On July 31, 2025, Justice Borrok of the New York County Commercial Division issued a decision in Cyberbit, Inc. v. Cloud Range Cyber, LLC, 2025 NY Slip Op. 33078(U), holding that a person who was not a party to an agreement was nonetheless bound by its forum selection clause because of his close relationship to the transaction, explaining:
The fact a party is a non-signatory to an agreement is insufficient, standing alone, to preclude enforcement of a forum selection clause. A valid forum selection clause may be enforced against a non-signatory who is so closely related to the actual signatories or the dispute that enforcement of the forum selection clause against it is reasonably foreseeable. A non-signatory is closely related to a signatory where the former allegedly acted ‘in concert with the signatory.
According to the well pled amended complaint, Mike Dowdle (who is not being sued in his individual capacity) as a major decisionmaker and Principal on behalf of the Circadian Defendants knew and understood that New York was where disputes would be litigated. He is not alleged to have merely been a passive investor who merely put cash into an existing venture and where he lived with existing arrangements. The Purchase Order and Appendices provide for the New York forum. Mr. Dowdle conditioned the Circadian Defendants’ investments based on changes to the Purchase Order Agreements (the Purchase Order Amendment. Notably, however, although he did require certain changes to the Purchase Order Agreements, he did not require that the parties change where disputes would be litigated. Despite his self-serving attestation to the contrary, the Purchase Order Amendment does not merely seek the return of intellectual property. It makes other changes including as to the payment terms. It also discusses other territories. He thus is not entitled to dismissal based on his argument that it was not foreseeable that the Circadian Defendants could be sued in New York and that personal jurisdiction does not exist over them.
Indeed, according to the AC, the Circadian Defendants were closely related to the defendants and they acted in concert with the defendants as to the conduct that forms the predicate for this lawsuit. It is entirely irrelevant that the Purchase Order is dated prior to their investment as discussed. . . . .
Thus, the branch of the motion seeking dismissal based on lack of personal jurisdiction is denied.
(Internal quotations and citations omitted).