In a recent decision, the Delaware Court of Chancery faced the increasingly common situation in which parties' contractual provisions select Delaware law to govern the parties' disputes in an apparent attempt to bypass the law of another state that otherwise would be applicable. After a lengthy choice of law analysis, the court ruled that the Delaware forum selection clauses at issue could not support jurisdiction given California's fundamental interest in the public policies at issue.

Specifically, in Focus Financial Partners, v. Holsopple, (Del. Ch. Oct. 26, 2020), Vice Chancellor J. Travis Laster dismissed claims for breach of contract, violation of the Delaware Uniform Trade Secrets Act, and tortious interference with business relations asserted against defendant Scott Holsopple, a California resident, for lack of personal jurisdiction. The breach of contact claims concerned employment-related provisions of the agreements at issue, such as the noncompetition, nonsolicitation, and confidentiality provisions contained therein. The plaintiff argued the court had jurisdiction over Holsopple as a result of the Delaware forum selection clauses contained in certain of the agreements at issue.  However, Laster held that: in the absence of Delaware law, California law would control the key provisions in the agreements, a true conflict exists between Delaware and California law as to the validity of the Delaware forum selection clauses, and applying Delaware law to give effect to the forum selection clauses "would offend a fundamental policy of the state of California on a matter where California has a materially greater interest."