# ZHANG v. GAIN CAPITAL HOLDINGS, INC.

> District Court, D. New Jersey · May 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10270676

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10270676

## How later opinions describe it (automated extraction)

- finding that “pleading alternate non-contractual theories is not alone enough to avoid a forum selection clause if the claims asserted arise out of the contractual relation and implicate the contract’s terms”

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JUN ZHANG, a.k.a., JUNE ZHANG,
individually and on behalf of all others Case No. 3:20-cv-09426 (BRM) (TJB)
similarly situated,
Plaintiff,
v. OPINION
GAIN CAPITAL HOLDINGS, INC., a
Delaware corporation,

Defendant.

MARTINOTTI, DISTRICT JUDGE
Before this Court is Defendant Gain Capital Holdings, Inc.’s (“GCH”) Motion to Dismiss
pursuant to the doctrine of forum non conveniens (ECF No. 17) and its Motion to Dismiss Plaintiff
Jun Zhang’s (“Plaintiff”) Complaint for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) (ECF No. 18). Plaintiff opposed both Motions (ECF Nos. 24, 25) and GCH
replied to both oppositions (ECF Nos. 26, 27). Having reviewed the parties’ submissions filed in
connection with the Motions and having declined to hold oral argument pursuant to Federal Rule
of Civil Procedure 78(b), for the reasons set forth below and for good cause having been shown,
GCH’s Motion to Dismiss pursuant to the doctrine of forum non conveniens is GRANTED and
its Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is DENIED AS
MOOT.
I. BACKGROUND
A. Factual Background

GCH is a “global provider of trading services and solutions” with customers located in
over 180 countries. (ECF No. 1 ¶ 5.) GCH’s shares are traded on the New York Stock Exchange
and it has offices in New York, Illinois, Ohio, the United Kingdom, Japan, Australia, China,
U.A.E., Poland, and Singapore. (Id.) It uses a global digital trading platform that can be accessed
through the internet and mobile devices. (Id.) Its retail customers are composed of “self-directed
traders” who execute trades on their own behalf. (Id.) In 2018, these self-directed traders
represented approximately 99.7% of GCH’s retail trading volume. (Id.) Trades are executed
through GCH’s GAIN Trader proprietary trading platform. (Id. ¶ 6.) GCH has several operating
subsidies, including a Cayman Islands company named Gain Global Market, Inc. (“GGMI”). (Id. ¶
7.)

Plaintiff is a self-directed trader who has been using GCH’s GAIN Trader platform to trade
derivatives of commodity futures since 2017. (Id. ¶ 8.) When Plaintiff opened his account through
GCH’s website, forex.com, he had to fill in his personal information and set up a username and
password. (Id.) Plaintiff does not remember signing any contract for opening the account, and the
entire process took him only a few minutes. (Id.) Plaintiff alleges GCH’s website included
advertisements boasting “five-minute account opening.” (Id.) To Plaintiff’s understanding, GCH’s
platform allows its users to buy and sell futures derivatives offered by GCH—it is not an agent
which buys and sells futures on behalf of the users. (Id. ¶ 9.) GCH also hedges on its customers’
trading activities to generate profits in both up and down markets, so “in the investment

terminology,” GCH is an investment dealer instead of a broker, “as far as Plaintiff is concerned.”
(Id.) Plaintiff understands the deposit account he opened with GCH is a trust account (the “Trust
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Account”) that entrusts GCH “to manage and to debit or credit Plaintiff according to his trading
activities on the platform.” (Id.) After opening his account, Plaintiff received an email from

cn.support@forex.com informing Plaintiff he had completed his account opening but needed to
deposit funds into his account before he started trading. (Id. ¶ 10.) The email included a statement
regarding GCH being the owner of forex.com located at “135 US Hway 202/206, Bedminster NJ,
07921,” which is the address of GCH. (Id. ¶ 11.) The owner of the New York bank account to
which the Trust Account money was wired was shown to have a physical address at the same
address. (Id. ¶ 12.) Since activating his account and depositing the funds necessary to begin trading,
Plaintiff “made innumerable deposits and withdrawals from the Trust Account, all under GCH’s
management.” (Id. ¶ 13.)
One of Plaintiff’s major trading activities using GCH’s platform concerns a futures contract
named “US_OIL” with a Chinese name literally meaning U.S. Crude Oil. (Id. ¶ 14.) US_OIL

trades crude oil futures through commodity future exchanges in the United States, which are
primarily exchanges controlled by the Chicago Mercantile Exchange Group (“CME Group”). (Id.)
The US_OIL monthly contracts closely track the monthly futures contracts of the U.S. crude oil
benchmark—West Texas Intermediate (“WTI”)—which are administered by the CME Group.
(Id.) On Plaintiff’s information and belief, the US_OIL contracts are crude oil futures derivative
products that GCH offered through its trading platform, forex.com, at all relevant times to non-
U.S. residents including Chinese residents like Plaintiff. (Id. ¶ 15.)
For the US_OIL trading, GCH provides its customers with real time quotes from the CME
Group for WTI and other oil-related futures in the United States, and general research and guidance

for the U.S. oil market. (Id. ¶ 16.) By allowing Plaintiff and other customers to buy and sell
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US_OIL as a derivative of the WTI futures of the CME Group, Plaintiff alleges GCH has been
acting as Plaintiff’s investment dealer and advisor for U.S.-based investments. (Id.)

