from the Iowa District Court for Polk County, David N. May,
plaintiffs appeal a district court order dismissing their
claims without prejudice based on a forum-selection clause.
J. Crowley and Edward J. Prill of Crowley & Prill Law
Firm, Burlington, for appellants.
William W. Graham and Wesley T. Graham of Duncan Green, P.C.,
Des Moines, and Patrick J. Rooney and Tyler P. Brimmer of
Fafinski Mark & Johnson, P.A., Eden Prairie, Minnesota,
case, involving an alleged scheme to inflate the purchase
price of a general aviation jet aircraft, presents the
question of what must be shown to avoid the effects of a
contractual forum-selection clause. Is fraud in
general enough, or does the fraud have to relate
specifically to the clause? Joining the Restatement
(Second) of Conflict of Laws, the United States Supreme
Court, and a number of our fellow state supreme courts, we
conclude that the fraud must relate to the clause itself.
This is a logical corollary to our prior holding that the
fraud necessary to set aside an agreement to arbitrate must
relate to the arbitration clause itself. See Dacres v.
John Deere Ins., 548 N.W.2d 576, 578 (Iowa 1996).
present case, the plaintiffs contend that the defendants
cheated them, but they have not alleged fraud with respect to
the forum-selection clause in the written contract.
Accordingly, we affirm the district court's order
dismissing this action without prejudice and requiring any
future action to be brought in Kansas.
Facts and Procedural History.
we are reviewing the grant of a motion to dismiss, we take as
true the plaintiffs' factual allegations. See Venckus
v. City of Iowa City, 930 N.W.2d 792, 798 (Iowa 2019).
The Parties Involved.
Karon is an Iowa resident and the sole member of Peddler,
LLC, an Iowa limited liability company. Karon is also the
sole shareholder of BVS, Inc., a nonparty Iowa corporation
based in Cedar Rapids. Peddler leases an aircraft to BVS and
Karon so their personnel can travel the United States and
Canada to provide training to financial institutions.
Elliott is the president and a director of Elliott Aviation
Aircraft Sales, Inc., an Iowa corporation, and the president
and a director of Elliott Aviation, Inc., an Iowa
corporation. At all relevant times, James Mitchell was an
aircraft sales manager at Elliott Aviation Aircraft Sales,
Inc. The parties have collectively referred to Wynn Elliott,
James Mitchell, Elliott Aviation Aircraft Sales, and Elliott
Aviation as "the Elliott Defendants."
The Cessna Citation X Agreement.
April 2014, Karon was looking to upgrade Peddler's 1999
Cessna Citation Bravo jet aircraft to a Cessna Citation X, a
larger, faster jet. Karon wanted Peddler to sell the Bravo
and purchase a Citation X in a tax-free exchange pursuant to
§ 1031 of the Internal Revenue Code. See 26
U.S.C. § 1031 (2012).
had been doing business with the Elliott Defendants for over
thirty years, and he decided to use their services in
purchasing the Citation X. Thus Karon proposed to Mitchell,
who was acting on behalf of the Elliott Defendants, that (1)
Karon would search for and find a Citation X suitable for
Peddler's needs, (2) Karon would negotiate a price with
the Citation X seller on the behalf of Peddler, (3) Karon
would notify the Elliott Defendants, and (4) the Elliott
Defendants would act as the broker to accomplish the §
1031 exchange. In the brokered transaction, the Elliott
Defendants would acquire the chosen Citation X from the
seller for Peddler, and then Peddler would trade in the Bravo
to the Elliott Defendants for an agreed-upon $1.8 million,
pay the remaining cash balance due, and immediately accept
delivery of the Citation X. The Elliott Defendants would be
compensated through a transaction fee of $100, 000 plus
whatever profit they received on the lease or resale of the
Bravo. Mitchell, on the behalf of the Elliott Defendants,
orally accepted Karon's proposal.
