POPOWICZ v. METROPLEX TRADING COMPANY LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JUSTIN POPOWICZ, 	:
: 	CIVIL ACTION
Plaintiff, 	: 	No. 26-3564
:
v. 	:
:
METROPLEX TRADING COMPANY LLC, 	:
doing business as GRABAGUN 	:
:
Defendant. 	:
McHUGH, J. 	October 13, 2026
MEMORANDUM
This putative class action, like many recent cases, addresses the issue of internet privacy
and whether online merchants violate Pennsylvania state privacy laws while collecting data from
consumers. Plaintiff, Justin Popowicz, individually and on behalf of all others similarly situated,
alleges 	that 	Defendant 	Metroplex—which 	does 	business 	as 	GrabAGun—violated 	two
Pennsylvania privacy statutes when it collected data related to a firearm purchase. 	GrabAGun
moves to dismiss on jurisdictional grounds and for failure to state a claim. Alternatively, it requests
transfer to Texas based on a forum selection clause in the pre-sale terms and conditions. Because
I conclude that this clause is valid and enforceable, I will grant Defendant’s motion to transfer to
the Northern District of Texas.1
1 	District courts “have discretion to address convenience-based venue issues in the first instance and …
should suspend concerns about other threshold issues while doing so.” Reading Health Sys. v. Bear Stearns
& Co., 900 F.3d 87, 95 (3d Cir. 2018) (internal quotation marks omitted); see also United States v.
Berkowitz, 328 F.2d 358, 361 (3d Cir. 1964) (holding that transfer under § 1404(a) is permitted when courts
do not have personal jurisdiction over defendants). In other words, “[a] court may … first analyze the
question of venue when the resolution of the venue issue resolves the case before the Court.” Cumberland
Truck Equipment Co. v. Detroit Diesel Corp., 401 F.Supp.2d 415, 419 (E.D. Pa. 2005) (internal quotation
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I. 	Facts as pleaded
Plaintiff, a Pennsylvania resident, purchased a firearm from Defendant via its website in
June of 2024. 	Compl. ¶ 6, ECF 2. 	Defendant is a national purveyor of firearms and firearm
accessories, headquartered in Texas. 	Id. ¶ 8; Def. Mot. Dismiss, Ex. A, ECF 15. 	The website,
www.grabagun.com, hosts software from Google, which intercepts data from the site’s visitors,
processes that data, stores it, and then uses it to generate reports on user activity. Compl. ¶¶ 28–
29, ECF 2. It also collects personally identifiable information, including a hashed version of the
user’s email address. Id. ¶ 43. It then utilizes this information for targeted advertising. Id. ¶ 44.
Defendant’s website also hosts code for a customer engagement platform called Listrak,
which allows its hosts to build customer profiles. Id. ¶¶ 46–47. Listrak creates unique session IDs
for each visit to the website and matches it to existing profiles. Id. ¶ 49. It intercepts both specific
information on the items being purchased as well as personally identifiable information, even when
the feature is disabled. Id. ¶¶ 49–50; 53.
Plaintiff alleges that his data was intercepted without consent in violation of both the
Pennsylvania Wiretapping Act, 18 Pa.C.S. § 5701, et seq., and the Uniform Firearms Act, 18
Pa.C.S. § 6111(i). 	Compl. ¶¶ 72–82; 83–89, ECF 2. 	Defendant filed a motion to dismiss or
transfer, invoking a forum selection clause within the terms and conditions Plaintiff signed to
effectuate his purchase. Mot. to Dismiss 21, ECF 15-4. In support, Defendant included a copy of
the website terms as of June 29, 2026, just prior to filing, as well as a copy as they appeared on the
date of Plaintiff’s purchase. Id. Ex. A; Ex. B. Plaintiff responded to the motion by contesting the
marks omitted). 	Here, resolving the venue issue “resolves the case before the court,” and therefore a
decision based on venue without a jurisdictional analysis is proper.
