forum selection clause in Delaware

2026L.L.C., 67 A.3d 373, 381 (Del. 2013). 61 Id. 11 consents to jurisdiction through a forum selection clause, as the party has affirmatively waived any objection to the forum.62 O’Neil insists that the forum selection clause is inapplicable because the underlying dispute concerns the valuation process in the Separation Agreement, not the Stock Repurchase Agreement.63 This argument conflates the merits of the breach of contract claim with the court’s authority to determine the scope of the agreement.

2026L.L.C., 67 A.3d 373, 381 (Del. 2013). 61 Id. 11 consents to jurisdiction through a forum selection clause, as the party has affirmatively waived any objection to the forum.62 O’Neil insists that the forum selection clause is inapplicable because the underlying dispute concerns the valuation process in the Separation Agreement, not the Stock Repurchase Agreement.63 This argument conflates the merits of the breach of contract claim with the court’s authority to determine the scope of the agreement.

2026If WWEC is correct, then the Court cannot defer to the first-filed Enforcement Action because “[w]here contracting parties have expressly agreed upon a legally enforceable forum selection clause, a court should honor the parties’ contract and enforce the clause, even if, absent the forum selection clause, the McWane principle might otherwise require a different result.” Ingres Corp., 8 A.3d at 1145 .

2026“Courts should assess the reasonableness of a forum selection clause on a case-by-case basis.” Ingres, 8 A.3d at 1146 .

2025Oct. 31, 2013) (“Where parties agree through a forum selection clause to litigate in a particular jurisdiction, Delaware law generally honors such agreements.”). 63 M/S Bremen, 407 U.S. at 15 ; Nat’l Indus.

2025Ins., 547 F. Supp. 959, 980 (D.N.J. 1981) (same). 95 See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991); M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). 96 See Tan, supra note 4, at 648–49 (citing considerations a court could take into account when deciding to enforce a forum selection clause). 44 litigation in a single forum, while the other—often better resourced—party insists on enforcing a forum selection clause that Balkanizes the dispute.

2023Turning from direct benefit to foreseeability, this Court has applied the foreseeability inquiry as a standalone basis for satisfying the closely-related test in two scenarios: (1) where a nonsignatory defendant seeks to enforce a forum selection clause against a signatory plaintiff;66 or (2) where a controlled nonsignatory, who bears a “clear and significant connection to the subject matter of 62 Id. 63 Id. 64 Id. 65 Sustainability P’rs, 2020 WL 3119034 , at *6 (emphasis omitted and emphasis added). 66 Neurvana I, 2019 WL 4464268 , at *5–6 (citing Ashall Homes Ltd. v. ROK Entm’t Gp., Inc., 99

2022The License Agreement “When a contract contains a forum selection clause, this court will interpret the forum selection clause in accordance with the law chosen to govern the contract.” 15 Germaninvestments AG v. Allomet Corp., 225 A.3d 316 , 331 (Del. 2020) (quoting Ashall Homes, 992 A.2d at 1245 ) (internal quotations omitted).

2026It states: Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual 54 Carlyle, 67 A.3d at 381 ; accord Burger King, 471 U.S. at 472 n.14 (“Where such forum selection provisions have been obtained through ‘freely negotiated’ agreements and are not ‘unreasonable and unjust,’ their enforcement does not offend due process.” (citation omitted)); Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209, 1228 (Del. 2018) (“Where a party commits to the jurisdiction of a particular court or forum by contract, such as thr

2026Focus Parent and Focus Sub designed the package of legal rights reflected in the Unit Agreement, presented them in a standard-form agreement, and then conditioned Holsopple’s receipt of a substantial portion of his compensation on accepting those terms.”); see also Genuine Parts, 137 A.3d at 148 (“[A] party to a non-adhesion contract can subject itself to personal jurisdiction via a forum selection clause.”). 52 Cruise demonstrates that a contract of adhesion can contain an enforceable forum selection clause so long as (1) the recipient has notice of the forum selection provision, (2) the chos

2025L.L.C., 67 A.3d 373, 381 (Del. 2013) (“[w]here the parties to the forum selection clause have consented freely and knowingly to the court’s exercise of jurisdiction, the clause is sufficient to confer personal jurisdiction on a court.”). 128 See generally APA. 129 Ruggiero v. FuturaGene, plc., 948 A.2d 1124, 1132 (Del.

