How to draft a forum selection clause

A recent decision out of the District of Oregon, Summit Foods, Inc. v. Viking Packaging Technologies, Inc., Case No. 3:18-cv-1470-SI, debated whether a forum selection clause was mandatory or permissive, and so provides some lessons if you’re trying to draft one of these. 

The defendant was arguing that the forum selection clause was mandatory, but the court found that was reading the clause “through rose-colored glasses.” The clause said that “[t]he courts of Sheboygan County Wisconsin will have jurisdiction.” The court, however, noted that the clause was silent as to whether any other jurisdiction might also have jurisdiction. There was no language indicating that Sheboygan County would have exclusive jurisdiction. A mandatory forum selection one is one that contains such language of exclusivity. The forum selection clause in this case was therefore held to be permissive.