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agreement’s validity, and included a screenshot of text, with a sworn declaration by Plaintiff’s
counsel—but not Plaintiff himself—stating only that the screenshot “is a true and correct copy of
the checkout page as the image appears on Defendant’s website.” Pl. Response to Mot. to Dismiss,
Ex. A, ECF 17. This image does not include the forum selection clause language and does not
show a link to additional terms. Id. Defendant in turn responded with its own screenshot, showing
the entire checkout screen, including a blue, bold, and underlined hyperlink to “Read More” which
contains the clause. Def. Reply, Ex. A-1, ECF 18. The link is directly underneath the text that
Plaintiff cites and adjacent to the box that users must click to continue. 	Id. 	This screenshot is
accompanied by a second sworn declaration from Mr. Hinton, authenticating it and attesting that
it has looked the same since 2018, prior to Plaintiff’s purchase. Id., Hinton Decl. Defendant also
included an authenticated screenshot of the error page that would display if a user attempted to
complete a purchase without clicking the box next to these terms and the hyperlink. Id. Ex. A-2.
II. 	Standard of Review
Under 28 U.S.C. § 1404(a), a district court may transfer a civil action to another district
when convenient.2 Because “the plaintiff’s choice of venue should not be lightly disturbed,” the
burden of establishing the need for the transfer rests on the movant, who typically must
demonstrate that both private and public interests warrant it. Jumara v. State Farm Ins. Co., 55
F.3d 873, 879 (3d Cir. 1995). But when a valid forum selection clause applies to the action, private
interests are waived and the party resisting transfer “must bear the burden of showing that public-
interest factors overwhelmingly disfavor a transfer.” Atl. Marine Constr. Co. v. U.S. Dist. Court,
2 “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any
civil action to any other district or division where it might have been brought or to any district or division
to which all parties have consented.” 28 U.S.C. § 1404(a).
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571 U.S. 49, 67 (2013). Therefore, “‘[i]n all but the most unusual cases,’ the parties will be held
to their bargained-for choice of forum.” In re McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d
48, 58 (3d Cir. 2018) (quoting Atlantic Marine, 571 U.S. at 66).
The movant may support its § 1404(a) motion with “affidavits, depositions, stipulations,
or other documents containing facts.” Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756 (3d Cir.
1973). District courts are not limited to the pleadings when deciding a § 1404(a) motion and may
consider affidavits and other evidence to resolve factual disputes. Roller v. Red Payments L.L.C.,
No. 18-1834, 2019 WL 3802031, at *4 (E.D. Pa. Aug. 12, 2019) (citing in part Atlantic Marine,
571 U.S. at 61 n.4); see also Breach v. Loadsmart, Inc., No. 23-1493, 2024 WL 343178, at *3 n.
8 (E.D. Pa. Jan. 30, 2024) (noting that the transfer standard allows for consideration of affidavits
beyond the pleadings).
III. 	Discussion
Whether Plaintiff agreed to the Terms and Conditions
Defendant’s motion for transfer relies solely on language within the terms and conditions
which it contends applied to the transaction, which provide: “By checking the Terms & Conditions
box, to accept, I agree … the jurisdiction of any proceedings will take place in Dallas County.”
Mot. to Dismiss, ECF 15, Ex. A. As a preliminary issue, Plaintiff contends that he is not bound
by the terms and conditions containing the forum selection clause because he did not have
sufficient notice of them prior to completing his purchase. 	The parties present conflicting
evidence, but Defendant’s is more convincing, as discussed below.
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1. 	Plaintiff failed to show that he did not click to confirm his assent to the Terms
and Conditions
Plaintiff first contends that the forum selection clause is contained in an unenforceable
clickwrap contract. In the response to the motion to dismiss, Plaintiff’s attorney included a screen
shot purporting to reproduce the “screen Plaintiff saw before completing his purchase.” Resp. to
Mot. to Dismiss 11, ECF 17. The screenshot does not display a hyperlink to the terms of service
and shows text next to a clickable button that does not include the contested clause. Nothing else
is shown, including a URL, a shopping cart, fields for entering shipping and payment information,
or other hallmarks of a checkout page. Because of this, Plaintiff argues that the relevant clause
was not adequately conspicuous, and therefore not binding.
Plaintiff’s counsel notably excludes from their sworn declaration any statement that
Plaintiff himself saw the screen as presented. 	That conclusion is stated solely in the motion,
whereas the sworn declaration attests only that the image is “a true and correct copy of the checkout
page as it appears on Defendant’s website.” Pl. Resp. to Mot. to Dismiss, Leslie Decl., ECF 17.
