## Facts

- A Canadian winery negotiated by telephone with a California distributor for the purchase of “Altec” wine corks manufactured in France.
- The parties’ oral telephone agreement set quantity, price, and payment and shipping terms; no forum-selection term was discussed.
- The winery later placed a second telephone order on the same terms, ordering about 1.2 million corks in total.
- The French manufacturer shipped the corks to Canada in multiple shipments and sent invoices for each shipment.
- Each invoice included a French-language clause asserting exclusive jurisdiction in the Court of Commerce of Perpignan, France; invoices arrived at varying times (before, with, or after shipments).
- The winery alleged the corks caused “cork taint,” leading to withdrawal of more than one million bottles from the market.
- The winery sued the distributor and manufacturer in federal court in California for breach of contract, strict liability, and false advertising.

## Issues

1. Whether a forum-selection clause printed on invoices sent after an oral agreement becomes part of the contract absent express assent or a prior course of dealing.
2. What standard of review applies to (a) the existence of a forum-selection agreement and (b) the enforcement of a valid forum-selection clause.

## Decision

- The Ninth Circuit reversed the dismissal and remanded for further proceedings.
- The court held the invoice forum-selection clauses were not part of the parties’ contract because the contract was formed by telephone without any forum term and the invoices were unilateral, post-agreement documents.
- The court held the existence of a forum-selection agreement is reviewed de novo as a contract-formation question; enforcement of an established forum-selection clause is reviewed for abuse of discretion.

## Legal Principles

- A forum-selection clause is enforceable only if it is part of the parties’ agreement; its existence is a threshold contract-formation question.
- Boilerplate terms added unilaterally in invoices after contract formation are not incorporated into the contract without assent.
- Acceptance of goods and payment, standing alone, does not constitute acceptance of new, post-agreement invoice terms that would modify the parties’ bargain.
- In the absence of a prior course of dealing or other evidence of assent, a party is not bound to forum-selection terms first introduced in subsequent invoices.
- Appellate review is de novo for whether the parties formed an agreement containing a forum-selection clause; once such a clause is shown to exist, the dismissal or transfer decision enforcing it is reviewed for abuse of discretion.

## Conclusion

Because the parties formed their contract by telephone without a forum term and the seller’s invoices attempted to add an exclusive French forum unilaterally, the forum-selection clauses were not part of the contract, and dismissal in favor of litigation in France was improper.


Chateau des Charmes Wines, Ltd. v. Sabaté USA, Inc., 328 F.3d 528 (9th Cir. 2003)