2023L.L.C., 67 A.3d 373, 381 (Del. 2013)) (“Where the parties to the forum selection clause have consented freely and knowingly to the court’s exercise of jurisdiction, the clause is sufficient to confer personal jurisdiction on a court.”) 35 Ruggiero v. FuturaGene, plc., 948 A.2d 1124, 1132 (Del.

2026It states: Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual 54 Carlyle, 67 A.3d at 381 ; accord Burger King, 471 U.S. at 472 n.14 (“Where such forum selection provisions have been obtained through ‘freely negotiated’ agreements and are not ‘unreasonable and unjust,’ their enforcement does not offend due process.” (citation omitted)); Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209, 1228 (Del. 2018) (“Where a party commits to the jurisdiction of a particular court or forum by contract, such as thr

2025See also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-82 (1985). 70 Compl. ¶ 15. 71 Id. 72 See generally Agreement. 73 MTD Opp’n at 6-15. 74 Id. at 16-22. 75 MTD Opp’n at 7-10. 11 “Delaware Courts use a three-part test to determine whether a non-signatory may be bound by a forum selection clause” as a third-party beneficiary.76 Specifically, courts consider: First, is the forum selection clause valid?

2026It states: Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual 54 Carlyle, 67 A.3d at 381 ; accord Burger King, 471 U.S. at 472 n.14 (“Where such forum selection provisions have been obtained through ‘freely negotiated’ agreements and are not ‘unreasonable and unjust,’ their enforcement does not offend due process.” (citation omitted)); Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209, 1228 (Del. 2018) (“Where a party commits to the jurisdiction of a particular court or forum by contract, such as thr

2022See also Burger King Corp. v. Rudzewicz, 471 U.S. 462 , 472 n.14 (1985) (“Where such forum selection provisions have been obtained through ‘freely negotiated’ agreements and are not ‘unreasonable and unjust,’ their enforcement does not offend due process.”); Eagle Force Holdings, LLC v. Campbell, 187 A.3d 1209, 1228 (Del. 2018) (“Where a party commits to the jurisdiction of a particular court or forum by contract, such as through a forum selection clause, a ‘minimum contacts’ analysis is not required as it should clearly anticipate being required to litigate in that forum.”). 23 Id. (quoting H

2025SA, 56 A.3d 1023, 1027 (Del. 2012) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). 11 court’s exercise of jurisdiction over the defendant.”43 “If, as here, no evidentiary hearing has been held, plaintiffs need only make a prima facie showing of personal jurisdiction and ‘the record is construed in the light most favorable to the plaintiff.’”44 “When a party is bound by a forum selection clause, the party is considered to have expressly consented to personal jurisdiction.”45 “An express consent to jurisdiction, in and of itself, satisfies the requirements of Due Process,” elim

2021The majority rule holds that when parties agree to litigate in a particular forum, they consent implicitly to the existence of personal jurisdiction in that forum.”25 “One such arrangement is a forum-selection clause in a contract.”26 “Where the parties to the forum selection clause have consented freely and knowingly to the court’s exercise of jurisdiction, the clause is sufficient to confer personal jurisdiction on a court.”27 “When a party is bound by a 21 See id. (citing 10 Del.

2025SA, 56 A.3d 1023, 1027 (Del. 2012) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). 23 Compl. ¶ 3. 24 10 Del.