In opposition, Defendant supports its response with exhibits and sworn statements based on
firsthand knowledge about the website’s design at the time Plaintiff made his purchase, as well as
statements that all purchasers must accept the terms prior to purchase. Def. Reply, Second Hinton
Decl., ECF 18. This is buttressed by the prior sworn declaration that Plaintiff did in fact accept
the terms, twice. Mot. to Dismiss Ex. A, ECF 15.
Unsworn conclusions and allegations by counsel have little evidentiary value, and cannot
form the basis for transfer decisions. Bombin v. Sw. Airlines Co., 529 F.Supp.3d 411, 417 (E.D.
Pa. 2021). 	Because Plaintiff has not provided any evidence beyond his motion about what he
personally observed on the date in question, I afford the declaration from Plaintiff’s counsel little
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weight. In contrast, Defendant has provided ample evidence establishing the layout of the page at
the time Plaintiff completed his purchase, including sworn declarations confirming its authenticity
at the time Plaintiff made his purchase. I will proceed with my analysis of the enforceability of
the agreement based on the conclusion that Defendant has accurately described what Plaintiff
would have encountered on its website when making his purchase.
2. 	The clickwrap agreement is valid
Having determined that Plaintiff made his purchase in the manner described by Defendant,
I must now determine whether that action created a valid agreement. 	Clickwrap agreements
“require[] that a user consent to any terms or conditions by clicking on a dialog box.” Feldman v.
Google, Inc., 513 F.Supp.2d 229, 236 (E.D. Pa. 2007). 	They are generally enforceable if they
satisfy traditional demands of contract law. 	See Swartz v. ESPN Inc., No. 22-1523, 2026 WL
1507403, at *6 (M.D. Pa. May 29, 2026). A “true and actual meeting of the minds” is not necessary
to form a contract, so long as “the intent a reasonable person would apprehend in considering the
parties’ behavior” indicates an intention to be bound. Am. Eagle Outfitters v. Lyle & Scott Ltd.,
584 F.3d 575, 582 (3d Cir. 2009) (quoting Ingrassia Constr. Co., Inc., v. Walsh, 486 A.2d 478,
482 (Pa. Super. Ct. 1984)). 	Nor is it necessary for the user to have actually read the terms and
conditions. Swartz, 2026 WL 1507403, at *6 (citing Nicosia v. Amazon.com, Inc., 834 F.3d 220,
232 (2d Cir. 2016)).
For clickwrap agreements, “the occurrence of mutual assent turns on whether the consumer
had reasonable notice” of the terms. Dobbs v. Health IQ Ins. Servs., Inc., No. 21-5276, 2022 WL
2974713, at *3 (E.D. Pa. July 27, 2022) (citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171,
1177 (9th Cir. 2014)). “A user has notice where the terms of service are conspicuous and presented
in a way that a ‘reasonably prudent internet user’ would notice them.” Swartz, 2026 WL 1507403,
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at *7 (citing Checchia v. SoLo Funds, Inc., 771 F.Supp.3d 594, 611 (E.D. Pa. 2025)). The relevant
terms can be contained in a hyperlink, but best practices include underlining or capitalizing the
linked text and highlighting it in a contrasting font color. Wiggins v. Lab’y Corp. of Am. Holdings,
No. 24-0648, 2024 WL 4476646, at *9 (E.D. Pa. Oct. 11, 2024). Hyperlinks are traditionally blue,
but other bold, distinct colors are permissible so long as they clearly indicate that the user can click
the text. Checchia, 771 F.Supp.3d at 609. The link should be conspicuously placed as well, such
that its placement logically indicates that it is applicable to the statement that the user is agreeing
to. Id. at 610–611. Finally, the language must inform the user that the action they are taking is
legally significant and binds them to the terms. Swartz, 2026 WL 1507403, at *7 (“A webpage
[can notify users of the legal significance of their action] by including language such as ‘By
clicking the Continue >> button, you agree to the Terms & Condition.’”) (quoting Berman v.
Freedom Fin. Network, LLC, 30 F.4th 849, 858 (9th Cir. 2022)) (alteration in original).
