behalf of
themselves and all others similarly No. 07-15323
situated,
Plaintiffs-Appellants, D.C. No.
CV-06-05866-SBA
v. OPINION
AOL LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
December 6, 2007—San Francisco, California
Filed January 16, 2009
Before: Dorothy W. Nelson, Stephen Reinhardt, and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge D.W. Nelson;
Concurrence by Judge Bea
683
686 DOE 1 v. AOL LLC
COUNSEL
Joseph J. Tabacco, Jr., Christopher T. Heffelfinger, Berman
DeValerio Pease Tabacco Burt & Pucillo, San Francisco, Cal-
ifornia; C. Oliver Burt, III, Berman DeValerio Pease Tabacco
Burt & Pucillo, West Palm Beach, Florida; Richard R. Wiebe,
Law Office of Richard R. Wiebe, San Francisco, California;
and James K. Green, James K. Green, P.A., West Palm
Beach, Florida, for the plaintiffs-appellants.
Patrick J. Carome, Samir C. Jain, D. Hien Tran, Wilmer Cut-
ler Pickering Hale and Dorr LLP, Washington, D.C., for the
defendant-appellee.
OPINION
PER CURIAM:
On July 31, 2006, AOL LLC (formerly America Online,
Inc.) made publicly available the internet search records of
more than 650,000 of its members. The records contained per-
sonal and sometimes embarrassing information about the
members. Plaintiffs, members of AOL, brought an action in
federal district court in California on behalf of themselves and
a putative nationwide class of AOL members, alleging viola-
tions of federal electronic privacy law, 18 U.S.C. § 2702(a).
A subclass of AOL members who are California residents
also alleged various violations of California law, including the
California Consumers Legal Remedies Act, California Civil
Code § 1770.
DOE 1 v. AOL LLC 687
Under the AOL Member Agreement, all plaintiffs agreed to
a forum selection clause that designates the “courts of Virgin-
ia” as the fora for disputes between AOL and its members.
The Member Agreement also contains a choice of law clause
designating Virginia law to govern disputes.
AOL moved to dismiss the action for improper venue pur-
suant to Federal Rule of Civil Procedure 12(b)(3), on the basis
of the parties’ forum selection clause. AOL contends the
clause permits plaintiffs to refile their consumer class action
in state or federal court in Virginia. Plaintiffs contend the
forum selection clause limits them to Virginia state court,
where a class action remedy would be unavailable to them;
this, they contend, violates California public policy favoring
consumer class actions and renders the forum selection clause
unenforceable.
The district court granted AOL’s motion and dismissed the
action without prejudice to plaintiffs refiling it in a state or
federal court in Virginia. We hold the district court erred
when it interpreted the forum selection clause to permit
actions in either state or federal court in Virginia; the plain
language of the clause—courts “of” Virginia—demonstrates
the parties chose Virginia state courts as the only fora for any
disputes. We reverse and remand for further proceedings.
I.
A. The Complaint
Plaintiffs Kasadore Ramkissoon and Doe 1 and Doe 2,1
members of AOL, filed a class action complaint in the District
1
Plaintiffs and AOL filed a joint stipulation and proposed order to allow
Doe 1 and Doe 2 to proceed anonymously, because of the sensitive nature
of the personal information Doe 1 and Doe 2 claim AOL publicly dis-
closed about them. The district court granted the motion, which ruling is
not at issue on appeal.
688 DOE 1 v. AOL LLC
Court for the Northern District of California against AOL on
behalf of themselves and a nationwide putative class of AOL
members. The complaint alleges Ramkissoon currently is a
resident of New York, while Doe 1 and Doe 2 currently are
residents of California. The complaint does not state when
Doe 1 and Doe 2 became residents of California, where they
resided when they entered into the Member Agreement with
AOL, or where they resided when they used AOL’s services.
AOL provides its members with access to the Internet and
a variety of related features, including search tools and secur-
ity features. The complaint alleges that on July 31, 2006,
“roughly twenty million AOL Internet search records were
packaged into a database” and made publicly available for
download for a period of approximately ten days. The data
consisted of the records of which internet sites were visited by
nearly 658,000 AOL members who conducted such visits
from approximately March 2006 through May 2006. AOL
does not contest this occurrence.
