Forum-selection clauses were once widely disfavored by many courts on the theory that such provisions operated to improperly divest the court of jurisdiction.  But now, it is well-recognized that parties to a contract may freely select a forum of their choosing to resolve a dispute arising from that contract.  In fact, forum-selection clauses are now prima facie valid unless the party seeking to avoid the enforcement of a forum-selection clause makes a “strong showing” that it should be set aside. But what does that mean?

A party challenging a forum-selection clause must show:

  • Enforcement of the clause would be unreasonable and unjust, or in contravention of public policy;
  • The clause is invalid because of fraud or overreaching; or
  • A trial in the contractual forum would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of its day in court.

This is a significantly high burden to meet.  Indeed, a recent decision by Justice Emerson in Somerset Fine Home Bldg., Inc. v Simplex Indus., Inc., 2018 NY Slip Op 51845 (U) (Sup Ct, Suffolk County Dec. 14, 2018) serves as a reminder that simply claiming “unequal bargaining power” in drafting the contract, or the “financial distress” of traveling to another state may be insufficient to set aside a valid forum-selection clause.

The plaintiff in Somerset was a home builder located in Suffolk County, New York, and the defendant was a manufacturer of modular homes located in Scranton, Pennsylvania.  In May 2017, the parties entered into a sales agreement (the “Agreement”) whereby the plaintiff agreed to purchase a modular home from the defendant. The Agreement contained a forum-selection clause providing that any dispute related to the Agreement would be determined by the laws of the Commonwealth of Pennsylvania and that the exclusive forum would be the Court of Common Pleas of Lackawanna County, Pennsylvania.  Ultimately, the plaintiff sued the defendant in Suffolk County, New York for, among other things, breach of the Agreement.  The defendant moved to dismiss arguing that the parties expressly agreed to litigate their dispute in Pennsylvania.

Justice Emerson rejected plaintiff’s argument that the Agreement and forum-selection clause were “unconscionable,” noting that, as an initial matter, the forum-selection clause was “not hidden or tucked away within a complex document of inordinate length.”  Rather, the clause appeared in the same size and print as the rest of the agreement, each page of which was initialed by plaintiff’s principal.

The Court also rejected plaintiff’s argument that “it was in a weaker bargaining position than defendant” and that it “had no choice” but to enter into the Agreement, explaining that a forum-selection clause will not be invalidated merely because the parties do not possess equal bargaining power.  Importantly, the Agreement at issue in Somerset, like many agreements, clearly stated that each party had “the opportunity to obtain the assistance of counsel in the negotiation, drafting and execution of the agreement.”

Finally, plaintiff’s argument that it was a “small company” that could not travel to Pennsylvania was equally unavailing, as Justice Emerson explained that “simply claiming financial distress does not warrant setting aside a valid forum-selection clause.”  The plaintiff in Somerset did not demonstrate that commencing an action in Pennsylvania would be so financially prohibitive that it would be deprived of its day in court, or that the Pennsylvania court would treat it unfairly.

And so, because the forum-selection clause in Somerset was the product of an arm’s-length business agreement between sophisticated commercial entities, and was neither outrageous nor oppressive so as to warrant a finding of unconscionability, the court dismissed the case.

Somerset reaffirms the principle that a forum-selection clause is prima facie valid and will not be set aside unless the challenging party makes a “strong showing” that the clause is unreasonable, unjust or invalid because of fraud.  An example of a forum-selection clause set aside on the grounds of fraud is found in People v Northern Leasing Sys., Inc., 60 Misc 3d 867 [Sup Ct, NY County Nov. 17, 2017].  There, the forum-selection clause was held to be invalid where the various lease agreements at issue, among other things, were materially and fraudulently altered after execution, contained forged signatures, and were otherwise “permeated with fraud”.

And, when would trial in another forum be “so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court”?  Well, some courts have vitiated forum-selection clauses when enforcement would essentially extinguish an otherwise reasonable claim, such as where the costs and inconvenience of forcing a party to litigate a case in a foreign state would effectively end the case before it began (seeYoshida v PC Tech USA, 22 AD3d 373 [1st Dept 2005] [forum-selection clause invalid where forum selected was Tokyo, Japan, with a totally foreign language and vastly different laws, so as to effectively “deprive plaintiff of his day in court”]; Northern Leasing Systems, Inc. v French, 48 Misc 3d 43 [1st Dept 2015] [forum in New York gravely inconvenient where parties’ agreement, businesses, and equipment were all located in California, and where defendant, an 86-year-old man, was a resident of California]).