Karon was to be responsible for finding the Citation X, both
Mitchell and Karon researched the aircraft market and found a
used 2000 Citation X that would suit Peddler's needs. The
Citation X was being sold by Kansas-headquartered Cessna
Aircraft Company, a company for which Mitchell used to work.
When Karon contacted Mitchell to inform him that he would
begin price negotiations with Cessna, Mitchell offered to
negotiate the price himself. Mitchell represented that he
(Mitchell) would be able to negotiate a lower price because
of his prior relationship with Cessna. Karon agreed.
alleges that Mitchell informed him Cessna wanted $6 million
for the Citation X. Karon responded to Mitchell that he would
pay no more than $5.8 million. The negotiations continued.
and Cessna arrived at a final acquisition price, which
Mitchell told Karon was $5.8 million. Karon accepted this
price, and the parties then negotiated additional details,
including the installation of winglets to increase the
plane's range and capacity, pilot training, and
subscriptions to certain service programs. A written purchase
agreement (Purchase Agreement) was drawn up between the
parties based upon the $5.8 million aircraft acquisition
price. The brokerage fee, winglets, pilot training, and
service program subscriptions brought the total contract
value to approximately $6.7 million. Karon signed the
Purchase Agreement on behalf of Peddler on May 30, and
Mitchell signed on behalf of Elliott Aviation Aircraft Sales
on June 2. Approximately three weeks later, on June 26, the
Citation X was transferred from Cessna to Elliott Aviation
Aircraft Sales and then immediately to Peddler. At that time,
Peddler paid the Elliott Defendants the $100, 000 brokerage
Purchase Agreement contained the following
9. CHOICE OF LAW AND JURISDICTION. [Elliott Aviation
Aircraft Sales] and [Peddler] agree this Agreement will be
deemed made and entered into and will be performed wholly
within the State of Kansas, and any dispute arising under,
out of, or related in any way to this Agreement, the legal
relationship between [Elliott Aviation Aircraft Sales] and
[Peddler], or the transaction that is the subject of this
Agreement will be governed and construed under the laws of
the State of Kansas, USA, exclusive of conflicts of laws. Any
dispute arising under, out of, or related in any way to this
Agreement, the legal relationship between [Elliott Aviation
Aircraft Sales] and [Peddler] or the transaction that is the
subject of this Agreement will be adjudicated solely and
exclusively in the United States District Court for the State
of Kansas, in Wichita, Kansas, or, if that court lacks
jurisdiction, Kansas state courts of the 18th
Judicial District. Each of the parties consents to the
exclusive, personal jurisdiction of these courts and, by
signing this Agreement, waives any objection to venue of the
The Purchase Agreement also had a "severability and
If any provision of this Agreement is or becomes null or
unenforceable by operation of law, the other provisions will
remain valid and enforceable. The waiver by either party of a
breach of any provision of this Agreement will not constitute
a waiver of any subsequent breach of the same or any other
provision nor will it be considered a waiver of the provision
the Purchase Agreement contained an integration clause:
"This Agreement constitutes the entire agreement between
the parties with respect to its subject matter and supersedes
all prior written or oral agreements, representations,
negotiations, proposals or discussions between the parties
with respect to its subject matter."
February 2015, "an outside source" informed Karon
that the actual acquisition price for the Citation X was
likely far less than $5.8 million. Accordingly, Karon
contacted the Elliott Defendants and requested documentation
of the acquisition price. Peddler and Karon allege they
ultimately discovered "via a separate and independent
source" that the acquisition price was indeed
misrepresented, and they demanded reimbursement of the $400,
000 difference between $5.8 million and the actual $5.4
million acquisition price. The Elliott Defendants refused.
This litigation followed.
February 26, Peddler filed suit against Elliott Aviation
Aircraft Sales in the Iowa District Court for Linn County.