The complaint alleges the data contained the addresses,
phone numbers, credit card numbers, social security numbers,
passwords and other personal information of AOL members.
Plaintiffs also allege the searches reveal members’ “personal
struggles with various highly personal issues, including sexu-
ality, mental illness, recovery from alcoholism, and victimiza-
tion from incest, physical abuse, domestic violence, adultery,
and rape,” by revealing their Internet searches for information
on these issues. Although AOL admitted it made a “mistake”
and took down the data, “mirror” websites appeared on the
internet that reproduced the data. Some of these websites
present the data in a searchable form and others “invite the
public to openly criticize and pass judgment on AOL mem-
bers based on their searches.”
Plaintiffs’ complaint alleges seven causes of action. Two of
the causes of action—violation of the federal Electronic Com-
DOE 1 v. AOL LLC 689
munications Privacy Act, 18 U.S.C. § 2702(a),2 and unjust
enrichment under federal common law—are brought on
behalf of all plaintiffs and the putative nationwide class.
The other five causes of action are brought under California
statutory and common law. Doe 1 and Doe 2 bring these
claims on behalf of the putative sub-class of AOL members
who are California residents. They allege AOL violated the
following California statutes: (1) the California Consumers
Legal Remedies Act (CLRA),3 which prohibits unfair meth-
ods of competition and unfair or deceptive acts or practices
resulting in the sale of goods or services; (2) the California
Customer Records Act,4 which requires businesses to destroy
customers’ records that are no longer to be maintained, and
requires businesses to maintain security procedures to protect
customers’ personal information; (3) California False Adver-
tising law;5 and (4) California Unfair Competition law,6 which
prohibits unfair, unlawful, and fraudulent business practices.
These California plaintiffs also allege AOL committed the tort
of public disclosure of private facts under California common
law.
B. The Forum Selection and Choice of Law Clause
AOL’s headquarters are located in Dulles, Virginia. All
members of AOL’s online service, including all plaintiffs and
putative class members, must agree to the AOL Member
Agreement as a prerequisite to register for AOL service. Each
member must click on a box that states the member has
2
18 U.S.C. § 2702(a) prohibits an entity that provides an electronic
communications service or remote computing service from knowingly
divulging, except in certain circumstances, the contents of an electronic
communication or a record or other information about a subscriber.
3
Cal. Civ. Code § 1770.
4
Cal. Civ. Code § 1798.81.
5
Cal. Bus. & Prof. Code § 17500 et seq.
6
Cal. Bus. & Prof. Code § 17200 et seq.
690 DOE 1 v. AOL LLC
agreed to the terms of the Member Agreement before he can
complete his registration.
The Member Agreement contains a choice of law clause
that designates Virginia law, excluding its conflict-of-law
rules. It also contains a forum selection clause that designates
the “courts of Virginia” as the fora for disputes between AOL
and its members. The choice of law and forum selection
clause of the Member Agreement in effect during the time
period relevant to the complaint—January 1, 2004 through
September 22, 2006—states in its entirety:
The laws of the Commonwealth of Virginia, exclud-
ing its conflicts-of-law rules, govern this Member
Agreement and your membership. You expressly
agree that exclusive jurisdiction for any claim or dis-
pute with AOL or relating in any way to your mem-
bership or your use of the AOL Services resides in
the courts of Virginia and you further agree and
expressly consent to the exercise of personal juris-
diction in the courts of Virginia in connection with
any such dispute including any claim involving AOL
or AOL Services. The foregoing provision may not
apply to you depending on the laws of your jurisdic-
tion. This Agreement shall not be governed by the
United Nations Convention on Contracts for the
International Sale of Goods.
C. District Court Order
Based on the forum selection clause, AOL moved to dis-
miss the action for improper venue under Federal Rule of
Civil Procedure 12(b)(3) (“Rule 12(b)(3)”), or, alternatively,
to transfer venue to the District Court for the Eastern District
of Virginia pursuant to 28 U.S.C. § 1406(a).7 The district
7
28 U.S.C. § 1406(a) states: “The district court of a district in which is
filed a case laying venue in the wrong division or district shall dismiss, or
if it be in the interest of justice, transfer such case to any district or divi-
sion in which it could have been brought.”