Plaintiff alleges this action arose from the negative pricing of WTI futures. (Id. ¶ 17.) On
April 3, 2020, the CME Group announced to its CME Globex and Market Data customers that
effective April 5, 2020, futures and options including crude oil “will be flagged as eligible to trade
at negative prices.” (Id.) Historically, negative pricing for commodity trading has existed for many
years, but the CME Group did not allow it until April 5, 2020. (Id.) On April 8, 2020, CME Group
published an advisory notice which stated, in relevant part, that if major energy prices continued
to fall towards zero in the following months, CME Clearing had a tested plan to support the
possibility of negative options and enable markets to continue to function normally. (Id. ¶ 18.) The
notice specifically mentioned WTI Crude Oil futures, RBOB Gasoline futures, and Heating Oil
futures for possible negative pricing. (Id.)

On April 15, 2020, CME Group sent a memorandum to all clearing member firms under
the subject “Testing opportunities in CME’s ‘News Release’ environment for negative prices and
strikes for certain NYMEX energy contracts.” (Id. ¶ 19.) The memorandum stated, “Support for
zero or negative futures and/or strike prices is standard throughout CME systems.” (Id.) It also
stated, “Effective immediately, firms wishing to test such negative futures and/or strike prices in
their systems may utilize CME’s ‘News Release’ testing environments.” (Id.)
On April 20, 2020, the day the WTI May 2020 contracts were set to expire, their prices
dropped into the negatives, reaching -$40.32 per barrel at its lowest point, and closing at -$37.63
per barrel. (Id. ¶ 20.) However, GCH’s US_OIL contract pricing remained in the positives, with

the lowest price shown as $0.01 per barrel and the closing price at $0.05 per barrel. (Id.) On the
same day, approximately twenty-two minutes before the closing of U.S. crude oil trading, GCH’s
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US_OIL trading halted, “thus dissociating the derivative from its underlying WTI future
contracts.” (Id.) On April 21, 2020, GCH’s platform showed the settlement pricing of US_OIL for

the May contracts as $0.01. (Id. ¶ 21.) On April 23, 2020, Plaintiff received an email from GCH
announcing that Plaintiff’s US_OIL account had been assessed an “adjustment” of -$143,032.00
due to the negative pricing of WTI’s May 2020 contract and that GCH had withdrawn that
adjustment amount from Plaintiff’s Trust Account. (Id. ¶ 22.) After inquiring about the adjustment
with GCH’s customer service, Plaintiff was told the adjustment was a decision made by GCH’s
trading platform management. (Id.)
Plaintiff complained several times to GCH and as part of this complaint process, “[GCH]
sent Plaintiff and its other customers a contract which Plaintiff allegedly executed by opening an
account on GCH’s forex.com platform.” (Id. ¶ 25.) According to Plaintiff, this was the first time
Plaintiff had ever heard of such a contract. (Id.) Plaintiff then complained to the National Futures

Association (“NFA”), the regulatory group for the futures trading industry based in Chicago and
New York, which stated that the US_OIL trading on GCH’s platform was conducted by GCH’s
subsidiary, GGMI. (Id. ¶ 26.) GCH is a member of the NFA, but GGMI is not. (Id.) Plaintiff alleges
this was the first time he was made aware of GGMI being the market maker for US_OIL and of
“the artificial distinction between GCH and GGMI.” (Id.)
On July 24, 2020, Plaintiff filed a three-count putative class action Complaint alleging
breach of fiduciary duty (Count I); negligence (Count II); and consumer fraud under N.J. Stat.
Ann. §§ 56:8-1, et seq. (Count III). (ECF No. 1.) On October 2, 2020, GCH filed two Motions: (1)
a Motion to Dismiss pursuant to the doctrine of forum non conveniens (ECF No. 17); and (2) a

Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)
5
(ECF No. 18). On November 6, 2020, Plaintiff opposed both Motions (ECF Nos. 24, 25) and on
November 24, 2020, GCH replied to both oppositions (ECF Nos. 26, 27).

II. LEGAL STANDARD
Forum non conveniens “requires a decision whether a case ‘should be adjudicated
elsewhere,’ Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 432 (2007), and
‘is the proper mechanism for enforcing a forum selection clause,’ Collins v. Mary Kay, Inc., 874
F.3d 176, 180 (3d Cir. 2017).” Meridian Consulting I Corp., Inc. v. Eurotec Can. Ltd., Civ A. No.
1922197, 2021 WL 689132, at *9 (D.N.J. Feb. 22, 2021). “A district court therefore may dispose
of an action by a forum non conveniens dismissal . . . when considerations of convenience,
fairness, and judicial economy so warrant.” Sinochem Int’l Co., 549 U.S. at 432. When no forum
selection clause is present, a district court must consider the following factors in applying the
doctrine of forum non conveniens:

(1) the amount of deference to be afforded to plaintiffs’ choice of
forum; (2) the availability of an adequate alternative forum where
defendants are amenable to process and plaintiffs’ claims are
cognizable; (3) relevant ‘private interest’ factors affecting the
convenience of the litigants; and (4) relevant ‘public interest’ factors
affecting the convenience of the forum.