2025SA, 56 A.3d 1023, 1027 (Del. 2012) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). 11 court’s exercise of jurisdiction over the defendant.”43 “If, as here, no evidentiary hearing has been held, plaintiffs need only make a prima facie showing of personal jurisdiction and ‘the record is construed in the light most favorable to the plaintiff.’”44 “When a party is bound by a forum selection clause, the party is considered to have expressly consented to personal jurisdiction.”45 “An express consent to jurisdiction, in and of itself, satisfies the requirements of Due Process,” elim

2022Oct. 29, 2004) (concluding the forum selection clause was reasonable despite Plaintiff having to hire local counsel, travel to and from California, and being unable to care for her three children). 'S W/S Bremen, 407 U.S. at 16 . '6 Elia Corp. v. Paul N. Howard Co., 391 A.2d 214, 216 . incurred due to having to travel to Virginia is not enough to find the forum selection clause unreasonable.!’ Plaintiffs’ age and health may complicate their ability to travel to Virginia, however, such things do not make litigating in Virginia so “manifestly and gravely inconvenient” that Plaintiffs would effec

2010Jan. 16, 2007) ("Delaware courts have held that, if there is a forum selection clause in a contract, even when venue where the suit is filed is proper, the court should decline to proceed when the parties freely agreed that litigation should be conducted in another forum.”); Outokumpu Eng'g Enters. v. Kvaerner Enviropower, Inc., 685 A.2d 724, 733 (Del.Super.1996) (explaining that forum selection clauses are entitled to "substantial weight”); Elia Corp. v. Paul N. Howard Co., 391 A.2d 214, 216 (Del.Super.1978) (“[E]ven though venue is proper where suit is filed and a court of competent jurisdic

2020But this Court has recognized that where a party has freely and voluntarily agreed to a contractual scheme in which his will may be superseded and subsumed by the will of his counterparties, he has consented to a forum selection clause imposed through that scheme.58 In the absence of more direct authority, I look to cases interpreting forum selection bylaws, as Delaware law views such bylaws as “contractual”59 and enforces them “in the same way [Delaware] enforces any other forum selection clause.”60 57 See, e.g., Sylebra, 2020 WL 5989473 , at *9–10. 58 See id. at *10–11; Boilermakers, 73 A.3d

2020But this Court has recognized that where a party has freely and voluntarily agreed to a contractual scheme in which his will may be superseded and subsumed by the will of his counterparties, he has consented to a forum selection clause imposed through that scheme.58 In the absence of more direct authority, I look to cases interpreting forum selection bylaws, as Delaware law views such bylaws as “contractual”59 and enforces them “in the same way [Delaware] enforces any other forum selection clause.”60 57 See, e.g., Sylebra, 2020 WL 5989473 , at *9–10. 58 See id. at *10–11; Boilermakers, 73 A.3d

2021L.L.C., 67 A.3d 373, 381 (Del. 2013); Ingres Corp. v. CA, Inc., 8 A.3d 1143 , 1146–47 (Del. 2010). 102 See Ingres, 8 A.3d at 1146 (alteration in original); see also id. (“Courts should assess the reasonableness of a forum selection clause on a case-by-case basis.”). 103 Eagle Force, 187 A.3d at 1229 (quoting Osborn v. Kemp, 991 A.2d 1153, 1158 (Del. 2010)).

2015Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010). 23 Id. at 1160 . 9 Defendants attempt to avoid the impact of Section 7.8 by arguing that Ingres is inapposite because that case involved an exclusive forum selection clause, while Section 7.8 contains only a non-exclusive provision.24 Nothing in the Supreme Court‟s opinion in Ingres, however, limited its reach to forum selection clauses that are exclusive in nature.

