Unreported / Non-Citable
Background
California residents Vishal Shah, Jonathan Gabrielli, and Christine Wiley filed a putative class action against Hilton Worldwide Holdings Inc. in the Northern District of California. They alleged that the Hilton.com website caused third-party cookies and similar tracking technologies to be placed on California users’ devices even after they opted out of tracking via the website’s pop-up consent banner. The technologies allegedly enabled Hilton and its third-party partners to surreptitiously collect users’ browsing history, visit history, website interactions, search parameters, demographic information, interests, shopping behaviors, device information, geolocation data, and form field data including names, email addresses, and payment information.
After nearly seven months of litigation, plaintiffs’ counsel finally disclosed that all three named plaintiffs are Hilton Honors Members Rewards Program members. The Honors Program terms specify that “venue for all suits will be in the Eastern District of Virginia.” Hilton moved to transfer based on that forum-selection clause. Hilton had also previously moved to dismiss for lack of personal jurisdiction in light of the Ninth Circuit’s recent decision in Briskin v. Shopify, Inc., 135 F.4th 739 (9th Cir. 2025), which has tightened the personal jurisdiction inquiry for e-commerce defendants. The court took the transfer motion before the personal jurisdiction question, finding sound prudential justification under Leroy v. Great Western United and Sinochem International v. Malaysia International Shipping.
The Court’s Holding
Judge Rita F. Lin granted Hilton’s motion to transfer the action to the Eastern District of Virginia.
The court applied the framework for enforcing forum-selection clauses set out in Atlantic Marine Construction Co. v. U.S. District Court: a valid forum-selection clause is given controlling weight in the transfer analysis under 28 U.S.C. § 1404(a) absent extraordinary circumstances. The Honors Program terms, which the named plaintiffs accepted as members, contain a clear venue clause requiring suit in the Eastern District of Virginia. Plaintiffs did not show that the clause was unenforceable for fraud, overreaching, or strong public policy reasons.
The court rejected plaintiffs’ contentions that the dispute fell outside the Honors Program terms. Their tracking claims were based on activity on Hilton.com, the same site that supports the Honors Program, and their status as Honors members was central to their interactions with Hilton’s digital ecosystem. The presence of unnamed putative class members who might not be Honors members did not defeat transfer; the named plaintiffs are bound, and the case follows them.
The court reverse-ordered the analysis to take up forum-selection before personal jurisdiction. Briskin v. Shopify, Inc. has made the personal-jurisdiction inquiry for e-commerce platforms a “close question” in the Ninth Circuit, and forum non conveniens-style transfer permits the court to bypass a difficult jurisdictional issue when convenience, fairness, and judicial economy strongly favor transfer. Plaintiffs’ delay in disclosing their Honors membership had also already led to a stipulated sanctions award. The court therefore transferred the case under 28 U.S.C. § 1404(a) without deciding personal jurisdiction.
Key Takeaways
- After Atlantic Marine, a valid forum-selection clause should be given controlling weight in a § 1404(a) transfer analysis. Plaintiffs’ standard convenience arguments will rarely overcome it.
- Forum clauses embedded in loyalty program terms — Hilton Honors, airline miles, retailer rewards — bind named plaintiffs’ later litigation against the program operator, even when the lawsuit is framed as a privacy or tracking case rather than a contract case.
- Disclosing material facts like loyalty-program membership early in litigation matters; late disclosures can lead to sanctions, as they did here.
- Northern District judges may take up forum-selection transfers ahead of personal jurisdiction questions where personal jurisdiction is a close question — particularly in the post-Briskin v. Shopify e-commerce environment — and where transfer would otherwise be appropriate.
- The Briskin v. Shopify decision has materially complicated personal jurisdiction analysis for online platforms in the Ninth Circuit; defendants increasingly have viable jurisdictional defenses in California-based privacy class actions.
Why It Matters
Wave after wave of California privacy class actions have targeted national consumer brands over website tracking technologies — third-party cookies, pixels, session replay, chatbots — typically asserting California Invasion of Privacy Act and related claims. Forum-selection clauses tucked into loyalty programs and account terms have become a powerful defense tool for transferring those cases out of California to courts that may be less plaintiff-friendly.
This decision is a clean illustration of how that strategy works. Plaintiffs’ delayed disclosure of their Honors membership status — and the resulting sanctions — also signals that courts expect candor about facts that bear on venue. Combined with the Ninth Circuit’s tightened personal-jurisdiction analysis in Briskin v. Shopify, this opinion adds to a growing toolkit that defendants in California consumer privacy litigation can deploy to relocate or dispose of cases at the threshold.