Collins, 874 F.3d at 186 (quoting Kisano Trade & Invest Ltd. v. Lemster, 737 F.3d 869, 873 (3d
Cir. 2013)). However, when a forum selection clause exists, the analysis changes. See Atl. Marine
Const. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 571 U.S. 49, 63 (2013). The plaintiff’s choice
of forum “merits no weight,” id., and the court “must deem the private-interest factors to weigh
entirely in favor of the preselected forum.” Id. at 64. “Therefore, under Atlantic Marine, the
remaining factors for the Court to consider are (i) the availability of an adequate alternative forum
where [GCH] is amenable to process and Plaintiff’s claims are cognizable, and (ii) public interest
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factors.” Hage v. Am. Bd. of Obstetrics & Gynecology, Civ. A. No. 19-21198, 2020 WL 3056442,
at *4 (D.N.J. June 9, 2020). “[T]he party resisting application of a forum selection clause . . . bears

a heavy burden under Atlantic Marine” of establishing the forum selection clause should not be
enforced. Collins, 874 F.3d at 186–87.
“[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign
forum is through the doctrine of forum non conveniens.” Atl. Marine, 571 U.S. at 60. “Section
1404(a) is merely a codification of the doctrine of forum non conveniens for the subset of cases in
which the transferee forum is within the federal court system.” Id. But “[f]or the remaining set of
cases calling for a nonfederal[, meaning state or foreign,] forum, § 1404(a) has no application, but
the residual doctrine of forum non conveniens ‘has continuing application in federal courts.’” Id.
at 60–61 (quoting Sinochem, 549 U.S. at 430). The forum selection clause here, if applicable,
points to the Cayman Islands, a foreign forum, so the Court must apply the doctrine of forum non

conveniens. See id. (noting that “courts should evaluate a forum-selection clause pointing to a
nonfederal forum in the same way that they evaluate a forum-selection clause pointing to a federal
forum.” (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 37 (1988))).
III. DECISION
GCH asserts when Plaintiff opened his trading accounts on forex.com, he assented to the
Customer Agreement, which contains a forum selection clause. (ECF No. 17-1 at 1.) This forum
selection clause provides the courts of the Cayman Islands will have “exclusive jurisdiction” over
any claim arising under the Customer Agreement. (Id.) GCH makes two arguments in relation to
the forum selection clause: (1) the forum selection clause is enforceable and (2) the forum selection

clause applies to this action. (ECF No. 17-1 at 10–16.) Because of both these arguments, GCH
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submits the doctrine of forum non conveniens justifies dismissal of this action. (Id. at 16–17.) The
Court will address each of GCH’s main arguments in turn.

A. The Forum Selection Clause’s Enforceability
GCH argues the forum selection clause applies to this action because Plaintiff had
reasonable notice of the clause and affirmatively assented to the Customer Agreement containing
the clause. (Id. at 10.) GCH also argues Plaintiff cannot demonstrate the forum selection clause is
unreasonable. (Id. at 11.) Plaintiff argues the Customer Agreement did not provide adequate notice
of the clause because it does not qualify as enforceable clickwrap. (ECF No. 24 at 15.)
Online agreements, such as this one, “are generally presented in one of two
forms: clickwrap agreements and browsewrap agreements.” Mucciariello v. Viator, Inc., Civ. A.
No. 18-14444, 2019 WL 4727896, at *3 (D.N.J. Sept. 27, 2019) (citations omitted). “A clickwrap
agreement requires a computer user to affirmatively manifest her assent to the terms of contract.”

ADP, LLC v. Lynch, Civ. A. No. 2:16-01053, 2016 WL 3574328, at *4 (D.N.J. June 30,
2016), aff’d, 678 F. App’x 77 (3d Cir. 2017). Clickwrap agreements satisfy that requirement “by
informing the user that taking such action will comprise her assent to the displayed terms.” Id.
(citing Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236 (E.D. Pa. 2007)). Importantly,
“clickwrap agreements are routinely upheld.” Mucciariello, 2019 WL 4727896, at *3; see also
Liberty Syndicates at Lloyd’s v. Walnut Advisory Corp., Civ. A. No. 09-1343, 2011 WL 5825777,
at *4 (D.N.J. Nov. 16, 2011) (“Generally, courts have enforced forum selection clauses in
clickwrap agreements, finding that the clickwrap agreement, which collects all of the terms of the
agreement in a single dialog box and then requires the user to affirmatively accept the agreement

before proceeding, makes every term equally visible.”). Alternatively, “browsewrap agreements
are not automatically deemed valid.” Mucciariello, 2019 WL 4727896, at *3; see also Liberty
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Syndicates at Lloyd’s, 2011 WL 5825777, at *4 (noting that “courts have only enforced
the forum selection clauses in browsewrap agreements when the specifics surrounding agreement

revealed either that the user knew or should have known about the existence of the terms and
conditions that contained the forum selection clause”). However, for both of these agreements,
“[t]he central issue . . . is whether or not the forum selection clause is ‘immediately visible.’”
Liberty Syndicates at Lloyd’s, 2011 WL 5825777, at *4.
Here, GCH argues “Plaintiff had reasonable notice of the Customer Agreement and its
forum selection clause . . . because three different hyperlinks gave Plaintiff notice of the Customer
Agreement.” (ECF No. 17-1 at 8.) Further, GCH argues “[a]fter Plaintiff saw all three of those
links, he affirmatively agreed to be bound by the Customer Agreement when he clicked the
checkbox directly below two of those links.” (Id. at 8–9 (citing Xu Decl. (ECF No. 17-2) ¶¶ 8–9,
16–17).) Therefore, GCH asserts the Customer Agreement and its provisions, including the forum