2020Trucking Ass’ns, 531 U.S. 457, 468 (2001). 44 Appellee acknowledges that, “[t]here is no tension with the generic federal policy in favor of traditional, contractual, forum-selection clauses,” and that, “[i]f sophisticated investors want to bind themselves to a federal forum by contract, they can.”140 He further acknowledges that, “Delaware generally enforces forum-selection provisions contained in a contract.”141 FFPs, as charter provisions, must be subjected to, and approved by a vote of the stockholders.142 The logic underlying the validity of traditional contractual forum- selection clause

2020Trucking Ass’ns, 531 U.S. 457, 468 (2001). 44 Appellee acknowledges that, “[t]here is no tension with the generic federal policy in favor of traditional, contractual, forum-selection clauses,” and that, “[i]f sophisticated investors want to bind themselves to a federal forum by contract, they can.”140 He further acknowledges that, “Delaware generally enforces forum-selection provisions contained in a contract.”141 FFPs, as charter provisions, must be subjected to, and approved by a vote of the stockholders.142 The logic underlying the validity of traditional contractual forum- selection clause

2020Feb. 8, 2016) (finding that under New York law, though forum-selection clauses are presumed valid, the court may refuse to enforce it if the challenging party can show cause); Drulias v. 1st Century Bancshares, Inc., 30 Cal. App. 5th 696, 703 (Cal. Ct. App. 2018) (“Ordinarily, the party seeking to avoid enforcement of a forum selection clause bears the ‘burden of establishing that [its] enforcement . . . would be unreasonable.’” (citation omitted)). 48 valid.”151 Given that we are addressing a facial challenge, we are not considering hypothetical, contextual situations regarding the adoption o

2020Feb. 8, 2016) (finding that under New York law, though forum-selection clauses are presumed valid, the court may refuse to enforce it if the challenging party can show cause); Drulias v. 1st Century Bancshares, Inc., 30 Cal. App. 5th 696, 703 (Cal. Ct. App. 2018) (“Ordinarily, the party seeking to avoid enforcement of a forum selection clause bears the ‘burden of establishing that [its] enforcement . . . would be unreasonable.’” (citation omitted)). 48 valid.”151 Given that we are addressing a facial challenge, we are not considering hypothetical, contextual situations regarding the adoption o

2026In doing so, it relied on El Paso Natural Gas Company v. TransAmerican National Gas Company, where the Delaware Supreme Court stated a party could raise a forum selection clause as a defense in a wrongful forum and, “if successful, recover the costs of that litigation.” El Paso, 669 A.2d at 40.

2024Ch.), Dkts. 157–58. 98 In El Paso, the Court upheld this court’s dismissal of a cause of action seeking to enforce a forum selection clause requiring litigation of claims sounding only in law in this court for lack of subject matter jurisdiction. 669 A.2d 36 .

2026Rev. 423 , 425 (1992). 115 Carnival Cruise, 499 U.S. at 595 . 43 question of insufficient notice.116 The Court nevertheless stressed that a forum selection clause in a form agreement remains “subject to judicial scrutiny for fundamental fairness.”117 That rule recognizes that including a forum selection clause in a take-it-or-leave-it agreement represents a form of forum shopping, and that form of forum shopping can be just as pernicious as other forms.118 116 Id. at 590 (“[W]e do not address the question whether respondents had sufficient notice of the forum clause before entering the contrac

2025Ins., 547 F. Supp. 959, 980 (D.N.J. 1981) (same). 95 See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991); M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). 96 See Tan, supra note 4, at 648–49 (citing considerations a court could take into account when deciding to enforce a forum selection clause). 44 litigation in a single forum, while the other—often better resourced—party insists on enforcing a forum selection clause that Balkanizes the dispute.

2026A court has “jurisdiction to determine its own jurisdiction.”64 When a contract contains a broad forum selection clause covering disputes “in relation to” the agreement, the court has the power to determine the threshold question of whether a dispute falls within that scope.65 Armaments’ claims also implicate the “Release and Waiver” in Section 7(a) of the Stock Repurchase Agreement.66 Armaments alleges that this provision extinguished the Separation Agreement, mandating that the parties litigate under the Stock Repurchase Agreement in Delaware.67 Whether Armaments is correct on the 62 See Ste