DOE 1 v. AOL LLC 691
court granted AOL’s Rule 12(b)(3) motion to dismiss and
adopted AOL’s proposed order in its entirety. The district
court held the forum selection clause “expressly requires that
this controversy be adjudicated in a court in Virginia” and that
“[p]laintiffs agreed the courts of Virginia have ‘exclusive
jurisdiction’ over any claims or disputes with AOL, and venue
in the Northern District of California is improper.” The order
dismissed plaintiffs’ complaint “without prejudice to the refil-
ing of their claims in a state or federal court in Virginia.”
II.
We review a district court’s order enforcing a contractual
forum selection clause and dismissing a case for improper
venue for abuse of discretion. Argueta v. Banco Mexicano,
S.A., 87 F.3d 320, 323 (9th Cir. 1996). Where the interpreta-
tion of contractual language in a forum selection clause does
not turn on the credibility of extrinsic evidence but on an
application of the principles of contract interpretation, we
review the district court’s interpretation de novo. Hunt Wes-
son Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir.
1987).
A motion to enforce a forum selection clause is treated as
a motion to dismiss pursuant to Rule 12(b)(3); pleadings need
not be accepted as true, and facts outside the pleadings may
be considered. Argueta, 87 F.3d at 324.
III.
As a threshold matter, the parties dispute the meaning of
the forum selection clause, specifically the phrase “exclusive
jurisdiction . . . resides in the courts of Virginia.” AOL claims
the phrase “courts of Virginia” refers to state and federal
courts in Virginia, while plaintiffs claim it refers to Virginia
state courts only. We agree with plaintiffs’ interpretation.
[1] We apply federal law to the interpretation of the forum
selection clause. Manetti-Farrow, Inc. v. Gucci Am., Inc., 858
692 DOE 1 v. AOL LLC
F.2d 509, 513 (9th Cir. 1988). When we interpret a contract
under federal law, we look for guidance “to general principles
for interpreting contracts.” Klamath Water Users Protective
Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999).
[2] “Contract terms are to be given their ordinary meaning,
and when the terms of a contract are clear, the intent of the
parties must be ascertained from the contract itself. Whenever
possible, the plain language of the contract should be consid-
ered first.” Id. (internal citation omitted). We apply the “pri-
mary rule of interpretation . . . that the common or normal
meaning of language will be given to the words of a contract
unless circumstances show that in a particular case a special
meaning should be attached to it.” Hunt Wesson Foods, Inc.,
817 F.2d at 77 (internal quotation marks and alteration omit-
ted). We read a written contract as a whole, and interpret each
part with reference to the whole. Klamath Water Users Pro-
tective Ass’n, 204 F.3d at 1210. That the parties dispute a con-
tract’s meaning does not render the contract ambiguous; a
contract is ambiguous “if reasonable people could find its
terms susceptible to more than one interpretation.” Id.
[3] The district court, without discussion, interpreted the
forum selection clause to refer to state and federal courts of
Virginia. We determine the meaning of the phrase “courts of
Virginia” de novo, Hunt Wesson Foods, Inc., 817 F.2d at 77,
and look first to its plain meaning. We have not previously
addressed the meaning of a forum selection clause designating
the courts “of,” rather than “in,” a state. We hold that the
forum selection clause at issue here—designating the courts
of Virginia—means the state courts of Virginia only; it does
not also refer to federal courts in Virginia.
[4] The clause’s use of the preposition “of”—rather than
“in”—is determinative. Black’s Law Dictionary defines “of”
as a term “denoting that from which anything proceeds; indi-
cating origin, source, descent, and the like . . . .”8 Black’s Law
8
In contrast, the proposition “in” “express[es] relation of presence, exis-
tence, situation, inclusion, action, etc.; inclosed or surrounded by limits,
DOE 1 v. AOL LLC 693
Dictionary 1080 (6th ed. 1990). Thus, courts “of” Virginia
refers to courts proceeding from, with their origin in, Virginia
—i.e., the state courts of Virginia. Federal district courts, in
contrast, proceed from, and find their origin in, the federal gov-
ernment.9
Our interpretation finds support among opinions by our sis-
ter circuits who have addressed the meaning of forum selec-
tion clauses designating the “courts of” a state—all of whom
have interpreted such clauses to refer to the state courts of the
designated state, and not also to the federal courts in the des-
ignated state. See Am. Soda, LLP v. U.S. Filter Wastewater
Group, Inc., 428 F.3d 921, 926 (10th Cir. 2005) (interpreting
“Courts of the State of Colorado” to mean Colorado state
courts; the clause “refers to sovereignty rather than geogra-
phy”); Dixon v. TSE Int’l Inc., 330 F.3d 396, 398 (5th Cir.