selection clause, are enforceable clickwrap. In opposition, Plaintiff argues the Customer
Agreement is not clickwrap because the Customer Agreement interface “does not provide a button
to click to agree to [] terms and conditions hyperlinked next to the button.” (ECF No. 24 at 15.)
Plaintiff asserts the Customer Agreement “is more like a sign-in wrap where the text next to the
button does not require the consumer to agree to a hyperlinked ‘terms of use’” because “instead,
the consumer is presented with a ‘statement’ in a grey box and is asked to click a button next to
the sentence ‘I have read and agree to the statement above.’” (Id. at 15–16.)
In contrast to clickwrap agreements, sign-in wraps do not “require the use to click on a box
showing acceptance of the ‘terms of use’ in order to continue.” Berkson v. Gogo LLC, 97 F. Supp.

3d 359, 399 (E.D.N.Y. 2015). Instead, “the website is designed so that a user is notified of the
existence and applicability of the site’s ‘terms of use’ when proceeding through the website’s sign-
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in or login process.” Id.
In Berkson, the court reviewed two agreements. The first agreement at issue arose from

Berkson’s alleged purchase of in-flight Wi-Fi on an American Airlines flight through Gogo, the
Wi-Fi provider. If a user were to visit Gogo’s webpage and purchase Wi-Fi services during the
time Berkson did, they were “confronted with two sign-in buttons on the Gogo webpage.” Id. at
373. One sign-in button stood entirely by itself in the upper right-hand corner of the webpage, with
no language requiring a consumer to agree to “terms of use.” Id. at 374. Another sign-in button
was located in the bottom left-hand corner of the webpage. Id. Above this button, the website
warns the user “By clicking ‘Sign in’ I agree to the ‘terms of use’ and ‘privacy policy.’” Id. The
court emphasized the “terms of use” and “privacy policy” appeared in lowercase font considerably
smaller than the “all caps ‘SIGN IN’ button,” and appeared to be hyperlinked. Id. Additionally,
clicking on the “SIGN IN” button did not display either the “terms of use” or “privacy policy.” Id.

The court also reviewed a second instance where a consumer could be bound by Gogo’s
terms. If a consumer were to create an account to access Gogo’s services, they would be led to a
page that stated: “By clicking ‘NEXT’ I agree to the terms of use and privacy policy.” Id. at 375.
The “terms of use” and “privacy policy” were hyperlinked but could only be accessed by clicking
the links—clicking on the “NEXT” button would not present either set of terms to the user. Id.
Classifying the agreement format as “sign-in wrap,” the Berkson court found Gogo “did not make
an effort to draw Berkson’s attention to its ‘terms of use.’” Id. at 404. Ultimately, the court found
Berkson was not bound by the agreement’s terms because the “hyperlink to the ‘terms of use’ was
not in large font, all caps, or in bold” and the “terms of use” were not “accessible from multiple

locations on the webpage,” while the “SIGN IN” button was “very user-friendly and obvious,
appearing in all caps, in a clearly delineated box in both the upper right hand and the lower left
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hand corners of the homepage.” Id. In other words, “[t]he importance of the ‘terms of use’ was
obscured by the physical manifestation of assent, in this case clicking the ‘SIGN IN’ button,

expected of a consumer seeking to purchase in-flight Wi–Fi.” Id.
The Customer Agreement at issue here arises when a customer applies to open an account
through forex.com. Plaintiff provides excerpts of the final page of the account application.1 (ECF
No. 24 at 16.) The portion of the account application Plaintiff attacks provides as follows:
By selecting the option, I confirm that all the information supplied
in this application is correct to my knowledge, and that [I] have read,
understood, and agreed to be bound by the terms of the customer
agreement. I understand that foreign exchange trading and margin
trading of contract for difference involve high risks and thus do not
suit every investor. I have read and understood all the information
provided to me, including the risk warning notice contained in the
customer agreement’s attachment 1.

(Id.) Importantly, on the application, the above text is in black, while the words “customer
agreement” appear in blue, underlined, and hyperlinked text. (ECF No. 24 at 16; ECF No. 17-2 ¶
12; ECF No. 24-5.) That is, within the three-sentence body of black text, there are two blue
hyperlinks referencing the Customer Agreement. These hyperlinks, if clicked, would lead a
consumer to the Customer Agreement, which contains the forum selection clause. (ECF No. 17-2
¶ 14.) Additionally, the text is presented in a light-grey box along with a check box next to the text
“I have read and agree to the statement above.” (ECF No. 24-5.) Below that, outside of the grey
box, there are two additional check boxes. (Id.) If the first box is checked, the customer agrees to

1 Plaintiff provides screenshots of GCH’s 2019 user interface. (ECF No. 24-5.) Among these
screenshots are: the above statement, as translated into English; and a screenshot of the entire
webpage where the above statement would be found. (Id.) While the full screenshot is not in
English, there is a line of check marks (presumably tracking the progress of the application), across
the top of the page. (See id.) To get to the page where the above text is found, it appears a user
would have to proceed through three earlier stages of the application.

