Knowyourmeme.com Network v. Nizri, 22-1322

Plaintiffs KnowYourMeme.com (KYM) and Palisades Capital sued Literally Media Ltd., Jacob Nizri, We Endeavor Ltd., and others after a proposed merger failed and asserted seven claims (breach, specific performance, fraudulent inducement/misrepresentation, negligent misrepresentation, interference with contractual relations, interference with prospective business advantage, and unjust enrichment).
Parties signed a Letter of Intent (LOI) on Sept. 17, 2018 that contained an exclusive forum-selection clause: actions “to enforce any provision of, or based on any right arising out of” the LOI must be brought in the courts of the State of Israel and the clause expressly covers Literally Media and its officers, directors, shareholders, and representatives.
Plaintiffs sought to enforce LOI terms and damages (not rescission); their fraud/negligent-misrepresentation claims were tied to the alleged failure to complete the acquisition contemplated by the LOI.
The district court dismissed the complaint under the doctrine of forum non conveniens, concluding the LOI’s forum-selection clause covered the asserted claims and parties.
Plaintiffs appealed, arguing (among other things) that some claims/defendants were not covered and that the district court lacked subject-matter jurisdiction; the Second Circuit affirmed.
The Court held the dismissal was a non-merits, without-prejudice forum non conveniens dismissal, permitting plaintiffs to pursue relief in the designated forum (Israel).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope/enforceability of LOI forum clause	Clause not applicable to all claims	Clause is valid and controls unless unreasonable/invalid	Clause was reasonably communicated and enforceable; applies broadly and controls dismissal
Do tort and equitable claims fall within clause	Fraud, negligence, interference, unjust enrichment are independent, not governed by clause	Tort/business tort claims arise from and require interpreting the LOI	Claims arise from the contractual relationship and therefore fall within the clause
Coverage of non-signatories (Nizri, We Endeavor)	Nizri and We Endeavor not parties to LOI so clause doesn't bind them	Clause covers officers/representatives; Nizri was Chairman and We Endeavor acted as representative	Clause extends to Nizri (officer) and to We Endeavor (acted as Literally Media’s representative)
Jurisdictional sequencing / remand	District court lacked subject-matter jurisdiction; case should be remanded	District court may decide forum non conveniens dismissal before jurisdictional issues	District court properly dismissed on forum non conveniens without resolving subject-matter jurisdiction (Sinochem governs)

Atl. Marine Constr. Co. v. U.S. Dist. Ct. for the W. Dist. of Texas, 571 U.S. 49 (2013) (forum-selection clauses are enforced via forum non conveniens and given controlling weight)
Magi XXI, Inc. v. Stato della Citta del Vaticano, 714 F.3d 714 (2d Cir. 2013) (forum-selection clauses are prima facie valid and may bind tort claims tied to contractual relationships)
Martinez v. Bloomberg LP, 740 F.3d 211 (2d Cir. 2014) (four-part test for enforcing forum-selection clauses and burden to show unreasonableness)
Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007) (forum-selection clause enforcement framework and scope analysis)
Fin. One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325 (2d Cir. 2005) (distinguishing claims that arise from a contract versus those incidental to it)
Banca Di Credito Cooperativo di Civitanova Marche e Montecosaro Soc. Cooperativa v. Small, [citation="852 F. App'x 15"] (2d Cir. 2021) (forum-selection clauses apply to unjust enrichment claims tied to contractual rights)
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) (district courts may dismiss on forum non conveniens without first resolving jurisdictional questions)
Chick Kam Choo v. Exxon, 486 U.S. 140 (1988) (forum non conveniens dismissal is non-merits and generally without prejudice)