On October 16, 2025, Judge Susan Van Keulen, in the Northern District of California, denied the defendant’s motion to transfer the case to Virginia, finding insufficient evidence that the plaintiffs were bound by a forum-selection clause in the website’s terms and conditions. The court also granted in part and denied in part the defendant’s motion to dismiss class action allegations involving online privacy and data collection practices.
Venue Transfer: Forum-Selection Clause Not Enforced
Defendant sought to transfer the case to the Eastern District of Virginia, relying on a forum-selection clause in its website’s terms and conditions. The court found that the plaintiffs were not bound by this clause because:
- The terms and conditions were presented as a “browsewrap” agreement—accessible only via a hyperlink at the bottom of the website, without requiring users to affirmatively acknowledge or accept them.
- Plaintiffs accessed the privacy policy through a separate “Manage Cookies” popup, not through the general website footer, and the privacy policy did not contain a forum-selection clause.
- The defendant failed to show that plaintiffs had actual or constructive notice of the terms and conditions.
As to constructive notice, both sides agree that Dollar Tree’s T&C—which are available only via hyperlink at the bottom of its webpage and are not part of any independent pop-up, sign-in or check-box—are browsewrap. See Dkt. 40 at 7-8 (Dollar Tree’s reply); Dkt. 35 at 12-14 (setting forth Plaintiffs’ “browsewrap” argument); see also Oberstein, 60 F.4th at 513 (“At the other end of the spectrum [from enforceable clickwrap agreements] are so-called ‘browsewrap’ agreements, in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website,” (cleaned up) citations omitted)). “Courts are generally reluctant to enforce such agreements[.]” Oberstein, 60 F.4th at 513. Plaintiffs argue that there is a “bright-line rule” and the inquiry ends here. Dkt. 35 at 12-13 (citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1178-79 (9th Cir. 2014)). Dollar Tree correctly points out, however, that Nguyen only disapproved of notice via hyperlink “without more,” suggesting the rule is not all-or-nothing. Dkt. 40 at 7. The Oberstein Court’s use of the word “generally” similarly suggests that the rule is not always a bright line. Oberstein, 60 F.4th at 513. Dollar Tree contends that Plaintiff’s invocation of the Privacy Policy, which is contained in an adjacent and similarly placed hyperlink, “is the ‘more’ ” that is required. Id. at 7-8.
*6 On the record before it, the Court disagrees. While true that if Plaintiffs were attempting to rely on the website’s hyperlink to assert claims under the Privacy Policy, it would be difficult to see how they could disavow having constructive notice of the adjacent, similarly placed T&C hyperlink, that is not what occurred here. As Plaintiffs argue, “[i]t’s not that we get to the privacy policy through the [hyperlinks at the] bottom of the web page. Where the consumers … get to the privacy policies is by going to the mange cookie button.” Dkt. 53 (“Hrg. Tr.”) at 16:8-18.1 The “Manage Cookies” popup, as pointed to by Plaintiffs, contains a clear, paragraph explanation of “Site Cookie Preferences” with an explicit statement that “[f]or more information about our privacy practices, [users should] see our Privacy Policy.” Compl., ¶ 24 (on Dollar Tree’s website, “Privacy Policy” is an underlined hyperlink). Thus, Plaintiffs allege a unique route to the Privacy Policy that does not implicate the T&C hyperlink. Only the hyperlinks at the bottom of the webpage are insufficient to provide constructive notice.
Finally, Dollar Tree also argues that its T&C are incorporated into the Privacy Policy and referenced therein “in several places.” Dkt. 40 at 7-8; Hrg. Tr. at 31:1-6. In fact, there are only two such references, and neither is sufficient to incorporate the forum-selection clause against Plaintiffs. The first reference is in the right-hand column of the 19th row of a 22-row chart; it is inconspicuously placed, not hyperlinked, and the words “terms and conditions” are not even capitalized. Dkt. 19-1 at 10. The second reference is more robust, capitalizing and underlining the words “Terms & Conditions (/terms)” so as to call them to a user’s attention. Id. at 14. But it is in a section expressly directed to Dollar Tree’s coupon program, stating only that “[t]he [Coupon] Programs are subject to our [T&C].” Id. at 10. If anything, this might mislead a consumer into supposing that only the coupon program, and not general use of the website, is subject to the T&C. Neither of these references is sufficient, without more, to incorporate the T&C into the Privacy Policy. See In re Holl, 925 F.3d 1076, 1084 (9th Cir. 2019) (incorporation requires, in relevant part, that “the incorporation [be] clear and unequivocal, the reference [be] called to the attention of the other party and he consents thereto.” (Cleaned up)).
