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This week’s miscellany: New Mass. non-compete law; “Notwithstanding”; exclusive-forum requirements

Massachusetts non-compete restrictions take effect

See this analysis at the Trading Secrets blog by Dawn Mertineit, Erik Weibust and Katherine Perrelli.

In case you wondered what notwithstanding really meant ….

In an October 1 decision, the Seventh Circuit provided helpful citations sup­port­ing the common understanding of the term notwithstanding as meaning:

… without prevention or obstruction from or by; in spite of, despite, and it implies the presence of an obstacle … notwithstanding, in essence wipes out anything to the contrary[.]

Soarus L.L.C. v. Olson Mat’ls Int’l Corp., No. 18-1144, slip op. at 5 (7th Cir. Oct. 1, 2018) (cleaned up), citing, inter alia, N.L.R.B. v. SW General, Inc., 137 S. Ct. 929, 939 (2017) (in the context of interpreting a statute).

What it takes for a forum selection provision to be exclusive

A recap from the U.S. district court in Oregon:

 If the text of the forum selection clause is mandatory, courts must enforce the clause, absent exceptional circumstances, and venue will lie in the chosen forum only.

To be mandatory, a forum selection clause must contain wording suggest­ing that the parties intended to designate the specified forum as the ex­clu­sive forum. When the forum selection clause specifies only one permissible jurisdiction, however, the clause [i.e., exclusivity] will generally not be en­forced without some further language indicating the parties’ intent to make jur­isdiction exclusive.

In other words, a forum selection clause is permissive when it merely shows that the parties have consented to jurisdiction in a particular locale, but does not preclude litigation elsewhere.

Summit Foods, Inc. v. Viking Packaging Technologies, Inc.,  No. 3:18-cv-1470-SI, slip op. at 4 (D. Ore. Sept. 28, 2018) (denying defendant’s motion to dis­miss or transfer venue) (cleaned up).

The forum-selection provision in question was the following:

The courts of Sheboygan County Wisconsin will have jurisdiction to en­ter­tain and determine all disputes and claims both at law and in equity arising out of or in any way connected with the validity, existence, enforceability, con­­struc­tion, breach or alleged, threatened or anticipated breach of this Con­tract, to which the parties admit to having personal jurisdiction over them.

Id. at 6. The court held that this language didn’t go far enough to require that litigation be held in Sheboygan County.

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