Fact discovery took place. The defendant filed a motion for
summary judgment which, on April 7, 2016, the district court
denied. A jury trial was scheduled for January 9,
2017. On December 29, 2016-eleven days prior to the scheduled
commencement of trial in Linn County-Peddler voluntarily
dismissed its petition without prejudice pursuant to Iowa
Rule of Civil Procedure 1.943.
year later, on February 23, 2018, Peddler, this time joining
with Karon, refiled its action in the Iowa District Court for
Polk County against all the Elliott Defendants. The petition
alleged that the Elliott Defendants had breached their oral
brokerage contract with Peddler; the Elliott Defendants had
fraudulently misrepresented the acquisition price of the
Citation X and failed to disclose the true acquisition price;
and Mitchell, acting individually and as an agent of the
Elliott Defendants, had breached a fiduciary duty to Peddler
by misrepresenting the acquisition price.
Elliott Defendants, in lieu of filing an answer, moved to
dismiss on three grounds. First, the Elliott Defendants
maintained the claims were barred by the applicable Kansas
statutes of limitations. Second, the Elliott Defendants
asserted improper venue based on the forum-selection clause
in the Purchase Agreement. Third, the Elliott Defendants
urged that the petition failed to allege a cause of action
against Wynn Elliott or Elliott Aviation, Inc. Peddler and
Karon resisted, and a hearing was held on June 7.
13, the district court issued an order dismissing the case
without prejudice based on improper venue:
Defendants ask this Court to enforce Paragraph 9.
Specifically, Defendants ask this Court to: (1.) dismiss with
prejudice because, inter alia, Plaintiffs'
claims are barred by the applicable Kansas statutes of
limitation; or, in the alternative, (2.) dismiss without
prejudice because Kansas, not Iowa, is the parties'
Plaintiffs respond that, because they have alleged that the
purchase agreement was "procured by fraud" and is
"void ab initio," the Court cannot enforce
Paragraph 9 of the purchase agreement. Plaintiffs emphasize
that, because the purchase agreement is not "fully
integrated," their claims of fraudulent inducement are
Importantly, though, Plaintiffs' fraud claims are about
the transaction as a whole, through which they were allegedly
"defrauded out of $400, 000." Plaintiffs make no
claim that Paragraph 9 was induced by fraud. Nor do
Plaintiffs claim that Paragraph 9 itself is
Thus, the problem before the Court is similar to one that
sometimes arises in the context of arbitration: If a contract
contains an arbitration clause, and if the plaintiff claims
that the entire contract was fraudulently induced,
should the arbitration clause be enforced?
In Prima Paint, the United States Supreme Court held
that if the plaintiff's allegations of fraud are directed
to the total transaction, and not to the arbitration
clause itself, then the arbitration clause should be
enforced. Prima Paint Corp. v. Flood & Conklin Mfg.
Co., 388 U.S. 395 (1967). Arbitrators, not judges,
should resolve allegations of fraud in the transaction
"as a whole." See Madol v. Dan Nelson Auto.
Grp., 372 F.3d 997, 1000 (8th Cir. 2004) (applying
Iowa has adopted the Prima Paint rule. [The court
went on to quote from Dacres, 548 N.W.2d at 578].
Of course, Paragraph 9 is not an arbitration clause. Instead,
it contains venue and choice of law provisions. Courts have
held, however, that the Prima Paint rule applies
with equal force to venue and choice of law provisions.
See, e.g., Stamm v. Barclays Bank of N.Y.,
960 F.Supp. 724, 729 (S.D.N.Y. 1997) (citing Prima
Paint and other authorities for the proposition that a
"claim of fraud in the inducement of a contract is
insufficient to invalidate a forum selection or choice-of-law
clause found in that contract"). As Magistrate Judge
Walters correctly observed, venue and choice of law
provisions "would be practically unenforceable if they
could be avoided simply by an allegation of fraud in the
inducement." Morris v. McFarland Clinic P.C.,
No. CIV. 4:03-CV-30439, 2004 WL 306110, at *2 (S.D. Iowa Jan.
