Closely-Related-and-Foreseeable Test

The Sixth Circuit Tackles Forum Selection Clauses

When U.S. judges fight about forum selection clauses, they tend to fight about one of two things. First, they fight about whether a federal court sitting in diversity should apply state or federal law to determine whether a clause is valid and enforceable. Second, they fight about whether a non-signatory may be bound by a…

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Splitting the Difference on the Closely-Related-and-Foreseeable Test

Over the past decade, the lower federal courts have repeatedly considered whether non-signatories to a contract are bound by a forum selection clause if they are so “closely related” to a signatory that it is “foreseeable” that they would be bound. In some cases, their decisions are defensible, as discussed here. In others, their decisions…

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The Closely-Related-and-Foreseeable Test and Choice-of-Law Clauses

As a general rule, the law does not vest contractual rights in (or impose contractual obligations upon) persons who are not parties to an agreement. Over the past few decades, however, the courts have relaxed this rule for forum selection clauses. As previously discussed here and here and at great length here, many U.S. courts now hold that a…

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The Controversy over Non-Signatories to Forum Selection Clauses Goes Meta

Since the mid-1970s, forum selection clauses have become an increasingly pervasive feature of the contracting and litigation landscape. While scholars still debate whether and when certain parties to boilerplate contracts (such as consumers, employees, or other parties with limited bargaining power) should be bound to such clauses, a separate controversy has emerged over the extent…

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Non-Signatories, Forum Selection Clauses, and Personal Jurisdiction in the SDNY

Over the past few decades, U.S. courts have adopted a new legal test that makes it easier to bind individuals to forum selection clauses in contracts they did not sign. This test posits that a non-signatory is bound by a forum selection clause if it is so “closely related” to the signatory that it was “foreseeable”…

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