2003) (interpreting “Courts of Texas, U.S.A.” to mean Texas
state courts; “[f]ederal district courts may be in Texas, but
they are not of Texas”); LFC Lessors, Inc. v. Pac. Sewer
Maint. Corp., 739 F.2d 4, 7 (1st Cir. 1984) (interpreting
forum selection and choice of law clause stating the contract
shall be interpreted according to “the law, and in the courts,
of the Commonwealth of Massachusetts” to designate the
state courts of Massachusetts; “the word ‘of’ as it appears in
the phrase in question must have been intended to restrict the
meaning of both ‘law’ and ‘courts’ to those that trace their
origin to the state.”).
as in a room; also meaning for, in and about, on, within etc. . . . .” Black’s
Law Dictionary 758 (6th ed. 1990).
9
Reading the forum selection and choice of law clause as a whole fur-
ther supports this reasonable interpretation. See Klamath Water Users Pro-
tective Ass’n, 204 F.3d at 1210. The clause contains both a forum selection
provision by which the parties agreed to the “courts of Virginia” as the
fora for their disputes, and a choice of law provision by which the parties
agreed to apply the “laws of the Commonwealth of Virginia.” The state
courts of Virginia are the ultimate determiners of the “laws of the Com-
monwealth of Virginia”; a federal court in Virginia merely follows Vir-
ginia law.
694 DOE 1 v. AOL LLC
[5] Accordingly, we hold the plain meaning of the forum
selection clause’s designation of the “courts of Virginia” is
the state courts of Virginia; it does not include federal district
courts located in Virginia.10
IV.
Having interpreted the AOL forum selection clause to des-
ignate Virginia state courts, we turn to the enforceability of
the clause.
Plaintiffs contend the forum selection clause so construed
is unenforceable as a matter of federal law, because it violates
California public policy against waivers of class action reme-
dies and rights under the California Consumers Legal Reme-
dies Act. AOL, however, steadfastly has asserted the forum
selection clause permits plaintiffs to maintain an action in fed-
eral court in Virginia, where plaintiffs could pursue their con-
sumer class action remedies. AOL has raised no contention
that the forum selection clause, construed to mean only Vir-
ginia state courts, nevertheless is enforceable and does not
violate California public policy.
[6] We apply federal law to determine the enforceability of
the forum selection clause. Manetti-Farrow, 858 F.2d at 513.
A forum selection clause is presumptively valid; the party
seeking to avoid a forum selection clause bears a “heavy bur-
den” to establish a ground upon which we will conclude the
clause is unenforceable. M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 17 (1972). Under the directives of the Supreme
Court in Bremen, we will determine a forum selection clause
10
We find no ambiguity in the forum selection clause. Even if we did
find the phrase ambiguous, we would interpret it in plaintiffs’ favor. The
parties produced no other evidence of their expressed intent. Accordingly,
we would construe the contract against AOL as the drafter and adopt
plaintiffs’ reasonable interpretation of the phrase to mean the state courts
of Virginia. See InterPetrol Bermuda Ltd v. Kaiser Aluminum Int’l Corp.,
719 F.2d 992, 998 (9th Cir. 1984).
DOE 1 v. AOL LLC 695
is unenforceable “if enforcement would contravene a strong
public policy of the forum in which suit is brought, whether
declared by statute or by judicial decision.” Id. at 15 (empha-
sis added).
California has declared “by judicial decision” the same
AOL forum selection clause at issue here contravenes a strong
public policy of California—as applied to California residents
who brought claims under California statutory consumer law
in California state court. In America Online, Inc. v. Superior
Court of Alameda County (Mendoza), 108 Cal. Rptr. 2d 699
(Cal. Ct. App. 2001), Mendoza, a California resident and
member of AOL, brought a putative class action on behalf of
AOL members in California state court, alleging violations of
California state law, to wit: the California Consumers Legal
Remedies Act, the California Unfair Business Practices Act,
and common law conversion and fraud. Mendoza, 108 Cal.