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receive “news and promotion information” from forex.com. (Id.) If the second box is checked, the
customer agrees to “receive relevant information or services from affiliates of forex.com and third

parties.” (Id.) The text next to the second box, according to the untranslated, original version of
the webpage’s screenshot, also contains a blue hyperlink to the privacy agreement. (Id.)
Underneath the two check boxes outside the grey box is a large green button with the word
“submit” to complete the application process. (Id.) If an applicant does not check the box next to
the text “I have read and agree to the statement above,” the application will not be submitted, and
the webpage will display a message in red italicized font that states, “You must agree to all terms
in order to open an actual account.” (ECF No. 17-1 at 7.)
Plaintiff asserts “[t]he two links for ‘customer agreement’ are almost in the same color as
the background grey box, even less visible than the black letter texts.” (Id. at 16.) Further, “[t]here
is no prominent button that says ‘I Agree’ next to the link for the contract,” which the Berkson

court earmarked as a feature of a valid clickwrap agreement. (Id.) Lastly, “[t]he links are also much
further away from the prominent button than the invalid sign-in wraps in Berkson which display
the links right above the buttons.” (Id.)
The Court disagrees with Plaintiff. The words “customer agreement” are blue and
underlined—the words stand out from the rest of the words in the text box, which are all black and
not underlined. While there is no “I agree” button next to the link for the contract, courts in this
district have enforced agreements with similar features as the Customer Agreement here. See
Mucciariello, 2019 WL 4727896, at *4; see also Manopla v. Raymours Furniture Co., Inc., Civ.
A. No. 3:17-7649, 2018 WL 3201800, at *4 (D.N.J. June 29, 2018) (finding plaintiff had

reasonable notice of a forum selection clause when plaintiff checked a box stating “I have read
and agreed to the Official Rules” and a hyperlink “signaled by blue ink” told “a user that clicking
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the words ‘Click Here’ would send a user to a different page” containing the forum selection
clause). In Mucciariello, the plaintiff “was required to provide her personal and billing

information, before clicking on the ‘Book Now’ icon to confirm her purchase.” Id. Underneath the
“Book Now” icon, the webpage contained the message “by clicking Book Now and making a
reservation, I acknowledge that I have read and agree to be bound by [the] . . . Terms and
Conditions.” Id. (internal citations omitted). In finding the plaintiff had reasonable notice of the
hyperlinked “Terms and Conditions,” which contained a forum selection clause, the court relied
on the existence of the message affirming the plaintiff had read the “Terms and Conditions” and
the presentation of the “Terms and Conditions” on the webpage, which, as here, “were highlighted
in blue, in contrast to the surrounding black text” since “that language clearly appeared as a
hyperlink that immediately directed the user” to the “Terms and Conditions.” Id. When a user is
“required to take affirmative action to manifest assent and [is] informed that such action will

comprise their assent to the displayed terms,” that agreement is an enforceable clickwrap
agreement. James v. Glob. Tel*Link Corp., Civ. A. No. 13-4989, 2016 WL 589676, at *7 (D.N.J.
Feb. 11, 2016), aff’d sub nom., James v. Glob. TelLink Corp, 852 F.3d 262 (3d Cir. 2017); see also
Davis v. Dell, Inc., Civ. A. No. 07-630, 2007 WL 4623030, at *4 (D.N.J. Dec. 28, 2007), aff’d, Civ.
A. No. 07-630, 2008 WL 3843837 (D.N.J. Aug. 15, 2008) (providing that clickwrap agreements
appear ‘“on an internet webpage and require[] that a user consent to any terms or conditions by
clicking on a dialog box on the screen in order to proceed with the internet transaction.’” (quoting
Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236 (E.D. Pa. 2007))). This affirmative assent can
come through checking a box for the terms of service when setting up an account over the Internet,

as Plaintiff did here. See James, 2016 WL 589676, at *7; Davis, 2007 WL 4623030, at *4 (holding
that, under New Jersey law, “when a party uses his computer to click on a button signifying his
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acceptance of terms and conditions in connection with an online transaction, he thereby manifests
his assent to an electronic agreement”). Plaintiff testified he remembered seeing the statement with

the Customer Agreement hyperlinks and checking the box indicating his assent to the terms of the
Customer Agreement. (Zhang Decl. (ECF No. 24-1) ¶¶ 27–28 (“I remember that I have seen this
‘statement’ box before” and “[a]pparently I checked the box saying ‘I have read and agree to the
statement above’”).) Because Plaintiff affirmatively checked a box confirming acknowledgment
of the Customer Agreement and because the Customer Agreement was conspicuously presented
twice in blue hyperlinked text against a background of black text, the application is an enforceable
clickwrap agreement.
Next, GCH argues Plaintiff cannot demonstrate the forum selection clause is unreasonable.
(ECF No. 17-1 at 11.) Plaintiff argues the forum selection clause is unconscionable under New
Jersey law. (ECF No. 24 at 20–23.) The Court agrees with GCH.

“[F]orum selection clauses are ‘prima facie valid and should be enforced unless
enforcement is shown by the resisting party to be “unreasonable” under the circumstances.’”
Foster v. Chesapeake Ins., 933 F.2d 1207, 1219 (3d Cir. 1991) (citing Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 10 (1907)). That is, the forum selection clause will be enforced unless the party
objecting to the clause’s enforcement can establish “(1) that it is the result of fraud or overreaching,
(2) that enforcement would violate a strong public policy of the forum, or (3) that enforcement
would in the particular circumstances of the case result in litigation in a jurisdiction so seriously
inconvenient as to be unreasonable.” Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d
190, 202 (3d Cir. 1983); City of Sterling Heights Police & Fire Ret. Sys. v. Reckitt Benckiser Grp.