2021Del. 2008)). 99 Solae, 557 F. Supp. 2d at 456 (citing Sternberg v. O’Neil, 550 A.2d 1105, 1116 (Del. 1988)); see also Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209, 1228 (Del. 2018) (“Where a party commits to the jurisdiction of a particular court or forum by contract, such as through a forum selection clause, a ‘minimum contacts’ analysis is not required as it should clearly anticipate being required to litigate in that forum.”) . 100 E.g., Genuine Parts Co. v. Cepec, 137 A.3d 123, 148 (Del. 2016) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972)). 101 See, e.g., Nat’l I

2026Id. at 656-57 (“The Employment Agreement gives rise to and governs Feeley’s service in his capacities as President and CEO [] [] and a claim for breach of the fiduciary duties owed by Feeley in those capacities is therefore subject to arbitration.”). 90 OTK Assocs., LLC v. Friedman, 85 A.3d 696, 721 (Del.

2023In OTK Associates, LLC v. Friedman, this court rejected the argument that a forum selection clause in an agreement that governed a recapitalization between a company and a major investor applied to lawsuits brought by stockholders alleging that the directors breached their duties by entering into the agreement and that the counterparty had aided and abetted the fiduciary breach. 85 A.3d 696, 721 (Del.

2025Those agreements, however, provide personal jurisdiction only to the extent of claims “arising out of this Agreement or any transaction contemplated hereby.”47 This consent to jurisdiction does not extend to the Tort Claims.48 43 Ryan v. Gifford, 935 A.2d 258, 265 (Del.

2020“A forum selection clause is one avenue to expressly consent to personal jurisdiction.”50 If a party gives consent expressly through a forum selection clause, then the second prong of the analysis—due process—is satisfied.51 47 Ryan v. Gifford, 935 A.2d 258, 265 (Del.

2024Oct. 28, 2022) (finding “no authority applying El Paso and [O’Steen]” to grant fees with respect to enjoining arbitration but finding “myriad examples of this Court enjoining arbitration without awarding fees or costs”); see also Versatile Housewares & Gardening Sys., Inc. v. Thill Logistics, Inc., 819 F. Supp. 2d 230, 246 (S.D.N.Y. 2011) (denying a claim seeking damages for the fees incurred in defending an action filed in breach of a forum selection clause and observing that “[i]mposing a cost on someone seeking to enforce his rights—whether those rights arise from contract, statute, or comm

2024Oct. 28, 2022) (finding “no authority applying El Paso and [O’Steen]” to grant fees with respect to enjoining arbitration but finding “myriad examples of this Court enjoining arbitration without awarding fees or costs”); see also Versatile Housewares & Gardening Sys., Inc. v. Thill Logistics, Inc., 819 F. Supp. 2d 230, 246 (S.D.N.Y. 2011) (denying a claim seeking damages for the fees incurred in defending an action filed in breach of a forum selection clause and observing that “[i]mposing a cost on someone seeking to enforce his rights—whether those rights arise from contract, statute, or comm

2024Ch. 2022). “‘[F]or a complaint to properly state a claim cognizable in equity solely because of a request for an injunction, the facts alleged must, if assumed to be true, create a reasonable apprehension of a future wrong.’” Id. at 1233 (quoting McMahon v. New Castle Assocs., 532 A.2d 601, 606 (Del.

2024Ch. 2022). “‘[F]or a complaint to properly state a claim cognizable in equity solely because of a request for an injunction, the facts alleged must, if assumed to be true, create a reasonable apprehension of a future wrong.’” Id. at 1233 (quoting McMahon v. New Castle Assocs., 532 A.2d 601, 606 (Del.

2022The court held that those provisions should be interpreted broadly to “encompass[] all causes of action arising from or relating to [their respective] agreement[s].”49 Id. at 423 (citations and emphasis omitted); see also Olinick v. BMG Entm’t, 42 Cal. Rptr. 3d 268, 279 (Cal. Ct. App. 2006) (holding state statutory and common law age discrimination claims fell within an employment agreement’s forum selection clause using “arising under” language).