The Court concludes, therefore, that the Prima Paint
rule should be used to determine whether Paragraph 9 is
enforceable. See Dacres, 548 N.W.2d at 578. As
already explained, Plaintiffs' claims of fraud are about
the transaction as a whole. Plaintiffs do not claim
that Paragraph 9 itself was fraudulently induced.
Therefore, under the Prima Paint rule, Paragraph 9
should be enforced.
and Peddler filed a timely appeal, which we retained.
Standard of Review.
review rulings on motions to dismiss for correction of errors
at law. Venckus, 930 N.W.2d at 798.
Does the Prima Paint Rule Apply in Iowa to
paragraph 9 of the Purchase Agreement, there is no dispute
that the plaintiffs' claims "aris[e] under, out of,
or [are] related . . . to" the agreement between Elliott
Aviation Aircraft Sales and Peddler or "the transaction
that is the subject of" that agreement. Therefore,
taking paragraph 9 at its terms, exclusive jurisdiction and
venue for this case should rest in the federal and state
courts located in Wichita, Kansas.The plaintiffs, however,
argue that their allegation of fraud changes things.
district court in this case applied the rule provided by the
United States Supreme Court for arbitration clauses in
Prima Paint Corp. v. Flood & Conklin Manufacturing
Co., 388 U.S. 395, 87 S.Ct. 1801 (1967). Prima Paint
purchased the assets of Flood & Conklin's paint
business. Id. at 397, 87 S.Ct. at 1802. After Prima
Paint failed to make the first payment due under the
agreement, Flood & Conklin served a notice to arbitrate.
Id. at 398, 87 S.Ct. at 1803. Prima Paint filed suit
seeking rescission of the entire agreement on the basis of
fraud. Id. Flood & Conklin moved to stay the
court action pending arbitration, contending that whether
there was fraud in the inducement of the consulting agreement
was a question for the arbitrators. Id. at 399, 87
S.Ct. at 1803. The district court granted Flood &
Conklin's motion, and the court of appeals affirmed.
Id. at 399, 87 S.Ct. at 1803-04.
Supreme Court also affirmed. Id. at 406-07, 87 S.Ct.
at 1807. It held that under the Federal Arbitration Act
(FAA), a claim of fraud in the inducement of the entire
contract did not vitiate an arbitration clause referring any
controversy or claim arising out of or relating to the
agreement to arbitration:
Accordingly, if the claim is fraud in the inducement of
arbitration clause itself-an issue which goes to the
"making" of the agreement to arbitrate-the federal
court may proceed to adjudicate it. But the statutory
language does not permit the federal court to consider claims
of fraud in the inducement of the contract generally.
Id. at 403-04, 87 S.Ct. at 1806 (footnote omitted).
court followed the Prima Paint rule in
Dacres, 548 N.W.2d 576. Dacres brought an action
against his employer to recover damages for breach of
contract and fraud. Id. at 577. The employer invoked
an arbitration clause in the parties' contract.
Id. Over Dacres's opposition, the district court
ordered that the action for damages be stayed and that the
dispute be settled by arbitration. Id. The
arbitration panel found against Dacres. Id. at
577-78. On appeal, Dacres argued that the arbitration clause
should not have been enforced because (among other things) it
had been procured by fraud. Id. at 578. We held that
because Dacres's allegations of fraud in the inducement
went to the entire agreement rather than specifically to the
arbitration clause, it was appropriate for the arbitration
panel rather than the district court to resolve the merits of
[I]f a claim of fraud in the inducement is aimed at the
entire contract and that contract includes an agreement for
arbitration of disputes with respect thereto, the fraud claim
is properly to be determined by the arbitrators. Only if the
fraud in the inducement claim is specifically directed at the
arbitration clause itself is it subject to litigation in a
court. . . . Because Dacres'[s] allegations of fraud in
the inducement go to the entire agreement, they were properly
determined by the arbitrators.