Rptr. 2d at 702.
AOL moved to dismiss Mendoza’s action based on its
forum selection clause designating the “courts of Virginia.”
Id. at 701-02. The state trial court denied AOL’s motion,
holding the forum selection clause was unenforceable because
it “diminished” the rights of California consumers, and reme-
dies available in Virginia were not “comparable” to those in
California.11 Id. at 703.
AOL filed a petition for writ of mandamus. The California
Court of Appeal denied the writ, thereby leaving in place the
trial court’s denial of AOL’s motion to dismiss. Relevant to
the instant appeal, the California Court of Appeal held the
11
The trial court also denied AOL’s motion on the basis the forum selec-
tion clause was unconscionable under California law because the clause
was not negotiated, was contained in a standard form contract, and “was
in a format that was not readily identifiable by Mendoza.” Id. at 703. The
Court of Appeal did not reach the trial court’s unconscionability ruling,
because it affirmed on other grounds. Id. at 713 n.17.
696 DOE 1 v. AOL LLC
AOL forum selection clause was unenforceable, because the
clause violated California public policy on two grounds: (1)
enforcement of the forum selection clause violated California
public policy that strongly favors consumer class actions,
because consumer class actions are not available in Virginia
state courts, id. at 712;12 and (2) enforcement of the forum
selection clause violates the anti-waiver provision of the Con-
sumer Legal Remedies Act (CLRA), id. at 710, which states
“[a]ny waiver by a consumer of the provisions of this title is
contrary to public policy and shall be unenforceable and
void.” Cal. Civ. Code § 1751. The state Court of Appeal held
the forum selection clause, together with the choice of law
provision, effect a waiver of statutory remedies provided by
the CLRA in violation of the anti-waiver provision, as well as
California’s “strong public policy” to “protect consumers
against unfair and deceptive business practices.”13 Mendoza,
108 Cal. Rptr. 2d at 710.
[7] We agree with plaintiffs that Mendoza is the kind of
declaration “by judicial decision” contemplated by Bremen.
Mendoza found a California public policy against consumer
12
The California Court of Appeal expressed “the importance class
action consumer litigation has come to play” in California and noted Cali-
fornia courts have “extolled” “the right to seek class action relief in con-
sumer cases.” Mendoza, 108 Cal. Rptr. 2d at 712. In Virginia state court,
in contrast, class action relief for consumer claims is unavailable. Id.; Kent
Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 3.11 (4th
ed. 2003) (Virginia “does not have a statute or rule authorizing a ‘class
action’ comparable to such proceedings under Rule 23 of the Federal
Rules of Civil Procedure or the statutes and rules of most sister states.”)
(emphasis in original).
13
The California Court of Appeal noted its conclusion on this point was
“reinforced by a statutory comparison of California and Virginia consumer
protection laws, which reveals Virginia’s law provides significantly less
consumer protection to its citizens than California law provides for our
own.” Id. at 710. Specifically, the court noted Virginia consumer protec-
tion law has a shorter statute of limitations, has a lower required minimum
recovery amount, and does not provide the enhanced remedies for disabled
and senior citizens which the CLRA provides. Id.
DOE 1 v. AOL LLC 697
class action waivers and waivers of consumer rights under the
CLRA that California public policy applies to California resi-
dents bringing class action claims under California consumer
law. As to such California resident plaintiffs, Mendoza holds
California public policy is violated by forcing such plaintiffs
to waive their rights to a class action and remedies under Cali-
fornia consumer law.
