Original Pizza Pan v. CWC Sports Group, Inc.
954 N.E.2d 1220
Ohio Ct. App.2011Background
- In June 2009, The Original Pizza Pan (Ohio) and The Sports Link (California) entered an endorsement agreement for exclusive use of Brian Robiskie’s name/likeness in Ohio quick-service advertising.
- Robiskie’s agent Ornstein handled negotiations; a week later Ornstein said Robiskie could not execute without his input and approval.
- Pizza Pan’s owner Peters asserted exclusivity was essential and that Sports Link/Ornstein had authority to grant exclusive rights.
- The contract included a forum-selection clause designating California courts and California law for governing the agreement.
- Approximately four months later, Donatos began using Robiskie’s likeness; Pizza Pan alleged Sports Link concealed lack of authority and misrepresented exclusivity.
- Pizza Pan sued in November 2009 for fraud and negligent misrepresentation; the trial court dismissed the complaint based on the forum-selection clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the forum-selection clause governs fraud/misrepresentation claims | Pizza Pan argued the clause is irrelevant to non-contract claims | The clause is valid and controls where claims arise | Clause enforceable; supports dismissal of claims |
| Whether enforcing the clause would be unreasonable or unjust under Barrett factors | Ohio corporation, Ohio negotiations, Ohio witnesses; California forum would deprive day in court | Clause arising from a freely negotiated commercial contract; limited evidence of burden | No basis shown to deem enforcement unreasonable; Barrett factors not satisfied |
Key Cases Cited
- The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (U.S. 1972) (forum-selection clauses generally enforceable absent strong contrary factors)
- Kennecorp v. Country Club Convalescent Hosp., 66 Ohio St.3d 173 (Ohio 1993) (forum-selection clause controls absent strong showing of unreasonableness)
- Barrett v. Picker Internatl., 68 Ohio App.3d 820 (Ohio App. 1990) (unreasonableness assessed under specific factors; rigidity of enforcement debated)
- Discount Bridal Serv., Inc. v. Kovacs, 127 Ohio App.3d 373 (Ohio App. 1998) (fraud claims cannot override forum-selection clause absent inducement or strong policy concern)
- Preferred Capital, Inc. v. Assoc. in Urology, 453 F.3d 718 (6th Cir. 2006) (forum-selection clauses in commercial contracts are presumptively valid)
- Shell v. R.W. Sturge, Ltd., 55 F.3d 1227 (6th Cir. 1995) (factors for enforcing forum-selection clauses in appellate analysis)