Id. (citation omitted).
question then is whether Prima Paint applies to a
forum-selection clause. In Scherk v. Alberto-Culver
Co., the Supreme Court held that it did as a matter of
federal law. 417 U.S. 506, 519-20, 94 S.Ct. 2449, 2457
(1974). Scherk, a German citizen, sold his trademarks and
interest in a European toiletries business to Alberto-Culver,
a Delaware corporation with its principal place of business
in Illinois. Id. at 508, 94 S.Ct. at 2451-52. The
contract called for the arbitration of disputes in France
with the application of Illinois law. Id. at 508, 94
S.Ct. at 2452. After differences between the parties arose,
Alberto-Culver filed suit in the United States District Court
for the Northern District of Illinois, and Scherk moved to
dismiss for lack of jurisdiction based on the forum-selection
clause. Id. at 509, 94 S.Ct. at 2452. The district
court denied the motion, and the court of appeals affirmed
the denial. Id. at 510, 94 S.Ct. at 2452-53.
Supreme Court reversed, concluding that the forum-selection
clause should control. Id. at 519-21, 94 S.Ct. at
2457-58. The Court noted, "An agreement to arbitrate
before a specified tribunal is, in effect, a specialized kind
of forum-selection clause that posits not only the situs of
suit but also the procedure to be used in resolving the
dispute." Id. at 519, 94 S.Ct. at 2457.
Court further noted,
In The Bremen we noted that forum-selection clauses
"should be given full effect" when "a freely
negotiated private international agreement [is] unaffected by
fraud . . . ." 407 U.S., at 13, 12, 92 S.Ct., at 1915,
1914. This qualification does not mean that any time a
dispute arising out of a transaction is based upon an
allegation of fraud, as in this cause, the clause is
unenforceable. Rather it means that an arbitration or
forum-selection clause in a contract is not enforceable
if the inclusion of that clause in the contract was the
product of fraud or coercion. Cf. Prima Paint Corp.,
388 U.S. 395, 87 S.Ct. 1801.
Id. at 519 n.14, 94 S.Ct. at 2457 n.14 (emphasis
added); see M/S Bremen v. Zapata Off-Shore Co., 407
U.S. 1, 15, 92 S.Ct. 1907, 1916 (1972) ("The correct
approach would have been to enforce the forum clause
specifically unless Zapata could clearly show that
enforcement would be unreasonable or unjust, or that the
clause was invalid for such reasons as fraud or
overreaching." (Emphasis added.)).
and M/S Bremen were decided under federal law.
Unlike in the arbitration context, where the FAA applies,
there is no federal legislation that governs state court
proceedings when a forum-selection clause is at issue.
Cf. Stewart Org., Inc., 487 U.S. at 28-29, 108 S.Ct.
at 2243 (holding that 28 U.S.C. § 1404(a) governs the
enforceability of a forum-selection clause in a diversity
case in federal court). Accordingly, enforcement of a
forum-selection clause in state court is a matter of state
law. See Perkins v. CCH Computax, Inc., 415 S.E.2d
755, 757 ( N.C. Ct. App. 1992) (declining to apply federal
law), rev'd, 423 S.E.2d 780, 781 ( N.C. 1992),
superseded in part by statute, 1993 N.C. Sess. Laws
a number of state appellate courts have followed the United
States Supreme Court's lead in ruling that
forum-selection clauses are enforceable unless the fraud goes
specifically to the clause. See, e.g., Ex parte
PT Sols. Holdings, LLC, 225 So.3d 37, 45 (Ala. 2016)
("White has never contended that the forum-selection
clause itself is invalid as the result of fraud, undue
influence, or overweening bargaining power. Instead, she
challenged the validity of the contract as a whole based on
when she executed it. White is certainly entitled to argue
that the contract never became effective, but the argument
must be raised in the forum dictated by the forum-selection
clause because the possible invalidity of the contract as a
whole does not negate enforcement of the forum-selection
clause."); Bennett v. Appaloosa Horse Club, 35
P.3d 426, 431-32 (Ariz.Ct.App. 2001) (holding that the
forum-selection clause requiring litigation in Idaho applied
to the plaintiff's fraud and consumer fraud claims);
Provence v. Nat'l Carriers, Inc., 360 S.W.3d
725, 730 (Ark. 2010) ("[W]e hold that in Arkansas a
party like the appellants in the instant case must plead
fraud in the inducement of the forum-selection clause itself
to avoid its application. Generalized allegations of fraud
with respect to the inducement of the contract as a whole, as
the appellants have made in the instant case, will not
operate to invalidate a forum-selection clause.");
Edge Telecom, Inc. v. Sterling Bank, 143 P.3d 1155,
1162 (Colo.App. 2006) ("We agree with the rationale . .
