If You Give a Mouse a Forum Selection Clause…

Image by dimitrisvetsikas1969 from Pixabay

Many U.S. states have chosen to write “anti-waiver” provisions into statutory schemes that confer rights on in-state residents. Anti-waiver statutes provide that rights conferred by the statutory scheme cannot be waived. On a number of occasions, the courts have adopted “If You Give a Mouse a Cookie” logic to hold that these statutes invalidate forum selection clauses choosing the courts of another jurisdiction. That logic runs something like this:

(1) Enforcing the forum selection clause will lead to the enforcement of a choice-of-law clause selecting a jurisdiction with less favorable law;

(2) Applying the less favorable law will result in the waiver of non-waivable rights conferred by the statutory scheme;

(3) To avoid this outcome, the court should refuse to enforce the forum selection clause in the first instance.

This line of reasoning has been embraced by courts across the United States. Nevertheless, a court in Wisconsin recently declined to invalidate a Belgian forum selection clause notwithstanding a clear anti-waiver statute in the Wisconsin Fair Dealership Law. In this post, I critique that decision.

Kinetec USA, Inc. v. MedEnvision BV

Kinetec USA, Inc. (Kinetec), is a Wisconsin corporation headquartered in Wisconsin. Kinetec is a wholly owned subsidiary of a Belgian company and distributes medical equipment in the United States. In 2017, Kinetec entered into a distribution agreement with MedEnvision BV (MedEnvision), a medical technology company based in Belgium, to serve as its distributor in the United States. The agreement was for an indefinite term and contained a Belgian choice-of-law provision and an exclusive forum selection clause choosing the commercial court in Leuven, Belgium.

In April 2024, MedEnvision informed Kinetec that it planned to terminate the distribution agreement. In March 2026, Kinetec brought a lawsuit against MedEnvision in the U.S. District Court for the Eastern District of Wisconsin (Judge Byron B. Conway) alleging violations of the Wisconsin Fair Dealership Law (WFDL). MedEnvision moved to dismiss for forum non conveniens based on the Belgian forum selection clause.

Kinetec argued that the forum selection clause was unenforceable because the WFDL contained an express anti-waiver provision. If the case was heard in Belgium, it argued, then the Belgian court would very likely enforce the Belgian choice-of-law clause. Because Belgian law is less protective of dealers than the WFDL, Kinetec continued, the application of Belgian law would result in the waiver of non-waivable rights conferred by the Wisconsin legislature. The only way to avoid this outcome, the company concluded, was for the court to refuse to enforce the forum selection clause.

The court acknowledged that whether “a forum selection clause is enforceable in a WFDL action comes down to whether the contracted forum will protect and enforce the dealer’s rights under the WFDL.” It further observed that the essential question was “whether Kinetec can pursue its WFDL claim in the commercial court in Leuven, Belgium.” The court ultimately concluded, however, that “it is likely that Kinetec could litigate its WFDL claims in the commercial court in Leuven, Belgium.” Accordingly, it held that the forum selection clause was enforceable and granted the defendant’s motion to dismiss.

Analysis

I am far less confident than Judge Conway that a Belgian court will apply the WFDL.

As noted above, the distribution agreement between Kinetec and MedEnvision contains a Belgian choice-of-law clause. In my experience, when a court is presented with a choice-of-law clause in a contract negotiated between two sophisticated parties, it will generally apply the law of the jurisdiction named in the clause. It will not ignore that clause and apply a statutory scheme enacted by a distant jurisdiction (Wisconsin) that seeks to protect in-state companies in their dealings with foreign companies.

This intuition is consistent with the outcome of a recent case in Washington State. In ACD Distribution, LLC v. Wizards of the Coast, LLC, the plaintiff was a Wisconsin-based distributor who brought a WFDL claim against a Washington-based manufacturer in Wisconsin. After the court transferred the case to Washington based on an exclusive Washington forum selection clause, the federal court in Washington invoked a Washington choice-of-law clause in the same contract to hold that the WFDL was inapplicable. In light of this decision—which is cited and discussed at some length in Kinetec USA—I am baffled as to why Judge Conway believes that a Belgian court is likely to apply Wisconsin law in the face of the Belgian choice-of-law clause.

Conclusion

The logic of anti-waver is widely recognized as a valid basis for declining to enforce a forum selection clause. In Kinetec USA, Inc. v. MedEnvision BV, the court accepted this premise but then inexplicably concluded that a Belgian court would likely apply Wisconsin law to resolve the dispute between the parties. This outcome strikes me as implausible for the reasons stated above. While predicting the future is never easy, one doesn’t need a crystal ball to predict that a Belgian court is likely to enforce a Belgian choice-of-law clause in an international commercial contract negotiated between two sophisticated companies.