PLC, Civ. A. No. 21915382, 2020 WL 7022654, at *2 (D.N.J. Nov. 30, 2020). As other courts
have observed, “unconscionability and lack of mutuality between the parties are not defined
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in Coastal Steel as grounds on which to find a forum selection clause unenforceable.” C.I.N.
Const., LLC v. Hunt Const. Grp., Inc., Civ. A. No. 08-5810, 2009 WL 2998965, at *6 (D.N.J. Sept.

18, 2009). Importantly, “[f]orum selection clauses are routinely upheld, even in situations
involving adhesion contracts, unequal bargaining power, and the absence of negotiations over the
clause.” Home Source Indus., LLC v. Freightquote.com, Inc., Civ. A. No. 14-2001, 2014 WL
6609051, at *5 (D.N.J. Nov. 19, 2014).
Even though Plaintiff has not submitted arguments under the three recognized grounds for
finding forum selection clauses unreasonable, the Court will still review Plaintiff’s arguments for
procedural and substantive unconscionability. Plaintiff contends the forum selection clause is
procedurally unconscionable because the design of the application buried the Customer
Agreement, so it is not surprising “Plaintiff did not pay any attention to the embedded customer
agreement.” (ECF No. 24 at 20–21.) Additionally, Plaintiff points to the fact that it only takes five

minutes to apply for and open an account with GCH as evidence that “Defendant has known all
along that its 2019 Interface has fooled nearly all of its users not to click and read the customer
agreement containing the forum selection clause when they clicked the box saying they have read
and agreed to the statement” with the links to the agreement. (ECF No. 24 at 22.)
First, because the Court found the format and layout of the application provided Plaintiff
with reasonable notice of the Customer Agreement, Plaintiff’s argument that GCH’s interface
“buried” the terms of the Customer Agreement is unavailing. To the extent Plaintiff argues he “did
not pay any attention” to the Customer Agreement, the Court is unpersuaded, as “[a] failure to read
the terms and conditions, and specifically, the forum selection clause, does not render the forum

selection clause invalid or diminish its force and effect.” Home Source Indus., 2014 WL 6609051,
at *5; Toll Bros., Inc. v. Fields, Civ. A. No. 10-04606, 2011 WL 463090, at *3 (D.N.J. Feb. 4,
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2011) (“[F]ailure ‘to read a contract does not excuse performance unless fraud or misconduct by
the other party prevented one from reading.’” (quoting Young v. Prudential Ins. Co. of Am., 688

A.2d 1069, 1077 (N.J. Super. Ct. App. Div. 1997))). GCH’s alleged representation that the account
application process takes only five minutes, (see ECF No. ¶ 8; ECF No. 24 at 5), does not render
the forum selection clause procedurally unconscionable either. See Valelly v. Merrill Lynch,
Pierce, Fenner & Smith Inc., 464 F. Supp. 3d 634, 643 (S.D.N.Y. 2020) (enforcing agreement
despite the plaintiff’s argument that “Defendant’s advertising estimates that opening a self-directed
account can be accomplished in only ten minutes,” which “suggests that Defendant does not
encourage or expect applicants to read its disclosures in their entirety”). Therefore, the forum
selection clause is not procedurally unconscionable.
Regarding substantive unconscionability, Plaintiff argues the “forum selection clause was
‘snuck’ into Plaintiff’s relationship with GainCap without Plaintiff’s consent” and because “[t]he

design of the 2019 Interface also makes it entirely unexpected for Plaintiff to be signing a contract
with a subsidiary of GainCap with which he did not even know he had any connection.” (ECF No.
24 at 23.) That is, Plaintiff did not believe he was only dealing with GCH as a subsidiary. (Zhang
Decl. (ECF No. 24-1) ¶ 14.) Plaintiff’s support for this appears to come from an “About Us” page,
attached as Exhibit A to Plaintiff’s opposition. (Ex. A to Zhang Decl. (ECF No. 24-2).) The “About
Us” page, translated from Chinese to English by Plaintiff’s interpreter, makes no mention of
subsidiaries. (See id.) However, a translated version of the same page presented by GCH suggests
Plaintiff’s translator purposely left out mention of the subsidiaries in the translation. (Ex. C to
Wong Decl. (ECF No. 26-4) (presenting redlined version of Plaintiff’s translation of the “About

Us” page and demonstrating Plaintiff left out the following: GCH is “regulated in 7 jurisdictions
worldwide through our subsidiaries . . . .”) (emphasis added).) Plaintiff also stated he believed he
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could litigate in the United States, and not the Cayman Islands, because GCH was “listed on the
NYSE and regulated by U.S. regulatory bodies such as NFA and CFTC.” (ECF No. 24-1 ¶ 33.)