. and similarly hold that so long as a forum selection clause
is itself not the result of fraud, the parties can fairly
expect to litigate any issues, including the plaintiff's
general allegations of fraud, in the designated
forum."); Nat'l Indus. Grp. (Holding) v. Carlyle
Inv. Mgmt. L.L.C., 67 A.3d 373, 380 (Del. 2013)
("[A] party cannot make 'an end-run around an
otherwise enforceable [f]orum [s]election [p]rovision through
an argument about the enforceability of other terms in the
contract' . . . ." (alterations in original)
(quoting Ashall Homes Ltd. v. ROK Entm't Grp.,
Inc., 992 A.2d 1239, 1248 (Del. Ch. 2010))); Golden
Palm Hosp., Inc. v. Stearns Bank Nat'l Ass'n,
874 So.2d 1231, 1235 (Fla. Dist. Ct. App. 2004) ("When
it claims that a forum selection clause is invalid based on
fraud, the party must show that the clause itself is the
product of the fraud or that the fraud caused the inclusion
of the clause in the agreement."); Brandt v.
MillerCoors, LLC, 993 N.E.2d 116, 122 (Ill.App.Ct. 2013)
("[I]n order to invalidate the clause on the ground of
fraud and overreaching, the fraud alleged must be specific to
the forum selection clause itself." (quoting IFC
Credit Corp. v. Rieker Shoe Corp., 881 N.E.2d 382, 395
(Ill.App.Ct. 2007))); Vanier v. Ponsoldt, 833 P.2d
949, 952 (Kan. 1992) ("Parties to a contract may choose
the jurisdiction in which all actions or proceedings arising
from their transaction shall be heard. The forum selected by
the parties must bear a reasonable relationship to the
transaction and the forum-selection clause in the contract
must not have been entered into under fraud or duress."
(syllabus by the court)); Vallejo Enter., L.L.C. v.
Boulder Image, Inc., 950 So.2d 832, 835 (La. Ct. App.
2006) ("For the forum-selection clause to be
unenforceable on the grounds of fraud or overreaching, it
must be shown that the inclusion of the clause in the
contract was the product of fraud or coercion.");
Karty v. Mid-Am. Energy, Inc., 903 N.E.2d 1131, 1135
(Mass. App. Ct. 2009) ("[B]ecause the allegations set
out in Karty's complaint and amended complaint speak only
to fraud in the inducement as to the entire subscription
agreement and fail to allege or set out any facts concerning
the specific question whether the forum-selection clause was
obtained by fraud, we see no error in the dismissal of his
complaint."); Paradise Enters. Ltd. v. Sapir,
811 A.2d 516, 521 ( N.J.Super.Ct.App.Div. 2002)
("[G]enerally [forum-selection clauses] are 'prima
facie valid and enforceable in New Jersey[, ]' and . . .
'New Jersey courts will decline to enforce a clause only
if it fits into one of three exceptions to the general rule:
(1) the clause is a result of fraud or
"overweening" bargaining power; (2) enforcement
would violate the strong public policy of New Jersey; or (3)
enforcement would seriously inconvenience trial.' . . .