Here, the sworn declaration from Defendant establishes that the hyperlink was bold,
underlined, and blue, such that a reasonably prudent internet user would know that it was indeed
a hyperlink. 	It was directly below the excerpted text and the button that Plaintiff clicked. 	The
language within the box—“I agree to all Terms and Conditions”—is active and demonstrates that
clicking the box adjacent to it creates assent to those terms. And the linked-to agreement includes
the phrase, in bold: “By checking the Terms & Conditions box, to accept, I agree … that any
disputes will be governed by the laws of the State of Texas and the jurisdiction of any proceedings
will take place in Dallas County.” Mot. to Dism. Ex. A, ECF 15-2. The terms were conspicuous
and placed Plaintiff on notice of the agreement. Therefore, the clickwrap agreement is valid and
binding.
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Whether the Forum Selection Clause Itself is Valid and Enforceable
When a contract contains a forum selection clause, the § 1404(a) analysis is twofold. First,
the court must determine whether the clause is valid and enforceable. Mathias v. Caterpillar, Inc.,
203 F.Supp.3d 570, 575 (E.D. Pa. 2016). 	Forum selection clauses are “prima facie valid,” and
should be enforced unless doing so would be unreasonable. M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 10 (1972). The parties agree that to prove a clause is unreasonable, “[t]he objecting
party must show that (1) the forum selection clause is the result of fraud or overreaching, (2) its
enforcement would violate a strong public policy of the forum, or (3) its enforcement would result
in litigation so seriously inconvenient and unreasonable that it would deprive a litigant of his or
her day in court.” Feldman, 513 F.Supp.2d at 246.
Of these factors, Plaintiff only argues the second, pointing out that the action is brought
under two Pennsylvania statutes, which Pennsylvania judges apply regularly, and which
Pennsylvania has an interest in enforcing. But having already found that Plaintiff agreed to the
contract’s terms, it necessarily follows that he agreed to the choice of law provision in the same
agreement, with the result that Texas law applies. 	And “it would be consistent with the public
policy of this forum to enforce the forum selection clause in order to give force to the parties’
agreement.” Feldman, 513 F.Supp.2d at 247. It may be that the policy goals of Pennsylvania are
frustrated when its laws do not apply to a dispute involving one of its citizens, but I cannot say that
enforcing this contractual provision violates a strong public policy of the Commonwealth.
Plaintiff has not shown that the clause is unreasonable, and therefore the clause is valid.
Whether Extraordinary Circumstances Disfavor Transfer
The second step under § 1404(a) is for Courts to evaluate whether public interests alone
justify overriding the clause. 	Atlantic Marine, 571 U.S. at 64. 	These interests include: the
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enforceability of the judgment; practical considerations that could make the trial easy, expeditious,
or inexpensive; the relative administrative difficulty in the two fora resulting from court
congestion; the local interest in deciding local controversies at home; the public policies of the
fora; and the familiarity of the trial judge with the applicable state law in diversity cases. Jumara,
55 F.3d at 879–880. “Only under extraordinary circumstances unrelated to the convenience of the
parties should a § 1404(a) motion be denied.” 	Atlantic Marine, 571 U.S. at 62. 	No such
circumstances are present here.
Plaintiff focuses on the local interest in resolving local disputes, arguing that Pennsylvania
specifically sought to protect confidential information related to firearms purchases under 18 Pa.
C.S. § 6111(i). But the local interest factor is at best neutral. When the parties reside in separate
states, both fora have interests in adjudicated cases involving their residents. See Kilduff v. Jayco,
Inc., No. 23-470, 2023 WL 3361187, at *5 (E.D. Pa. May 10, 2023). It is difficult to describe a
dispute with two parties in different states as “local.”
No other factors weigh against transfer sufficiently to deem this case one of the
exceptionally rare ones contemplated by Atlantic Marine. 	The forum selection clause must
therefore be honored, and this matter will be transferred to the Northern District of Texas, as agreed
upon by the parties.
IV. 	Conclusion
For the reasons set forth above, Defendant’s motion to transfer under 28 U.S.C. § 1404(a)
will be granted. An appropriate order follows.
/s/ Gerald Austin McHugh
United States District Judge
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