2022The court held that those provisions should be interpreted broadly to “encompass[] all causes of action arising from or relating to [their respective] agreement[s].”49 Id. at 423 (citations and emphasis omitted); see also Olinick v. BMG Entm’t, 42 Cal. Rptr. 3d 268, 279 (Cal. Ct. App. 2006) (holding state statutory and common law age discrimination claims fell within an employment agreement’s forum selection clause using “arising under” language).

2019A. The Motion to Dismiss Counts I and II–V Under McWane It is undisputed the Separation Agreement contains a forum selection clause selecting the Delaware Court of Chancery as the exclusive venue for all disputes among the parties “with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder.”103 The parties 101 McWane, 263 A.2d at 283 . 102 Ingres Corp. v. CA, Inc., 8 A.3d 1143, 1145 (Del. 2010). 103 Compl. ¶ 132; Compl.

2016Ch. 1992)) (“Courts have questioned the foreign court’s ability to render prompt and complete justice where a trial was to be delayed pending a judicial election, where the suit involved contract claims governed by a forum selection clause mandating adjudication in Delaware, and where the Delaware action involved a summary proceeding under the Delaware General Corporation Law.”). 56 McWane, 263 A.2d at 283 . 15 filed—comity would be poorly served by allowing the Delaware Action to continue.

2025Rental, Ltd. v. Szukhent, 375 U.S. 311 , 315–16 (1964)); accord Solae, LLC v. Hershey Can., Inc., 557 F. Supp. 2d 452, 456 (D.

2021Del. 2008)). 99 Solae, 557 F. Supp. 2d at 456 (citing Sternberg v. O’Neil, 550 A.2d 1105, 1116 (Del. 1988)); see also Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209, 1228 (Del. 2018) (“Where a party commits to the jurisdiction of a particular court or forum by contract, such as through a forum selection clause, a ‘minimum contacts’ analysis is not required as it should clearly anticipate being required to litigate in that forum.”) . 100 E.g., Genuine Parts Co. v. Cepec, 137 A.3d 123, 148 (Del. 2016) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972)). 101 See, e.g., Nat’l I

2025Rental, Ltd. v. Szukhent, 375 U.S. 311 , 315–16 (1964)); accord Solae, LLC v. Hershey Can., Inc., 557 F. Supp. 2d 452, 456 (D.

2023Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16 (1964)). 45 2003 WL 21960406 (D.

2025Id. at 10-13. 54 Id. at 13-18; see Hazout v. Tsang Mun Ting, 134 A.3d 274, 278 (Del. 2016) (“[A]ny exercise of personal jurisdiction under [a] statute [must be] consistent with due process, by applying the established minimum contacts test[.]”). 55 See SAC ¶¶ 13-14. 56 See SAC ¶ 1. 57 MTD at 16; see generally SAC. -9- Agreement did not involve the change in control of a Delaware corporation.”58 According to the Plaintiffs, the Individuals consented to Delaware jurisdiction in two ways.59 First, Plaintiffs contend the Agreement’s forum-selection clause binds the Individuals, notwithstanding the

2021C. § 3114(b). 65 See Hazout, 134 A.3d at 278 . 66 Ruggiero v. FuturaGene, plc., 948 A.2d 1124, 1132 (Del.

2024AB v. Mirror Image Internet, Inc., 817 A.2d 149, 155, 157 (Del. 2002) (explaining that the scope of an arbitration agreement required this Court to answer whether the claims at issue depended on the existence of the agreement in which mandatory arbitration arose; “the analysis must turn on the issue of whether the [instant] claims would be assertable had there been no [arbitration] agreement”). 45 Further, the Plaintiff has not argued that the forum selection clause in the Incentive Unit Agreement is unenforceable such that the presumption of validity would be overcome.

2023This court noted that if the forum selection clause in a transaction agreement governed any stockholder lawsuits challenging the transaction, then “the solution to the problem of multi-forum litigation has been hiding in plain sight for decades, under the noses of the courts and corporate bar.” Id.