Filed October 7, 2013
All of the Toshiba Defendants, including the Toshiba Defendants that are not signatories to the BTA, have the right to enforce the forum selection clause against the Sharp Plaintiffs. Ninth Circuit and Northern District of California case law is clear that “non-signatories can enforce arbitration clauses where there is a ‘close relationship between the entities involved, as well as the relationship of the alleged wrongs to the non-signatory’s obligations and duties in the contract and . . . the claims [are] intertwined with the underlying contractual obligations.’” Costco, slip op. at 8 (quoting Mundi v. Union Sec. Life Ins. Co., 555 F.3d 1042, 1046 (9th Cir. 2009)). See Scherk, 417 U.S. at 519 (holding an agreement to arbitrate before an international tribunal should be treated and enforced the same way as a forum selection clause selecting an international venue); Richards, 135 F.3d at 1295 n.4. Just as this Court held previously in this litigation that all of the Toshiba Defendants named in the Costco Complaint could enforce a motion to compel arbitration against Costco, so too can the Toshiba Defendants enforce a forum selection clause against the Sharp Plaintiffs.
Filed May 25, 2011
To rebut this presumption, the opposing party must demonstrate that the forum selection clause is unreasonable, the result of fraud or coercion, that the enforcement of the provision would violate a stout public policy, or that “enforcement of the clause would deprive the plaintiff of his day in court.” Bremen, 407 U.S. at 12-13; Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n.14, 41 L. Ed. 2d 270, 94 S. Ct. 2449 (1974); Laserdynamics, Inc. v. Acer America Corp., 209 F.R.D. 388 (S.D. Tex. 2002). Case 4:11-cv-00244-Y Document 35 Filed 05/25/11 Page 8 of 16 PageID 198 5 Moreover, the presumption of validity conferred upon forum selection clauses can only be overcome by the plaintiff’s “strong showing” that enforcement would be unjust, unfair, or unreasonable under the circumstances.
Filed August 16, 2010
A forum selection clause is unenforceable if its inclusion was the product of fraud. Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n.14, 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974). Plaintiff never agreed to file Case 3:10-cv-00195-JAH -AJB Document 42 Filed 08/16/10 Page 13 of 29 PLTF PRIME EQUITY HOLDINGS, INC.’S OPP TO DEF YELLOWPAGES.COM, LLC’s MOT TO DISMISS OR TRANSFER - 7 - Consolidated Case No. 10-CV-0195-JAH(AJB) DOCS\526427v2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 suit in New York because YP.com concealed from them the very existence of the clause by withholding the Terms and Conditions – the only document containing the forum selection clause.
Filed June 2, 2008
The Supreme Court has made it clear that a forum selection clause is not rendered unenforceable “any time a dispute arising out of a transaction is based upon an allegation of fraud.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n. 14, 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974). Rather, a forum selection clause may be unenforceable only if the inclusion of the forum selection clause, specifically, was the product of fraud.
Filed June 28, 2017
TO DISMISS CLASS ACTION COMPLAINT (3:17-cv-00540-DMS-RBB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 selection clause itself—not the agreement as a whole—is the product of fraud or overreaching. Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n.14 (1974); see also Batchelder v. Kawamoto, 147 F.3d 915, 919 (9th Cir. 1998) (to “escape a forum selection clause on the grounds of fraud,” party must show that the “inclusion of that clause in the contract” was accomplished by fraud or coercion (citation and internal quotation marks omitted); Gamayo v. Match.com LLC, 2011 WL 3739542, at *4 (N.D. Cal. Aug. 24, 2011) (to prevail on the first exception, a plaintiff must show the forum selection clause was “included in the Agreement through fraudulent means”). Plaintiffs cannot demonstrate that the forum selection clause was included in the Gold Card Program Terms and Conditions by fraudulent means, and therefore the first exception to enforcement is not applicable.
Filed May 22, 2017
Instead, [he] must show that the inclusion of that particular clause was the product of fraud or coercion.” Price, 2004 WL 727028, at *4 (citing Sherk v. Alberto- Culver Co., 417 U.S. 506, 519 n. 14, 94 S.Ct. 2449, 2457, 41 L.Ed.2d 270 (1974); Allen, 94 F.3d at 928 (agreeing without discussion that the district court properly found no evidence of fraud where there was no fraud in the inclusion of the forum clauses)); see also Bassett Seamless Guttering, Inc. v. GutterGuard, LLC, No. 1:05CV00184, 2006 WL 156874, *4 (M.D.N.C. Jan. 20, 2006) (“To show that the forum-selection clause is unreasonable based on fraud, Plaintiff would need to show that inclusion of the forum-selection clause itself was the product of fraud or coercion” (emphasis in original)). Plaintiff objects that he was “forced to sign a document that he was able to provide very little negotiation on” and claims that the parties' unequal bargaining power resulted in an “overreaching and unconscionable contract.”
Filed April 19, 2017
“Plaintiff must prove that the forum selection clause itself—not the Agreement as a whole—is the product of fraud or overreaching.” Mazzola v. Roomster Corp., No. 10-cv-5954-AHM, 2010 WL 4916610, at *2 (C.D. Cal. Nov. 30, 2010) (citing Sherk v. Alberto-Culver Co., 417 U.S. 506, 519 n.14 (1974)). This he cannot do.
Filed March 16, 2017
A party seeking to avoid enforcement of a forum-selection clause because it was the product of fraud or overreaching must show that the inclusion of the clause itself into the agreement was improper; it is insufficient to allege that the agreement as a whole was improperly procured. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n.14 (1974). Plaintiffs cannot show that WestPac somehow improperly included the forum- selection clause in the Agreement.
Filed February 15, 2017
A party seeking to avoid enforcement of a forum-selection clause because it was the product of fraud or overreaching must show that the inclusion of the clause itself into the agreement was improper; it is insufficient to allege that the agreement as a whole was improperly procured. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n.14 (1974). Plaintiffs have failed to carry their burden of showing that WestPac somehow improperly included the forum-selection clause in the Agreement.
Filed September 19, 2016
Co., 114 F. Supp. 2d 593, 596–97 (S.D. Tex. 2000) (same). The Case 1:16-cv-02313-MHC Document 24 Filed 09/19/16 Page 11 of 23 7 only case Plaintiff cites on this point, Scherk v. Alberto Culver Co., 417 U.S. 506 (1974) (cited at Opp. at 17), is inapplicable, because it did not involve a forum selection clause, or address whether such a provision would be inconsistent with an agreement to arbitrate.1 II.