Location, location, location: drafting enforceable forum-selection clauses under Atlantic Marine

Following the Supreme Court's decision in Atlantic Marine Construction Company, Inc. v. United States District Court for the Western District of Texas, forum-selection clauses in contracts appeared ironclad and impossible to circumvent in federal court. After all, in Atlantic Marine, the Court held that a valid forum-selection clause (should be) given controlling weight in all but the most exceptional cases and will be enforced under the transfer provisions of 28 U.S.C. § 1404(a). Over the last year, however, some lower courts have chipped away at the seemingly impenetrable shield that Atlantic Marine afforded to forum-selection clauses challenged in federal court. The recent decisions that distinguish and decline to enforce forum-selection clauses under Atlantic Marine offer valuable lessons to practitioners on "what not to do" when counseling clients and drafting forum-selection clauses.