Clause Confusion (Part II)
In a prior post, I showed that lawyers sometimes fail to distinguish choice-of-law clauses from forum selection clauses. In this post, I provide several examples of cases where judges made precisely the same mistake. In some of these cases, these errors were harmless. In others, they were not. Harmless Error There are a multitude of…
Continue ReadingClause Confusion (Part I)
There are many things in life that resemble something else. Some people struggle to distinguish alligators from crocodiles. Others have a hard time telling the difference between butterflies and moths. I myself cannot taste the difference between Coke and Pepsi… a fact that horrifies my family. All of these mistakes are both understandable and forgivable….
Continue ReadingTrademarks and Foreign Forum Selection Clauses
The task of deciding whether a forum selection clause should be given effect can be burdensome. A federal court must evaluate whether the clause is valid. It must interpret the clause to determine whether it is exclusive and covers the claims asserted. And it must assess whether the clause is enforceable under the test laid…
Continue ReadingIf You Give a Mouse a Forum Selection Clause…
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…
Continue ReadingIs the Closely Related Doctrine a Creature of State or Federal Law?
The closely related doctrine, discussed here and here and here, posits that a non-signatory to a contract may be bound by a forum selection clause in that contract if the non-signatory is so “closely related” to a signatory that it was “foreseeable” that it would be bound. Robin Effron and I have argued that using…
Continue ReadingA Drafting Catastrophe
While on vacation at the Breathless Montego Bay Resort and Spa in Jamaica, Jacqueline Williams slipped and fell. Upon returning home to Wisconsin, Williams filed a lawsuit in federal district court in Illinois alleging negligence against five companies that allegedly owned or operated the resort. The corporate defendants moved to dismiss based on forum non…
Continue ReadingSDNY Enforces Swiss Forum Selection Clause
The U.S. Court of Appeals for the Second Circuit sees a lot of cases involving forum selection clauses. Perhaps as a result, that court has taken the time to articulate a comprehensive, four-step framework for determining how and when these provisions should be given effect. In this post, I first discuss a recent case in…
Continue ReadingForum Selection Clauses and Subject-Matter Jurisdiction
The forum selection clause is the Swiss Army Knife of transnational litigation. It may be used to obtain personal jurisdiction over a defendant who otherwise lacks any connection to the chosen jurisdiction. It may supply a reason for dismissing a case filed in a jurisdiction other than the one named in the clause. It may be deployed to…
Continue ReadingDim Sum Bonds, Panda Bonds, and Dispute Resolution
China’s push to internationalize the renminbi (RMB, or yuan) since 2008 has led to the growing share of RMB-denominated bonds in the international bond market. So-called “panda bonds” and “dim sum bonds” are variants of RMB-denominated bonds. Panda bonds are onshore RMB debt issued in China by entities domiciled outside mainland China. Overseas issuers use…
Continue ReadingArizona Supreme Court Rejects the “Closely Related” Doctrine
When may a litigant take advantage of a forum selection clause in a contract that he never signed? This is a question that has attracted considerable attention from the courts (and on this blog). Historically, a non-party was covered by a clause only when permitted under such doctrines as assumption, agency, piercing the corporate veil,…
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