Zee5 Forum Selection Clause Sends VPPA Class Action to Mumbai
When users click “I agree” to terms and conditions, they rarely consider where they might have to sue if something goes wrong. A recent federal court decision in New Jersey demonstrates just how important those forum selection clauses can be. In a class action lawsuit alleging violations of the Video Privacy Protection Act against streaming service Zee5 and its parent companies, plaintiffs discovered that their agreement to litigate disputes in Mumbai, India—buried in the terms of service—would be enforced, sending their case overseas despite the alleged violations occurring in the United States.
The Case: Streaming Service Users vs. Zee5
Pankaj Shah and Vipul Aggarwal filed a putative class action in New Jersey federal court against Asia TV USA Limited and Zee Entertainment Enterprises Limited (Zeel), alleging violations of the Video Privacy Protection Act (VPPA). The VPPA, passed by Congress in 1988 after a newspaper published Supreme Court nominee Robert Bork’s video rental history, prohibits video service providers from knowingly disclosing personally identifiable information about what consumers watch without their consent.
The plaintiffs alleged that when they and other users watched content on the Zee5 streaming platform—marketed as the world’s largest streaming platform for South Asian content—the defendants transmitted user information to third parties for marketing, advertising, and analytics purposes. According to the complaint, this information was sufficient to identify specific users and the videos they watched, all without obtaining proper consent as required by the VPPA.
To support their claims, the plaintiffs’ attorneys retained a research company to analyze what data was shared when premium Zee5 subscribers watched episodes. The research allegedly revealed that Defendants were transmitting personal information to several third parties, creating potential liability under federal privacy law. The plaintiffs sought to represent two classes: app users and website users who had their viewing information improperly disclosed.
The defendants moved to dismiss the case on multiple grounds, but the court ultimately focused on one critical issue: a forum selection clause in Zee5’s Terms of Use that required all disputes to be litigated in Mumbai, India.
Forum Selection Clauses: Small Print with Big Consequences
When users signed up for a premium Zee5 subscription, they were required to consent to the platform’s Terms of Use and Privacy Policy. Buried within those terms was a forum selection clause stating: “These TERMS and all matters arising from it are governed by and construed in accordance with the laws of India and courts of Mumbai, India shall have exclusive jurisdiction over all disputes arising in connection with these TERMS.”
The court analyzed whether this clause was valid, enforceable, and applicable to the plaintiffs’ claims under the legal doctrine of forum non conveniens—a principle allowing courts to dismiss cases when another forum is more appropriate. Under Supreme Court precedent, forum selection clauses are presumptively valid and should be enforced unless the resisting party can show the clause resulted from fraud, violates strong public policy, or would be so inconvenient as to deprive them of their day in court.
The court found the forum selection clause was mandatory because it used the phrase “exclusive jurisdiction,” distinguishing it from permissive clauses that merely allow litigation in a particular forum. The mandatory nature of the clause significantly strengthened the defendants’ position.
The plaintiffs argued the clause shouldn’t apply because their claims were based on tort law (the VPPA violation) rather than contract law, and existed independently of the Terms of Use. However, the court rejected this argument, noting that Third Circuit precedent requires enforcement of forum selection clauses for any claims that “stem from the contractual relationship”—not just contract-based claims. The court found a clear logical connection between the dispute and the Terms of Use, especially since the Privacy Policy (incorporated into the Terms of Use) explicitly addressed sharing user information with third parties for advertising purposes.
The plaintiffs also argued that enforcing the clause would be unreasonable because the defendants profited from U.S.-based conduct and the alleged violations occurred in the United States. The court found this argument insufficient, emphasizing that the relevant question wasn’t whether the defendants could litigate in U.S. courts, but whether the plaintiffs would be deprived of their day in