One Final Note: Contracting parties may also expressly consent to the specific designation of the Commercial Division as the exclusive forum in New York states.  This may be beneficial for more sophisticated contracting parties who wish to streamline the process of having their contractual dispute heard in the Commercial Division rather than in New York state courts generally, as the Commercial Division judges are generally well-versed in commercial law.   In fact, the Commercial Division Rules even supply a “sample choice of forum clause” at Appendix C for practitioners to borrow.

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In 2015, Guo Wengui, a/k/a Kwok Ho Wan, a Chinese citizen, billionaire investor and political provocateur, fled China for the United States amid reported investigations by the Chinese government involving several of his businesses and business partners. Mr. Guo reportedly left behind approximately $17 billion in Chinese assets, which have been frozen. Despite living an opulent lifestyle on the 18th floor of the Sherry Netherland hotel on Fifth Avenue, he is now facing some financial pressure.

Among Mr. Guo’s international creditors is Pacific Alliance Asia Opportunity Fund (“Pacific Alliance”), a Hong Kong investment fund formed under Cayman Islands law. In 2008, Pacific Alliance loaned $30 million to Mr. Guo’s Hong Kong company in connection with the development of Pangu Plaza, site of a “7 Star Hotel” in Beijing near the Olympic arenas. In connection with the loan, Mr. Guo signed a personal guarantee. All of the documents and transactions were executed in Hong Kong or China.

According to Pacific Alliance, Mr. Guo now owes approximately $88 million in principal and accrued interest on the loan. However, Pacific Alliance’s efforts over the years to collect against Mr. Guo have been unsuccessful. Accordingly, in April 2017, Pacific Alliance brought suit against Mr. Guo in the Commercial Division of New York County, where Mr. Guo now resides and is seeking asylum from the United States government. (Mr. Guo’s membership at President Trump’s Mar-a-Lago resort does not appear to have expedited his application. It’s complicated.)

Mr. Guo moved before Judge Barry Ostrager to dismiss the complaint on grounds of forum non conveniens (inconvenient forum) pursuant to CPLR 327. New York courts (e.g., Islamic Rep. of Iran v. Pahlavi, 62 NY2d 474, 479 [1984]; Shin-Etsu Chem. Co. v. ICICI Bank Ltd., 9 AD3d 171, 178 [1st Dept 2004]) generally consider the following factors: (i) the availability of an alternative forum; (ii) the burden on the New York courts; (iii) whether the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction; (iv) the applicability of foreign law; (v) the potential hardship to the defendant; and (vi) whether a foreign forum has a substantial interest in adjudicating the action.

Mr. Guo argued that New York was an inconvenient forum because the dispute involved contracts between a Hong Kong investment fund and a Chinese citizen that were governed by Hong Kong law and related to Chinese real estate. Moreover, all of the relevant evidence was located in China and Hong Kong. Pacific Alliance responded that Mr. Guo was a fugitive from China and would never appear there for a legal proceeding; therefore, New York was the only forum available for Pacific Alliance to pursue its claims.

Judge Ostrager granted Mr. Guo’s motion to dismiss. The court reasoned that the State of New York had no interest in resolving a breach of contract dispute between Hong Kong and Chinese parties involving a Hong Kong agreement relating to Chinese real estate. Notwithstanding Mr. Guo’s residence in New York, the foreign site of the disputed transaction was most important to determining the proper forum. As for Pacific Alliance’s argument that Mr. Guo would not appear at a proceeding in Hong Kong or China, the court found “that circumstance would likely benefit plaintiff rather than be a detriment to plaintiff,” presumably because it would be easier for Pacific Alliance to obtain a default judgment.

The Appellate Division, First Department reversed, noting Mr. Guo’s “heavy burden” of establishing that New York is an inconvenient forum. Contrary to Judge Ostrager, the First Department found that Hong Kong was “not a suitable or adequate alternative, because defendant cannot return there due to his pending asylum claim and fugitive status.” This concern for Mr. Guo is somewhat strange because Mr. Guo had explicitly endorsed Pacific Alliance pursuing a judgment in China or Hong Kong against Mr. Guo without Mr. Guo’s appearance. Perhaps Mr. Guo agrees with commenters in China who believe that Chinese judgments are more difficult to enforce in the United States due to fears that such judgments are politically motivated.

Ultimately, the First Department found that there was insufficient evidence that it would be a hardship for Mr. Guo to litigate in New York, especially because he previously had brought suit against others in New York. However, the First Department’s decision did not appear to state a clear reason why certain factors were being weighed more heavily than others. Future litigants confronting inconvenient forum issues should take note of the unpredictability of the multi-factor balancing test.