Responding To Professor Bainbridge’s Response

Last week, Professor Stephen Bainbridge posted this response to my post on post on exclusive forum selection bylaws in light of Chancellor Strine’s opinion in Boilermakers Local 154 Retirement Fund v. Chevron Corporation, 2013 Del. Ch. LEXIS 154 (June 25, 2013).  Professor Bainbridge, citing numerous cases, makes the point:

Since many–if not most–of the suits that would be affected by forum selection bylaws will involve such claims, and since California would not grant a jury trial as a matter of right in such cases, I see no reason why a California court would not enforce a Delaware corporation’s forum selection bylaw in such cases.

It is true that many claims subject to an exclusive forum will be equitable in nature and hence with no right to a jury trial, not all claims will be (e.g., breach of contract claims).  Thus, an individual challenge may succeed where others may not.