Bremen 'represents the prevailing view on the
enforceability of forum-selection clauses, and has been
applied by federal and state courts confronted by
jurisdictional choices involving forum-selection
clauses.' General acceptance of the validity of forum
selection agreements principles is corroborated by the
Restatement (Second) of Conflict of Laws . . .
." (first quoting Caspi v. Microsoft Network,
L.L.C., 732 A.2d 528, 530 ( N.J.Super.Ct.App.Div. 1999);
and then quoting Kubis v. Perszyk Assocs., Inc. v. Sun
Microsystems, Inc., 680 A.2d 618, 624 (N.J. 1996)));
Original Pizza Pan v. CWC Sports Grp., Inc., 954
N.E.2d 1220, 1223 (Ohio Ct. App. 2011) ("It is settled
law that unless there is a showing that the alleged fraud or
misrepresentation induced the party opposing a forum
selection clause to agree to inclusion of that clause in the
contract, a general claim of fraud or misrepresentation as to
the entire contract does not affect the validity of the forum
selection clause. Thus even if plaintiffs were induced to
enter into the agreement by fraud, deceit and
misrepresentation, this would not affect the validity of the
forum selection clause." (Citation omitted.) (quoting
Four Seasons Enters. v. Tommel Fin. Servs., Inc.,
No. 77248, 2000 WL 1679456, at *2 (Ohio Ct. App. Nov. 9,
2000)); Patriot Commercial Leasing Co. v. Kremer Rest.
Enters., LLC, 915 A.2d 647, 653 (Pa. Super. Ct. 2006)
("A forum selection clause can be avoided for fraud only
when the fraud relates to procurement of the forum selection
clause itself, standing independently from the remainder of
the agreement."); In re Lyon Fin. Servs., Inc.,
257 S.W.3d 228, 232 (Tex. 2008) ("We have held that
fraudulent inducement to sign an agreement containing a
dispute resolution agreement such as an arbitration clause or
forum-selection clause will not bar enforcement of the clause
unless the specific clause was the product of fraud or
coercion."); Paul Bus. Sys., Inc. v. Canon U.S.A.,
Inc., 397 S.E.2d 804, 807 (Va. 1990) ("According to
the modern view, which we now embrace, contractual provisions
limiting the place or court where potential actions between
the parties may be brought are prima facie valid and should
be enforced, unless the party challenging enforcement
establishes that such provisions are unfair or unreasonable,
or are affected by fraud or unequal bargaining power.");
Caperton v. A.T. Massey Coal Co., 690 S.E.2d 322,
348 ( W.Va. 2009) (adopting the federal approach and stating
that the party challenging the contractually chosen forum
must show "that the clause was invalid for such reasons
as fraud or overreaching"); Durdahl v. Nat'l
Safety Assocs., Inc., 988 P.2d 525, 528 (Wyo. 1999)
("We adopt the modern approach and hold forum selection
clauses are prima facie valid and will be enforced
absent a demonstration by the party opposing enforcement that
the clause is unreasonable or based upon fraud or unequal
handful of state courts, such as the Utah Supreme Court, take
a minority approach that allows a plaintiff's claim that
the contract as a whole was entered into fraudulently to
potentially render the forum-selection clause unenforceable.
See, e.g., Energy Claims Ltd. v. Catalyst Inv.
Grp. Ltd., 325 P.3d 70, 83 (Utah 2014). In Energy
Claims, the Utah Supreme Court reasoned,
The major flaw with the majority approach is that the
district court must accept as valid a provision in a contract
despite the plaintiff's contention that the entire
contract was induced by fraud. We also find it problematic
that the majority approach imposes upon the plaintiff the
burden of making a "separate and distinct
challenge" to the forum selection clause itself, when
the only support the plaintiff has-the allegation that the
entire contract and all of the provisions contained therein
are fraudulent-is deemed to be necessarily inadequate. The
application of this approach may also result in defrauded