[8] Accordingly, the forum selection clause in the instant
member agreement is unenforceable as to California resident
plaintiffs bringing class action claims under California con-
sumer law.14
REVERSED and REMANDED.15
D.W. Nelson, Senior Circuit Judge, and Reinhardt, Circuit
Judge, concurring:
Plaintiffs Doe 1 and 2 have alleged sufficient facts to
invoke California’s public policy. California courts have
made clear that they will “refuse to defer to the selected
forum if to do so would substantially diminish the rights of
California residents in a way that violates our state’s public
policy.” Mendoza, 108 Cal. Rptr. 2d 699, 707 (Cal. 2001)
(emphasis added). In this case, plaintiffs, who allege that they
were California residents at the time of the filing of the com-
plaint, are bringing claims under California’s consumer pro-
tection statutes, while the defendant seeks to enforce the same
AOL contract by relying on the exact contract provisions that
14
The members of this panel, however, disagree as to whether the plain-
tiffs in the instant case have established the AOL forum selection clause
is unenforceable as to them, or whether further development of the record
is necessary on remand.
15
Plaintiffs’ requests for judicial notice of an AOL memorandum of law
in an unrelated litigation and an AOL press release stating AOL will move
its headquarters to New York are denied as moot.
698 DOE 1 v. AOL LLC
Mendoza refused to apply. Nothing in California law suggests
that a plaintiff must have been a resident for any period of
time before invoking California’s public policy. To the con-
trary, being a resident at the time the complaint is filed is suf-
ficient. See id. at 708, 709 (evaluating the effect of the forum
selection clause on the rights of “California residents”).
As the per curiam opinion recognizes, California’s Con-
sumer Legal Remedies Act states that “[a]ny waiver by a con-
sumer of the provisions of this title is contrary to public
policy and shall be unenforceable and void.” Cal. Civ. Code
§ 1751. California public policy is offended by any clause that
would require the plaintiffs, being California residents, to pur-
sue their claims in a forum that does not permit class actions.
This is true regardless of whether plaintiffs’ rights are waived
directly by a forum selection clause or indirectly, as our col-
league proposes, through conflicts of law analysis. As Men-
doza made clear, “Enforcement of the contractual forum
selection and choice of law clauses would be the functional
equivalent of a contractual waiver of the consumer protections
under the CLRA and, thus, is prohibited under California
law.” Mendoza, 108 Cal. Rptr. 2d at 702 (emphasis added).
As a result, no further pleadings are necessary. Any purported
waiver of the rights of a California consumer is unenforce-
able.
Our colleague has created a pleading requirement premised
on a supposed distinction between California “consumers”
and California “residents.” However, Mendoza treats Califor-
nia consumers and California residents as interchangeable,
making it clear that, at least for the purposes of the California
Consumers Legal Remedies Act, no such distinction exists
under California law. This is not surprising given that it is dif-
ficult, if not impossible, to reside somewhere without also
consuming there. Every California resident is a California
consumer. Moreover, the California courts have never applied
a pleading requirement such as that proposed by our col-
league. If California wishes to adopt such a requirement, its
DOE 1 v. AOL LLC 699
courts are free to do so. However, as a federal court sitting in
diversity jurisdiction, we apply, but do not create, state law.
See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Thus, we
may not do so here.
We would add that we do not share our colleague’s fear
that there will be a rush by out-of-staters to establish Califor-
nia residency in order to file consumer class actions—that we
face a new “Gold Rush.” No such rush has occurred in the
past despite the state’s policy designed to protect California
consumers’ right to file class actions in cases of fraud or “un-
fair and deceptive business practices.” Mendoza, 108 Cal.
Rptr. 2d at 710.1 The chain of horrors tactic is not a credible
one as urged in this case. There are far better reasons to move
to the Golden State than are conjured up here by our imagina-
tive and creative colleague.
BEA, Circuit Judge, concurring:
I concur in the court’s judgment reversing the district
court’s dismissal order and remanding for further proceed-
ings. However, I would remand to allow the plaintiffs an
opportunity to plead and prove facts to establish California
law and public policy apply to their action and that, therefore,
California public policy is violated by enforcement of the
AOL contractual forum selection clause.
California has a public policy against the waiver of the
class action procedural mechanism by California consumers,
as well as the waiver of consumer rights under the California
Consumer Legal Remedies Act (CLRA). But that public pol-
1
Judge Bea’s reliance on the example of Seymour Lazar is entirely out
of place. Mr. Lazar was a Californian from childhood. See Rhonda L.
Rundle, “Legal Setback: A Career in Courts Leads to Trouble For Sey-
mour Lazar,” Wall St. J., Jan. 19, 2006, at A1.