However, the “About Us” page Plaintiff relies upon—even the one provided by Plaintiff’s own
translator—lists GCH as subject to the regulatory authority of the Cayman Islands Monetary
Authority. (See ECF No. 24-2.) The fact that the Cayman Islands is listed as one of GCH’s
regulators forecloses Plaintiff’s argument that the forum selection clause was so unexpected as to
render it substantively unconscionable.
B. The Application of the Forum Selection Clause
GCH argues the forum selection at issue applies to this action because it covers all of
Plaintiff’s claims. (ECF No. 17-1 at 13–15.) Plaintiff argues nearly all of the loss at issue in this
case arises out of his first account opened with GCH in 2017 (“Account I”), which is not subject
to the forum selection clause. (ECF No. 24 at 6–7.) Additionally, Plaintiff contends GCH has no

standing to evoke the forum selection clause under the second account Plaintiff opened in 2019
(“Account II”). The Court agrees with GCH.
The forum selection clause at issue, according to Plaintiff, provides the following:
The Agreement and our relations before we entered into this
Agreement shall be governed and construed in accordance with
Cayman Islands Law. The Courts of Cayman Islands will have
exclusive jurisdiction over any claim or matter arising under or in
connection with the Agreement and the legal relationships
established by the Agreement.

(Ex. C to Xu Decl. (ECF No. 17-5) ¶¶ 33.1–33.2.) Courts routinely find forum selection clauses
properly apply to claims arising out of contractual relationships, like Plaintiff’s tort and contract
claims here. In re McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d 48, 68 (3d Cir. 2018)
(providing that “we recognize that we should not permit a party to avoid a forum selection clause
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simply by pleading non-contract claims”); Crescent Int’l, Inc. v. Avatar Communities, Inc., 857
F.2d 943, 944 (3d Cir. 1988) (finding that “pleading alternate non-contractual theories is not alone

enough to avoid a forum selection clause if the claims asserted arise out of the contractual relation
and implicate the contract’s terms”); Coastal Steel Corp., 709 F.2d at 203 (same). Therefore, the
forum selection clause applies to Plaintiff’s claims.
Plaintiff attempts to avoid application of the forum selection clause by arguing the clause
cannot apply to Account I—the account that makes up “95% of loss at issue in this case.” (ECF
No. 24 at 6.) As discussed, by checking the box on the account application, Plaintiff manifested
an intent to be bound by the Customer Agreement’s terms. The Customer Agreement itself clarifies
its application to Account I and Account II, as it “supersedes all our previous terms and conditions
and any amendments thereto” and applies “separately to each Account.” (ECF No. 17-5 ¶¶ 1.1,
3.1.) Further, the Customer Agreement “governs [GCH’s] trading services and all transactions we

conduct with you.” (Id. ¶ 1.1.) Therefore, by manifesting assent to the Customer Agreement when
opening Account II in 2019, the terms within the Customer Agreement applied to all accounts
Plaintiff had with GCH at the time, including Account I.
Lastly, Plaintiff argues GCH lacks standing to enforce the forum selection clause. (ECF
No. 24 at 9–11.) The Third Circuit has held “that a forum-selection clause ‘can be enforced only
by the signator[y] to [the] agreement[].’” In re: Howmedica Osteonics Corp, 867 F.3d 390, 407
(3d Cir. 2017) (quoting Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1293–97 (3d Cir. 1996)).
However, “[u]nder traditional principles of contract law, non-signatories may be bound by a forum
selection clause if they are intended third-party beneficiaries of the contract, or if they

are closely related parties.” In re McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d 48, 59 (3d
Cir. 2018). “In determining whether a non-signatory is closely related to a contract, courts consider
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the non-signatory’s ownership of the signatory, its involvement in the negotiations, the relationship
between the two parties and whether the non-signatory received a direct benefit from the

agreement.” Carlyle Inv. Mgmt. LLC v. Moonmouth Co. SA, 779 F.3d 214, 219 (3d Cir. 2015). As
Plaintiff points out, the court in McGraw-Hill found the “closely-related doctrine” inapplicable
under the facts presented before the court. (ECF No. 24 at 10.) In that case, McGraw-Hill attempted
to argue the “closely-related doctrine” should apply to bind certain photographers to agreements
between McGraw-Hill and Corbis Corporation, a stock photography agency. In re McGraw-Hill,
909 F.3d at 62–63. The Third Circuit declined to apply the “closely-related doctrine,” in part,
because it was “clear the photographers were not in an ownership or subsidiary relationship with
Corbis.” Id. at 63. Here, GCH, the parent of GGMI, is trying to enforce the forum selection clause
against Plaintiff. Importantly, the Customer Agreement explicitly provides for enforcement by any
of GGMI’s affiliates. (ECF No. 17-5 ¶ 31.5 (“The Agreement may, however, be enforced by any

of our Affiliates. We do require the consent of our Affiliates or any other third party to vary,
amend, modify, suspend, cancel or terminate any provision of the Agreement.”).) Therefore, due
to the Customer Agreement’s explicit terms, it is foreseeable that GCH, as GGMI’s corporate
parent, could enforce the forum selection clause against Plaintiff. In re McGraw-Hill, 909 F.3d at
64. Accordingly, the forum selection clause applies to both Account I and II.
C. Forum Non Conveniens Analysis

