Unreported / Non-Citable
Background
Peter Carter and Randall Fitkin sued Performance Golf Products, LLC and Blackfish Media, LLC in the Northern District of California. Their amended complaint alleged that customers intending to buy a one-off instructional golf video were deceptively enrolled in Performance Golf's Scratch Club, a digital subscription offering video lessons, practice plans, and swing analysis. The plaintiffs described a free 14-day trial followed by recurring monthly charges and sought to represent a nationwide class, or alternatively California and Florida subclasses, of consumers enrolled in the automatically renewing subscription after buying another product.
The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6), invoking a forum selection clause, contesting personal jurisdiction, and challenging the adequacy of the claims. The checkout process required customers to check a box agreeing to hyperlinked Terms of Use before completing a purchase. Those terms selected Florida law and exclusive jurisdiction in Florida county or circuit courts, with venue in Broward County. They also described the trial, automatic renewal, monthly billing, and cancellation process. The court considered the briefing, a sur-reply, and oral argument.
The Court’s Holding
The court granted dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. It explained that forum selection clauses in diversity cases are governed by federal law and are presumptively valid, while the party resisting enforcement bears the burden of establishing an exception. The plaintiffs argued that their statutory consumer claims arose from deceptive marketing rather than the Terms of Use, that the defendants had not proved assent, and that California public policy protected Carter's ability to pursue California consumer claims in California.
The court rejected each argument. It held that the deception theory arose out of the Terms of Use because evaluating what consumers were told at purchase would necessarily involve the provisions disclosing the trial, renewal, billing, and cancellation terms. It also found assent established by the complaint and the declaration of Faraaz Jamal, whose account of the checkout configuration showed that both plaintiffs had to affirmatively accept the hyperlinked terms before ordering. Failure to read the terms did not defeat assent. Finally, the court found no public policy exception for Carter: Florida was not categorically closed to consumer class actions, the terms did not foreclose application of California substantive law, and the plaintiffs identified no right they would lose by litigating in Florida.
The dismissal was without leave to amend, and the Clerk was instructed to close the case. The court expressly declined to decide personal jurisdiction or the merits and plausibility of the complaint under Rules 12(b)(2) and 12(b)(6). It also dismissed as moot the defendants' request to decide the motion without oral argument and granted the plaintiffs' request to file a sur-reply.
Key Takeaways
- A mandatory forum selection clause can require dismissal even when the plaintiff characterizes the dispute as statutory consumer deception rather than breach of contract.
- The subscription's renewal and cancellation provisions made the Terms of Use central to the plaintiffs' allegations about misleading enrollment and recurring charges.
- A declaration describing the checkout system, together with the complaint's checkout screenshot, established that both plaintiffs affirmatively accepted the hyperlinked terms.
- The California resident's public policy argument failed because he did not identify a substantive right that would be lost in a Florida forum.
- The court resolved only the Rule 12(b)(1) issue and left personal jurisdiction and the merits of the consumer claims undecided.
Why It Matters
The decision shows how subscription disclosures can affect not only the merits of a consumer deception claim but also where that claim must be brought. Because the challenged enrollment and billing practices were intertwined with the same online terms containing the forum clause, the court rejected an attempt to separate statutory marketing claims from the contract.
The ruling also illustrates the evidence used to establish online assent: a required checkbox, hyperlinked terms, and testimony about the checkout configuration in effect when each purchase occurred. It does not determine whether the alleged subscription practices were deceptive; it directs the dispute out of the California federal court based on the forum agreement.