Unreported / Non-Citable
Background
Two plaintiffs proceeding as John Doe 1 and John Doe 2 brought a putative class action against Fenix International Limited, the owner of OnlyFans, alleging violations of California's Automatic Renewal Law. The district court earlier dismissed the case for lack of specific personal jurisdiction, resting on the express aiming element of the purposeful direction test.
The Ninth Circuit vacated that order, holding that Plaintiffs satisfied express aiming. It remanded for the district court to decide the remaining jurisdictional elements and did not address Plaintiffs' request for leave to amend or Fenix's forum non conveniens argument. That argument rests on a clause in the OnlyFans terms of service requiring claims to be brought in England and Wales under English law, to which Plaintiffs do not dispute they agreed. The court ordered supplemental briefing on remand.
The Court’s Holding
On personal jurisdiction, the court held that Plaintiffs' claims arise out of or relate to Fenix's California activities. It relied on the Ninth Circuit's description of Fenix as inviting California orders, holding over 10,000 California subscriptions, and earning about $400 million a year from California consumers. Applying a but-for test, it reasoned that without those contacts Plaintiffs would not have subscribed or been exposed to the alleged violations. It rejected Fenix's argument that this collapses the second prong into the first.
The court also found jurisdiction reasonable, calling the seven factors mixed. Fenix has some burden defending without California offices, and sovereignty concerns carry weight. But the evidence is largely documentary, class members are in California, California law governs, California has a strong interest, and individual plaintiffs would face hardship litigating in England. Fenix did not make the required compelling case that jurisdiction is unreasonable.
On forum non conveniens, the court held the clause unenforceable as contrary to California's strong public policy favoring consumer class actions. It followed America Online, Inc. v. Superior Court as read by the Ninth Circuit in Doe 1 v. AOL, and agreed with other federal decisions on the same Fenix clause that English procedures would substantially diminish class rights. EpicentRx, Inc. v. Superior Court was limited to jury trial rights and did not displace AOL. Absent convincing evidence that the California Supreme Court would decide differently, the court followed the intermediate appellate decision. It denied the motion to dismiss and, on its own motion, certified the order under 28 U.S.C. section 1292(b).
Key Takeaways
- The order only denies a motion to dismiss; it does not decide the merits of the automatic renewal claims.
- The court did not rule on Fenix's renewed standing argument because it was outside the briefing order and bound up with the merits.
- Leave to amend was treated as moot based on Plaintiffs' position, and the court expressed no view on any future amendment request.
- Certification reflects the district court's view that the section 1292(b) elements are met, but whether the Ninth Circuit accepts the appeal is a separate decision, and the order does not address a stay.
- The court found substantial ground for disagreement over whether EpicentRx's reasoning extends from jury trial rights to class actions.
Why It Matters
The ruling matters for consumer class actions against foreign platforms that rely on foreign forum clauses. It follows other federal decisions holding the same Fenix clause unenforceable as to California residents, and it treats AOL as controlling absent convincing evidence otherwise.
The court acknowledged that the California Supreme Court might eventually side with Fenix on EpicentRx's reach, and that is the question it certified. The case remains at the pleading stage, with discovery, class certification and the merits still ahead.