A recent Delaware Court of Chancery decision awarded fees incurred to defend a lawsuit that was filed in a forum contrary to the forum selection clause of the parties’ agreement, as well as the fees incurred in connection with enforcing the forum selection clause. In Namdar v. Fried, C.A. No. 2024-0535-JTL (Del. Ch. June 6, 2025), the Court explained why it awarded damages for a breach of a forum selection clause.

Highlights

• The opinion provides copious scholarly footnotes to support its reasoning, and followed the 1995 Delaware Supreme Court decision in El Paso. The Court observed that a Chancery decision just last year read El Paso to require a different result, although other Chancery decisions have followed El Paso to reach a conclusion similar to the instant ruling. See footnote 2-6 and accompanying text.
   
• The basics of damages for breach of contract are addressed to support the reasoning in this case. Slip op. at 10-13.
   
• The Court examined the Delaware Supreme Court precedent that buttresses damages for breach of a forum selection clause. Slip op. at 14-16.
   
• The Court also explained why injunctive relief is not the only available remedy for breach of a forum selection clause, and provided a thorough analysis of why a long list of other defenses were rejected.
   
• The Court also observed that it has the equitable flexibility to reject an award of fees when facts warranted such a result. See Slip op. at 16-46.