700 DOE 1 v. AOL LLC
icy applies to California consumers bringing class action
claims under California consumer law. It is not a foregone
conclusion that the AOL forum selection clause (or, for that
matter, the choice of law clause) is unenforceable as to plain-
tiffs. For the forum selection and the choice of law clauses to
be unenforceable, plaintiffs must establish they are protected
by California law and public policy.
As the California Supreme Court has explained, a con-
sumer class action waiver violates California public policy if
it is unconscionable because it operates as an exculpatory
clause, exempting a defendant from liability—to the extent
the obligation at issue is governed by California law. See Dis-
cover Bank v. Superior Court, 113 P.3d 1100, 1109 (Cal.
2005) (“Such one-sided, exculpatory contracts in a contract of
adhesion, at least to the extent they operate to insulate a party
from liability that otherwise would be imposed under Califor-
nia law, are generally unconscionable.” (emphasis added)).
Where, however, liability is not controlled by California law
—for example because a valid choice of law provision or con-
flict of laws principles dictate the application of the laws of
another state or country—California’s public policy against
consumer class action waivers is not implicated. See id.
Moreover, enforcement of the AOL forum selection and
choice of law clause violates the CLRA statutory anti-waiver
provision, California Civil Code § 1751, only if plaintiffs are
California consumers who otherwise would be protected by
California law. See Cal. Civ. Code § 1751 (“Any waiver by
a consumer of the provisions of this title is contrary to public
policy and shall be unenforceable and void.”). If plaintiffs
have no contacts with California and are not covered by the
CLRA, they have no protection under the California law
“which would otherwise govern”; hence, they have nothing to
waive. See Am. Online Inc. v. Mendoza, 108 Cal. Rptr. 2d
699, 706, 708-09 (Cal. App. 1st Dist. 2001).
DOE 1 v. AOL LLC 701
Based on the allegations in plaintiffs’ complaint, however,
it is not clear whether they are California consumers protected
by California law.1 Plaintiffs’ complaint, as it currently
stands, is devoid of factual allegations that would support a
conclusion that California law would apply, notwithstanding
the Virginia choice of law provision. Plaintiffs’ complaint
alleges Doe 1 and Doe 2 “currently”—as of the time they
filed their complaint—are residents of California. It further
alleges the “California subclass” of plaintiffs is comprised of
“AOL members in the State of California.” The complaint is
silent as to the place of the contracting, the place where the
contract was negotiated, the place where the contract was per-
1
To determine whether California or Virginia law would apply, we
would apply federal conflict of law rules, as set forth in the Restatement
(Second) of Conflicts of Laws. See Huynh v. Chase Manhattan Bank, 465
F.3d 992, 997 (9th Cir. 2006). Under the Restatement, the parties’ chosen
law of Virginia will apply unless either (a) Virginia has no substantial
relationship to the parties or transaction and there is no other reasonable
basis for the parties’ choice of law, or (b) application of Virginia law
“would be contrary to a fundamental policy of a state which has a materi-
ally greater interest than the chosen state in the determination of the partic-
ular issue and which, under the rule of [Restatement (Second) of Conflict
of Laws] § 188, would be the state of the applicable law in the absence
of an effective choice of law by the parties.” Restatement (Second) of
Conflict of Laws § 187 (1971). Plaintiffs do not claim Virginia has no sub-
stantial relation to the transaction; after all, Virginia is where AOL has its
principal place of business. See Discover Bank v. Superior Court, 36 Cal.
Rptr. 3d 456, 458-59 (2005) (holding Delaware had a substantial relation
to transaction where defendant Discover Bank was domiciled in that
state).
To determine whether California “has a materially greater interest” than
Virginia and would be the state of the applicable law in the absence of an
effective choice of law by the parties, § 188 directs us to take into account
the following contacts to determine the applicable law: (a) the place of
contracting; (b) the place of negotiation of the contract; (c) the place of
performance; (d) the location of the subject matter of the contract; and (e)
the domicile, residence, nationality, place of incorporation, and place of
business of the parties. Restatement (Second) of Conflict of Laws § 188
(1971). Here, plaintiffs’ voluminous complaint is curiously silent as to any
and all of the determinative contacts mentioned in the Restatement.
