Forum Selection in Antitrust and Business Tort Litigation

• Pages: 339-355

339

CHAPTER XI

FORUM SELECTION IN ANTITRUST

AND BUSINESS TORT LITIGATION

Factors relevant to a party’s choice of forum may be

broadly divided into three ca tegories: (1) those that influence

the plaintiff’s choice among available causes of action and

determine the substantive law that will govern those claims; (2)

those that involve a court’s power to assume jurisdiction over

particula r claims and pa rties; and (3) those that relate to

differences in the way courts conduct their pr oceedings and

adjudicate the cla ims before them. Chapters I and II a ddress

the substantive interplay of antitrust and business tort law,

whereas Chapters IX and X examine the threshold procedural

issues of jurisdiction, process, and venue. This chapter

explores the interplay of these and other factors. – Eds.

A. Introduction

A variety of factors may influence a plaintiff’s choice of forum,

including jurisdiction and the selection of the causes of action to be

brought. Factors that upon first inspection might seem to limit a

plaintiff’s choice of forum frequently combine to present a rich array of

options to both plaintiffs and defendants. Many commercial injuries may

be cast in a variety of state and federal common law and statutory claims,

and although the federal and state courts have enclaves of exclusive

jurisdiction, they share extensive concurrent jurisdiction, especially in

multistate cases. Similarly, liberal rules governing the permissible

joinder of parties and claims often present a plaintiff with significant

flexibility in framing pleadings that accord with the rules governing

jurisdiction, venue, and process, while enabling the plaintiff to assert its

most promising claims in the forum perceived as most advantageous.

Beyond the factors that inform a plaintiff’s ability to assert particular

claims against particular defendants in a particular court lies the question

whether that court offers the best forum for the plaintiff’s claims. This

inquiry runs deeper than speculation into whether particular judges or

juries might be more hospitable to a plaintiff’s case than others; rather,

the application of choice-of-law rules may present significant advantages

in terms of both procedural and substantive law, depending upon the

forum in which suit is brought. Indeed, because of the variety of causes

340 Business Torts and Unfair Competition Ha ndbook

of action based in state law, where an action is filed and which state’s

law applies often determines the available viable causes of action. The

introduction of such considerations further complicates the overall “mix”

of factors that bear upon the task of choosing the optimal forum in which

to assert – and defend – antitrust and business tort claims.

B. Choice-of-Law

Considerations relating to choice-of-law often are among the most

important – and neglected – factors in the forum selection calculus.

Under the Restatement (Second) of Conflicts of Laws, courts generally

apply the “most significant relationship” test when selecting the

substantive law that will govern disputes involving contractual and tort

claims.

1

Procedural issues, on the other hand, are governed by the law of

the forum.

2

Although contracting parties are generally free to choose the

law that will govern their relationship,

3

a court will not enforce such a

provision when the chosen state has no substantial relationship to the

parties or the transaction and there is no other reasonable basis for the

1

. See, e.g., Forestal Guarani S.A. v. Dar os Int’l, 613 F.3d 395, 401 (3d Cir.

2010); Cates v. Creamer, 431 F.3d 456, 464 (5th Cir. 2005); SIL-FLO,

Inc. v. SFHC, Inc., 917 F.2d 1507, 1512 (10th Cir. 1990 ); FMC Corp. v.

Capital Cities/ABC, Inc., 915 F.2d 300, 302 (7th Cir. 1990); Fashion

House v. K Mart Corp., 892 F.2d 1076, 1092 (1st Cir. 1989); see

genera lly RESTATEMENT (SECOND) OF CONFLICTS OF LAWS §§ 145, 188

(1971) [hereinafter RESTATEMENT]. Where the partie s do not raise a

question as to choice of law in a diversity case, the law of the foru m state

presumptively governs. See Camp v. TNT Logistics Corp., 553 F.3d 502,

505 (7th Cir. 2009).

2

. See, e.g. , Keeton v. Hustler Magazi ne, 465 U.S. 770, 778 n.10 (1984);

Equitable Life Assurance Soc’y v. McKay, 861 F.2d 221, 222 (9th Cir.

1988); see genera lly RESTATEMENT, supra note 1, § 122.

3

. RESTATEMENT, supra note 1, § 187(2); see, e.g., Estate of Charania v.

Shulman, 608 F.3d 67, 71 (1st Cir. 2010) (upholding choice of law

provision in contract); Ga y v. CreditInform, 511 F.3d 369, 390 (3d Cir.

2007) (upholding Virginia choice of law provision in contract where

Virginia had a substantial relationship to defendant, and there was no

reason to conclude that Pennsylvania had a materially greater interest

than Virginia); Wallace Hardware Co. v. Abrams, 223 F.3d 382 , 399-400

(6th Cir. 2000) (upholding Tennessee choice of law provision in contract

where parties were represented by counsel and application of T ennessee

law did not violate public policy of forum state).