North Carolina Business Litigation Report

Sony Ericsson Mobile Communications USA, Inc. v. Agere Systems, Inc., 2007 NCBC 28 (N.C. Super. Aug. 27, 2007)(Jolly)

The Court enforced a forum selection cause calling for the matters in dispute between the parties to be litigated in New York. The parties agreed that the determination of the validity of the clause would be governed by New York law. The plaintiff argued that the defendant should be estopped from claiming the benefit of the clause due to its failure to state, when it sought removal to the Business Court, that it would contend that the Court was an improper forum. The Court seemed to agree that this should have been disclosed, but held that this did not amount to grounds for estoppel or waiver.

The plaintiff then argued that the agreement containing the forum selection clause was unenforceable, as it was simply an agreement to agree. The Court rejected this argument as well, holding that none of the terms of the agreement remained to be negotiated, and that the parties had stated their intent to be bound by it. Plaintiff was bound by the agreement even though it had not signed it, because it was a subsidiary of a company signing the agreement, and the agreement stated that subsidiaries would be bound.

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Mack Sperling
Brooks Pierce, LLP
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