Because the forum-selection clause was not unreasonable and applies to Plaintiff’s claims,
the Court must analyze the Atlantic Marine factors.
1. Availability of an Adequate Alternative Forum
“A successful forum non conveniens motion also requires the availability of an adequate
alternative forum.” Wilmot v. Marriott Hurghada Mgmt., Inc., 712 F. App’x 200, 203 (3d Cir.
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2017) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981)). An alternative forum “is
available if all defendants are amenable to process there” and it is generally adequate if “the

plaintiff’s claim is cognizable in the forum’s courts.” Id. (citing Piper, 454 U.S. at 254). Here, the
alternative forum the Court must consider is the Cayman Islands. A defendant is “amenable to
process” in an alternative forum if they consent to jurisdiction in the alternative forum. See id. at
204 (finding that the United Kingdom and Egypt were both adequate alternative fora because the
defendant “consented to jurisdiction and service of process in both countries”); Meridian
Consulting I Corp., 2021 WL 689132, at *15 (finding that “because EuroTec is located in Ontario
and also agreed to jurisdiction there, I am satisfied that it would be amenable to process there”).
Here, GCH consented to the jurisdiction of the Cayman Islands by selecting it as an alternative
forum in its forum selection clause. See Hage, 2020 WL 3056442, at *7 (finding that the defendant
was “amenable to process in Texas state court” because it “expressly consented to the jurisdiction

of the Texas state court by agreeing to the Texas forum-selection clause”). Therefore, GCH is
amenable to process in the Cayman Islands. Additionally, while Plaintiff repeatedly disputes his
claims’ connection to the Cayman Islands, he does not argue his claims would not be cognizable
in Cayman courts. (See generally ECF No. 24.) Because Plaintiff has not demonstrated he would
be “deprived of any remedy” if required to litigate his claims in the Cayman Islands, Trotter v. 7R
Holdings LLC, 873 F.3d 435, 434–44 (3d Cir. 2017), the Court finds the Cayman Islands is an
adequate alternative forum.
2. Public Interest Factors

The factors courts consider on a motion to dismiss for forum non conveniens include:

the administrative difficulties flowing from court congestion; the
“local interest in having localized controversies decided at home”;
the interest in having the trial of a diversity case in a forum that is at
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home with the law that must govern the action; the avoidance of
unnecessary problems in conflict of laws, or in the application of
foreign law; and the unfairness of burdening citizens in an unrelated
forum with jury duty.

Piper Aircraft, 454 U.S. at 241 n.6 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947)).
“This list of considerations to be balanced is by no means exhaustive, and some factors may not
be relevant in the context of a particular case.” Van Cauwenberghe v. Biard, 486 U.S. 517, 528–
29 (1988). The Court will not address any private interest factors because, as noted above, when a
valid forum selection clause applies, courts “must deem the private-interest factors to weigh
entirely in favor of the preselected forum.” Atl. Marine, 571 U.S. at 64. Therefore, the arguments
Plaintiff presents regarding the private interests in this action are unpersuasive. (ECF No. 24 at 7–
9.) Plaintiff argues the public interest “certainly does not favor Cayman Islands” because “New
Jersey is the corporate headquarters of GainCap, which is the owner of forex.com, the platform
that Plaintiff signed up Account I,” and “[t]he bank account that received Plaintiff’s deposit is
located in New York with the listed address of the account owner being in New Jersey.” (Id. at 9.)
Plaintiff also argues the “State of New Jersey and the U.S. federal government certainly have
significant interests in preventing a New Jersey-based corporation from engaging in the
wrongdoings alleged in the Complaint.” (Id.) However, none of these arguments involve the public
factors. See Gulf Oil, 330 U.S. at 509. Instead, a few public interest factors support dismissal. First,
New Jersey does not have a “local interest” in deciding a “localized controvers[y]” at home, since
Plaintiff is a Chinese resident that contracted with a Cayman Islands business regulated by the
Cayman Islands Monetary Authority. See Atl. Marine, 571 U.S. at 62 n.6 (listing private and public
interest factors). And second, since Cayman law applies to the claims in this action, “having a trial
of a diversity case in a forum that is at home with the law that must govern” also favors the Cayman
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Islands in this diversity action. Therefore, Plaintiff has not carried his burden under either prong
of the forum non conveniens inquiry.

Because Plaintiff has not carried his burden, the Court dismisses this action for forum non
conveniens and need not reach the issue of whether the Complaint should be dismissed for failure
to state a claim under Rule 12(b)(6). See Hage, 2020 WL 3056442, at *9 (dismissing under
doctrine of forum non conveniens and deciding not to reach “merits of whether the Complaint fails
to state a claim”). Additionally, because the Court finds amendment would be futile, dismissal of
Plaintiff’s Complaint pursuant to the doctrine of forum non conveniens is with prejudice. “When
a plaintiff does not seek leave to amend a deficient complaint after a defendant moves to dismiss it,
the court must inform the plaintiff that he has leave to amend within a set period of time, unless
amendment would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002); Hage, 2020 WL 3056442, at *9 (dismissing case for forum non conveniens and

dismissing complaint with prejudice because “granting Plaintiff leave to amend the Complaint
would be futile”); Chisso Am., Inc. v. M/V HANJIN OSAKA, 307 F. Supp. 2d 621, 626 (D.N.J.
2003) (granting motion to dismiss based on forum selection clause and dismissing complaint with
prejudice).
IV. CONCLUSION
For the reasons set forth above, GCH’s Motion to Dismiss pursuant to the doctrine of forum
non conveniens is GRANTED and its Motion to Dismiss for failure to state a claim is DENIED
AS MOOT.

Date: May 25, 2021 /s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270676. Public record. Not legal advice.