Forum Selection In Antitrust and Business Tort Litigation

• Pages: 297-314

CHAPTER XI

FORUM SELECTION IN ANTITRUST

AND BUSINESS TORT LITIGATION

The factors that may affect a party’s choice of forum may

be broadly divided into three categories: (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 particular claims and parties; and (3) those

that relate to differences in the way courts conduct their

proceedings and adjudicate the claims before them. Chapters

1 and 2 address the substantive interplay of antitrust and

business tort law, whereas Chapters 9 and 10 examine the

threshold of procedural issues of jurisdiction, process, and

venue. This chapter explores the interplay of these and other

factors. – Eds.

A. Introduction

There are a variety of factors that may impact 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 plaintiffs with much 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

298 Business Tort Law

judges or juries might be more hospitable to a plaintiff’s case than others;

rather, the application of choice-of-law rules may imply 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 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, the 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

1. See,e.g., 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, Inc. v. K Mart Corp., 892 F.2d 1076, 1092 (1st Cir.

1989); see generally RESTATEMENT (SECOND)OF CON FLICTS OF LAWS

§§ 145, 188 (1969) [hereinafter RESTATEMENT]. Where the parties do not

raise a question as to choice of law in a diversity case, the law of the forum

state presumptively governs. See Kritikos v. Palmer Johnson, Inc., 821

F.2d 418, 421 (7th Cir. 1987).

2. See,e.g., Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778 n.10 (1984);

Equitable Life Assurance Soc’y of the United States v. McKay, 861 F.2d

221, 222 (9th Cir. 1988); see generally RESTATEMENT,supra note 1,

§ 122.

3. RESTATEMENT,supra note 1, § 187(2); see,e.g., 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 Tennessee law did not violate public policy of

forum state).