The Court finds that, at this juncture, Dollar Tree has not met its burden to show that Plaintiffs are bound by the T&C or the forum-selection clause therein.
After analyzing the relevant factors under 28 U.S.C. § 1404(a), the court found that most were neutral or weighed slightly against transfer, including the convenience of parties and witnesses, ease of access to evidence, and the court’s familiarity with California law. The only factor favoring transfer was relative court congestion, but this was not dispositive. As a result, the motion to transfer was denied.
Standing: Sufficient Allegations of Injury
The court rejected the defendant’s argument that plaintiffs lacked Article III standing. Plaintiffs alleged concrete injuries, including:
- Loss of privacy due to unauthorized placement of advertising cookies after expressly rejecting them.
- Loss of the benefit of the bargain and diminution in value of their personal information.
- Reduction in storage and performance of their devices due to unauthorized cookies.
The court found these allegations sufficient to establish standing at the pleading stage, particularly where privacy interests and device impairment are at issue.
Venue for Named Plaintiffs: Dismissal for Improper Venue
Two of the three named plaintiffs were dismissed for improper venue because they did not reside in the district and their claims did not arise there. However, the court allowed them to remain as potential class members, clarifying that only the named plaintiff with proper venue could proceed as a class representative.
Pleading Standards: Privacy, Statutory, and Contract Claims
The court addressed the sufficiency of several categories of claims:
- Privacy Claims: Plaintiffs adequately alleged a reasonable expectation of privacy and highly offensive conduct, given the website’s explicit option to “Reject Advertising Cookies” and the alleged disregard of that choice.
- Statutory Claims (CIPA): The court dismissed the wiretapping claim under California Penal Code § 631 for failure to allege that the “contents” of communications were intercepted, but allowed plaintiffs to amend.
As to the “contents” requirement, Plaintiffs clearly allege that certain types of data (“browsing history, visit history…,” etc.) were transmitted to third parties. Compl., ¶¶ 141-44. Plaintiffs further allege that a “user’s affirmative decisions, actions, choices, preferences, and activities” constitute the contents of their communications with Dollar Tree. Id., ¶ 143. Dollar Tree challenges that “mere interactions with a website” do not constitute contents and are “non-actionable ‘record information.’ ” Dkt. 18 at 28. Indeed,
Courts analyzing CIPA claims apply the same definitions for the federal Wiretap Act where appropriate. The Ninth Circuit has held that the “contents” of an online communication under federal wiretap law “refers to the intended message conveyed by the communication, and does not include record information regarding the characteristics of the message that is generated in the course of the communication.”
Mikulsky v. Bloomingdale’s LLC, 713 F. Supp. 3d 833, 845 (S.D. Cal. 2024) (citing In re Zynga Priv. Litig., 750 F.3d 1098, 1106 (9th Cir. 2014)); see also Katz-Lacabe v. Oracle Am., Inc., 668 F. Supp. 3d 928, 945 n.9 (N.D. Cal. 2023) (explaining that “webpage titles, webpage keywords, the date and times of website visits, IP addresses, page visits, purchase intent signals, and add-to-cart actions” were mere “record information”) (citing same)). Plaintiffs acknowledge this distinction but argue that they fall on the correct side of the line because they have alleged collection and tracking of “user input data” which includes “search queries, the user’s name, age, gender, email address, location, and/or payment information.” Dkt. 37 at 22 (citing same). The Court agrees that “data entered into forms” and “URLs … include[ing] elements … such as search terms which would reveal the content a user searched for” and “full-string detailed URLs that might contain folder and file names” may be actionable “contents.” Katz-Lacabe, 668 F. Supp. 3d at 944-45 n.9. However, the Court also finds that Plaintiffs’ allegations as to “user input data”— the only category of data at issue that may constitute actionable contents—are insufficient because Plaintiffs only allege that such data are among the types of data tracked by cookies. Compl., ¶¶ 20, 79-82. Plaintiffs do not allege that Walsh actually generated any user input data or that such data was read, attempted to be read, learned, or communicated in any way by or to third parties.
- The pen register claim under § 638.51 survived, with the court finding that the use of cookies to collect routing and addressing information could fall within the statute’s broad definition.
- Contract and Fraud Claims: The court dismissed breach of contract, breach of implied covenant, and fraud claims for failure to allege actual damages, but granted leave to amend. The unjust enrichment claim was allowed to proceed as an alternative theory.
- Trespass to Chattels: The claim was dismissed for lack of specific allegations regarding impairment of plaintiffs’ devices, with leave to amend.
MARCO WALSH, et al., v. DOLLAR TREE STORES, INC., No. 25-CV-01601-SVK, 2025 WL 2939229 (N.D. Cal. Oct. 16, 2025).
