Forum selection clauses are so familiar that they rarely invite fresh questions. Courts mostly enforce them after lawyers litigate motions to dismiss or transfer, and the parties move on. One remedial question, however, has long sat in plain sight: when a party breaches a forum selection clause by suing in the wrong court, why is the remedy limited by default to correcting the venue error rather than compensating the counterparty for the cost of enforcing the clause?
In Limits on Damages for Breach of a Forum Selection Clause, John Coyle and Tanya Monestier take that question seriously—and show that it was never foreclosed for particularly good reasons. The article is valuable precisely because it is doctrinally grounded, methodical, and unspectacular in the best sense: it demonstrates that even in well-trodden territory, there remain basic remedial questions worth asking, and answering, with ordinary tools of contract law.
The article’s opening offers a familiar observation. When a plaintiff files suit in a non-designated forum, the defendant’s options are procedural. It can seek dismissal or transfer. What it cannot usually recover (without contractual authorization) are the attorneys’ fees incurred in persuading the court to enforce the clause. Courts routinely say this is barred by the American Rule or the election-of-remedies doctrine, and the conversation ends there.
Coyle and Monestier reopen that conversation. The article’s core claim—that attorneys’ fees incurred in enforcing a forum selection clause should be considered expectation damages—got less crazy the more I thought about it. After all, the promise was “litigate only in Forum X,” then litigation in Forum Y predictably imposes costs that would not have been incurred had the contract been performed. Transfer does not erase those costs, but merely prevents further ones.
Much of the paper is devoted to attacking two doctrinal hedges that have made courts reluctant to adopt a damages default. They argue that the election-of-remedies argument (which says you can get either money or an injunction but not both) by arguing that dismissal/transfer is materially different from specific performance. Courts enforcing forum selection clauses are not ordering parties to litigate anywhere; they are allocating adjudicatory authority under procedural rules. And, they argue, even if one insisted on characterizing transfer as a form of specific performance, basic remedial doctrine has long permitted supplemental damages where necessary to make the non-breaching party whole.
Coyle and Monestier think that the American Rule justification fares no better. That rule bars recovery of attorneys’ fees as the cost of litigation, not as damages caused by breach. Courts routinely award attorneys’ fees as damages where the broken promise concerns litigation conduct itself: covenants not to sue, settlement agreements, and duties to defend. A forum selection clause is a promise of that same kind. Treating enforcement costs as unrecoverable “fees” rather than recoverable “damages” is a labeling choice, not a doctrinal necessity.
The article thus shows that the conventional wisdom against damages is surprisingly shallow, presumably because it was built on a few examples at a time when choice of forum clauses were far more rare than they are today.
Coyle and Monestier wisely devote the second half of the article to identifying limits—cases in which damages should not be awarded even if a clause was technically breached.
Some of these limits are straightforward and persuasive. If a forum selection clause is invalid, inapplicable, or unenforceable, there is no breach and no basis for damages. Or, if a court refuses to transfer or dismiss based on public-interest factors, awarding damages would undermine the very reasons the court chose to retain jurisdiction. And obviously, if non-signatories invoke a clause under the “closely related” doctrine, awarding damages would extend contractual remedies beyond the parties who actually bargained for them. In each of these settings, restraint follows naturally from the interaction between contract doctrine and procedural law.
The most contested, though politically attractive, limit is the one the authors themselves seem least confident about: consumer contracts. Coyle and Monestier argue that even if a consumer technically breaches a forum selection clause by suing at home, damages should generally be unavailable. The concern is familiar: asymmetric bargaining power, contracts of adhesion, and the risk that damages would further chill already fragile consumer claims. The claim is plausible—but noticeably less grounded than the rest of the paper. Unlike the earlier limits, it does not fall out of contract doctrine or remedial logic. But it seems obviously right as a default position, particularly when firms could otherwise contract into an attorney fee-granting rule.
The role of defaults generally is something the article usefully raises, without quite resolving: why should damages for breach of an FSC be the background rule rather than something parties must contract into explicitly? Sophisticated parties are perfectly capable of drafting fee-shifting provisions keyed to forum breach, and many already do. From that perspective, the case for a damages default—as opposed to mere permissibility—rests less on contract doctrine than on a judgment about under-deterrence and opportunism under existing law. The article gestures in that direction, particularly in its discussion of plaintiffs “taking a shot” in a favorable forum, but it never fully theorizes why courts should supply this remedy by default rather than leave it to private ordering.
The omission of a default rule equilibrium analysis is not fatal—indeed, it may reflect the authors’ deliberately modest ambitions—but it becomes more visible once the paper carves out categorical exceptions, especially for consumer contracts. At that point, the analysis quietly shifts from doctrinal reconstruction to institutional choice. But once it’s obvious that the damages rule here is merely a default, setting its baseline position poses complex questions of information exchange, bargaining power and social expectations. I hope the authors return to these questions in future work.
A paper that combines doctrinal seriousness, calibrated ambition, and a willingness to identify where doctrine runs out is rare. It is what makes Limits on Damages for Breach of a Forum Selection Clause worth reading, and lingering over, even for those who thought this area of law had little left to say.