702 DOE 1 v. AOL LLC
formed, the location of the subject matter of the contract, or
the residency of the AOL members at the time of their inju-
ries. Cf. Klussman v. Cross Country Bank, 36 Cal. Rptr. 3d
728, 740-41 (Cal. App. 1st. Dist. 2005) (noting that California
had a materially greater interest than Delaware in the applica-
tion of its own law where the consumer contracts were formed
in California, the allegedly illegal conduct took place at the
plaintiffs’ homes in California, and the plaintiffs were resi-
dents of California at the time of injury). The sole relevant
allegation is that, as of the time of filing the complaint, Doe
1 and Doe 2 were residents of California. That alone is simply
insufficient to establish California law would govern plain-
tiffs’ action. Even in the absence of a choice of law or forum
selection clause, residency is but one factor to be considered
in determining whether California law applies. “California,
despite its interest in securing recovery for its residents, will
not apply its law to conduct in other jurisdictions resulting in
injury in those jurisdictions.” McGhee v. Arabian Am. Oil
Co., 871 F.2d 1412, 1425 (9th Cir. 1989).
There is no “declar[ation] by statute or by judicial deci-
sion,” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17
(1972), that California public policy against consumer rights
waivers could possibly be offended by enforcing a contractual
class action waiver against a party whose sole connection to
California is residency at the time he filed a consumer class
action in a California court.2 My colleagues’ suggestion other-
2
The majority cites Mendoza for the proposition that mere residency at
the time of filing a complaint is sufficient to invoke California public pol-
icy. Mendoza neither said nor held any such thing. In Mendoza, there was
no dispute whether the plaintiffs were California consumers entitled to
invoke the protection of California consumer law, not merely California
residents. See Mendoza, 108 Cal. Rptr. 2d at 706, 707, 708 (discussing
“California consumers” and “this state’s consumers”). What Mendoza did
was use the phrase “California residents” twice. See id. at 708, 709. And
in each case, the court explained California courts would not enforce con-
tract provisions that would diminish the rights of California residents in
a way that would violate California public policy. Id. at 708, 709. These
DOE 1 v. AOL LLC 703
wise would permit a citizen of another state to move to Cali-
fornia for the sole purpose of serving as a class representative
and clothing himself with the protections of consumer-
friendly California public policy. This would magnetize Cali-
fornia courts to pull in out-of-state contracts, actions or omis-
sions. I see nothing in California consumer-protection statutes
or cases that would invite such a new Gold Rush.
I am admittedly not as sanguine as my colleagues as to the
non-litigation attractions which bring class action plaintiffs to
the Golden State. They mention, but do not describe, “far bet-
ter reasons” for class action representative plaintiffs moving
to California than simply to become class action plaintiffs. I
am reminded of Mr. Lazar, of Palm Springs, California, recip-
ient of Mel Weiss’s kickbacks to become a class action repre-
sentative plaintiff in several cases.3 With thanks to my
colleagues for their encomium, it doesn’t really require one to
be “imaginative and creative” to suspect the class representa-
tives may not have become California residents for reasons
other than class action litigation status and are not really Cali-
fornia consumers entitled to California consumer protection.
My concurrence merely requires the plaintiff class repre-
sentatives plead and prove they really are California consum-
ers by stating facts which make California substantive law
applicable to them, pursuant to the well-known rules of fed-
eral choice of law, set forth in the Restatement. This point
statements assume, but do not put, analyze, nor determine, the ultimate
question: whether the forum selection and choice of law clauses violate
California public policy.
The majority’s logical syllogism—all California residents are California
consumers—says nothing about whether the plaintiffs are California con-
sumers of AOL products entitled to invoke the protection of California
public policy in the instant litigation.
3
See The Wall Street Journal Law Blog, http://blogs.wsj.com/law/
?s=seymour+lazar (last visited August 20, 2008).
704 DOE 1 v. AOL LLC
seems to be brushed away by the majority as an unnecessary
technicality by a misreading of Mendoza.
Accordingly, I would remand for plaintiffs to be permitted
to file an amended complaint to allege facts—if they can so
allege—that would demonstrate contacts with California suf-
ficient to establish their causes of action are controlled by
California law.