This follows up on a previous blog entry (Past a certain point, contracts are only words on paper) concerning a personal bugbear of mine: the assumption, by some attorneys, of the absolute power of the words of a contract. They aren't, they never were, and they never will be.

This is a pretty minor example, but I think a telling one. In Mitek Sys. v. United Services Automobile Assoc., D.Del. 12-cv-462 (2012-08-30) (Sleet, J.), the forum selection clause of the licensing agreement between the parties stated:

Judge Sleet held that the first-filed rule trumped the contract and ordered the case transferred to the Western District of Texas, where USAA had filed suit against Mitek two weeks before. Id., p. 5 (" ... the court will not enforce the Delaware forum selection clause of the License Agreement ... ").

What I find telling is that USAA didn't even focus on the public policy arguments for ignoring the forum selection clause—it appears the judge made those arguments pretty much by himself, while USAA instead argued that other agreements (with Texas forum selection clauses) superseded the contract with the Delaware forum selection clause. In other words, USAA's lawyers were so blinded by the clear wording of the contract with the Delaware forum selection clause (and their assumption that such words in a contract are absolute) that the only way they saw out of it was to argue other agreements must apply. Judge Sleet, knowing the law and possessing common sense, didn't waste his time:

Contracts are not absolute; they never were, and they never will be.