A recent Chancery decision is notable for the following quote: “A party cannot act intentionally to create harm, then invoke equity in relief of that harm. If that is not a traditional equitable maxim, it should be.” Pentwater Capital Management LP v. Kaz, C.A. No. 2021-1087-SG, Slip op. at 14 (Del. Ch. April 8, 2022).
The introductory sentence to this opinion is also noteworthy: “The power of the common-law courts is largely limited to awards of damages. Not so with this court of equity which in addition to damages may use its equitable puissance to order litigants to refrain from, and even to take, actions.” Slip op. at 1. The court in this case largely refused to enforce a forum selection clause due to delay and other procedural infelicities by the moving party. (Use of the word “puissance” should be noted.)
Countless highlights of decisions and commentary have been provided on these pages regarding forum selection clauses. Adding to that scholarship is a recent law review article, unrelated to this case, entitled: John F. Coyle, Contractually Valid Forum Selection Clauses, 108 Iowa Law Review (2022 Forthcoming).