Amidst the COVID-19 pandemic, the Delaware Court of Chancery recently held that despite a forum selection clause designating New York as the appropriate venue to litigate disputes arising under an agreement, the parties could seek relief in the Court of Chancery because New York courts were unavailable. See Conduent Business Services v. Skyview Capital, C.A. No. 2020-0232-JTL, Transcript Ruling, at **33-34 (Del. Ch. Mar. 30, 2020).

In Conduent Business Services, the complaint asserted an anticipatory breach of an asset purchase agreement and sought a declaratory judgment interpreting the terms of the agreement. That agreement had a forum selection clause designating New York as the forum to litigate disputes arising from the contract. Before the court was plaintiff's motion for expedited proceedings.

The defendant argued that plaintiff's claim for relief was not colorable because venue was not appropriate. The defendant contended that the applicable law under the contract is New York law, and the court should not impose "an exception to what remains New York law for which the parties bargained." The defendant argued that "part of the corpus of New York law right now is how the New York courts are handling commercial cases. And that includes, as both sides have briefed, that right now they are not handling this." Finally, the defendant noted that the New York courts provided for emergency applications and the plaintiff did not make that application.

In response, the plaintiff urged that it was not "trying to stomp on the venue clause" and that it was "just trying to make sure that [it] can protect itself from irreparable harm while the New York courts are closed." .

In ruling on whether venue was appropriate, Vice Chancellor J. Travis Laster stated: "Frankly, I think the fact that the New York Court is unavailable is pretty dispositive." He explained that there is no dispute that "under normal circumstances, the forum selection clause in New York would be binding." Thus, he phrased the issue as "whether the circumstances, where New York—for understandable reasons given, the current crisis that the city is facing—has decided not to accept expedited commercial matters constitutes a situation that allows the parties to resort to other tribunals that are potentially capable of granting emergent or expedited relief."

In holding that venue was proper in the Court of Chancery to resolve the motion to expedite, the court reasoned that "case law holds that where a forum selection clause specifies a forum that is unavailable, parties can resort to a different forum, where appropriate jurisdiction exists" and that case law applies here. The court explained that this ruling was not intended to disrespect the courts of New York, but it acknowledges that "the reality is that [New York courts] face an extraordinary situation right now, and so it's understandable that they'd be in a position where they can't handle disputes."

Given the uncertain times that the COVID-19 pandemic has resulted in, including the unknown long-term effects, if any, that it will have on courts throughout the country, the court's ruling that "people can go to other courts, if the jurisdictional bases are met, and seek relief in those courts" is of paramount importance. Although this is a transcript ruling, in Delaware, parties may cite transcript rulings in briefs as authority.

Francis G.X. Pileggi is a litigation partner at Eckert Seamans Cherin & Mellott. His email address is [email protected]. He comments on key Delaware corporate and commercial decisions, and legal ethics rulings, at www.delawarelitigation.com.

Chauna A. Abner is an associate in the commercial litigation practice group at the Delaware office of the firm.