A recent federal court decision in Adam v. CaringBridge, Inc., No. 25-cv-06042-WHO, 2025 WL 3493565 (N. Cal. Dec. 5, 2025), offers a cautionary tale for plaintiffs in privacy class actions, and a strategic playbook for defendants. Even where a case is properly filed in California (the home turf for many privacy statutes and plaintiffs), a well-drafted forum selection clause buried in a website’s terms of use can upend venue and send a lawsuit halfway across the country.
CaringBridge operates an online platform allowing caregivers and individuals to document and share health journeys. The site requires users to create an account and agree to its terms of use and privacy policy, a standard clickwrap approach. However, to sign up, users must disclose their health condition via a drop-down menu with highly sensitive options (e.g., “Brain Cancer,” “HIV/AIDS,” “Substance Use Disorder”).
The California plaintiff claimed that when she entered this data, CaringBridge used real-time tools like Google Analytics and Meta Pixel to intercept and transmit her health information to third parties for advertising. She filed a putative class action in the Northern District of California, alleging violations of the California Invasion of Privacy Act (CIPA), the California Constitution, and the federal Electronic Communications Privacy Act.
CaringBridge responded by seeking a transfer, or dismissal, based on a clause in its terms of use requiring all litigation to be filed in Minnesota courts (specifically, Hennepin County). The company invoked the forum selection clause as grounds for transfer under 28 U.S.C. § 1404(a).
District Court Judge Orrick first confirmed a distinction critical for any practitioner:
- Forum selection clauses are not relevant to determining if venue is proper under § 1391 or subject to dismissal under § 1406(a).
- Such clauses matter only for transfer under § 1404(a).
The plaintiff pointed to Popa v. Harriet Carter Gifts, Inc., 52 F.4th 121 (3d Cir. 2022), which held that online interception of communications occurs “at the plaintiff’s browser,” not the defendant’s server. Judge Orrick agreed: for venue purposes, the alleged interception happened in California, making venue proper under 28 U.S.C. § 1391(a)(2). But victory on venue proved short-lived.
The moment the analysis shifted to 28 U.S.C. § 1404(a), the forum selection clause became dispositive:
- “[A]ll factors relating to the private interests of the parties … [are] entirely in favor of the preselected forum.” (quoting Sun v. Advanced China Healthcare, Inc., 185 F. Supp. 3d 1155, 1169 (N.D. Cal. 2016))
- The party seeking to defeat transfer has a heavy burden; only “unusual cases” will suffice.
The plaintiff creatively argued that enforcing the forum selection clause would thwart California’s fundamental privacy policy, as Minnesota law lacks a CIPA equivalent. She relied on In re Facebook Biometric Information Privacy Litigation where a similar clash led the court to decline enforcing a choice-of-law provision. But as Judge Orrick explained, that case addressed what law would apply after transfer. The forum selection and choice-of-law provisions are separate: the proper place to fight about CIPA’s protections is in Minnesota, not California.
Further, the Court rejected the argument that the terms of use didn’t govern because some less-sensitive data was collected pre-agreement; the core fact (the sensitive health disclosures) arose only after consent.
The traditional deference given to a plaintiff’s forum choice was offset by the following:
- Class actions: The named plaintiff’s preference gets less weight.
- Forum selection clause: Plaintiff agreed to it.
- Convenience: CaringBridge’s witnesses and most evidence are in Minnesota, making it the more efficient forum.
Key Takeaways
- Forum selection clauses matter: immensely: Even in privacy cases with strong venue arguments, courts will enforce well-drafted clauses, shifting litigation to the defendant’s chosen forum.
- CIPA policy questions remain alive, but in the transferee court. The argument that California public policy requires application of its privacy statutes may yet be made but must wait for choice-of-law litigation in Minnesota.
- The Popa ruling on browser-based interception is good law (for venue), but it doesn’t trump a forum selection clause at the transfer stage.
This case illustrates the enduring power of forum selection clauses in online terms of use, especially for defendants facing CIPA and digital privacy lawsuits. Plaintiffs’ counsel should scrutinize such clauses at the outset and weigh the uphill battle of nullifying them. Defendants should ensure such clauses are not only present but conspicuous and enforced. Stay tuned as litigation proceeds in Minnesota; a future fight over whether California’s privacy laws will apply on their merits is nearly guaranteed.