PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 17-2826

______________

In re: MCGRAW-HILL GLOBAL EDUCATION 

HOLDINGS LLC; 

 MCGRAW-HILL SCHOOL EDUCATION 

HOLDINGS LLC,

 Petitioners 

_____________

On a Petition for Writ of Mandamus from the

United States District Court for the Eastern District of 

Pennsylvania

Related to District Court No. 2-17-cv-01818

District Judge: The Honorable Wendy Beetlestone

_____________

No. 17-3444

_____________

In re: 

 BOB KRIST,

 Petitioner 
2

_______________

On a Petition for Writ of Mandamus from the

United States District Court for the Eastern District of 

Pennsylvania

Related to District Court No. 2-16-cv-06248

District Judge: The Honorable Cynthia M. Rufe

Argued March 21, 2018

Before: SMITH, Chief Judge, HARDIMAN, and ROTH, 

Circuit Judges.

(Filed: November 21, 2018)

Christopher P. Beall

Fox Rothschild

100 Park Avenue

17th Floor

New York, NY 10178

Michael Beylkin

Fox Rothschild

1225 17th Street

Denver, CO 80202

Beth L. Weisser [ARGUED]

Fox Rothschild 

2000 Market Street
3

20th Floor

Philadelphia, PA 19103

Counsel for McGraw-Hill Global Education 

Holdings LLC and McGraw-Hill School Education 

Holdings LLC

Gregory Albright

Harmon Seidman Bruss & Kerr

485 Dorset Street

Cambria, CA 93428

Counsel for Bob Krist

Maurice Harmon [ARGUED]

Harmon & Seidman

11 Chestnut Street

New Hope, PA 18938

Counsel for Ed Kashi and Bob Krist

________________

OPINION OF THE COURT

________________

SMITH, Chief Judge.

These consolidated mandamus petitions require us 

to decide whether two professional photographers 

bringing separate copyright infringement actions are 

bound by a forum selection clause in contracts they did not 
4

sign. We conclude that the photographers are not bound 

because they are not intended beneficiaries of the 

agreements, nor are they closely related parties. Our

conclusion means that one District Court got it right, and 

the other got it wrong. But mandamus is an extraordinary 

remedy. Because the erring District Court’s mistakes were 

not clear or indisputable, we decline to issue the writ.

I. Background

Ed Kashi and Bob Krist are professional 

photographers. Kashi resides in Montclair, New Jersey, 

while Krist resides in New Hope, Pennsylvania. To market 

their photographs, Kashi and Krist entered into 

representation agreements with Corbis Corporation, a 

stock photography agency. The agreements provided 

Corbis authority to sub-license the photographers’ works 

to third parties on a non-exclusive, fixed-duration basis. In 

exchange, Kashi and Krist received a percentage of the 

fees negotiated by Corbis. The fees were reported to the 

photographers in periodic royalty statements. The royalty 

statements listed each photograph licensed and the fees 

collected, but did not identify the product in which the 

photograph would be used or specify the scope of the 

license. In addition to the royalty statements, the 

photographers had the right to request an audit once a year 

of Corbis’ records with respect to their images.

The legal terms of the representation agreements 
5

were robust. Exemplar agreements in the record1include 

assignment of rights to recover, as well as forum selection

clauses. Paragraph 6, titled “Protection of Accepted

Images,” reads: 

Corbis, in its sole discretion and without 

obligation to do so, shall have full and 

complete authority to make and settle 

claims or to institute proceedings in 

Corbis’ or your name but at Corbis’ 

expense to recover damages for Accepted 

Images lost or damaged by customers or 

other parties and for the unauthorized use 

of Accepted Images. You shall provide 

reasonable assistance in Corbis’ efforts in 

 

1 The actual representation agreements signed by 

Kashi and Krist are not in the record. However, exemplar 

agreements signed by other photographers and submitted 

as evidence in other actions are included. Counsel for 

Kashi and Krist acknowledged at oral argument that the 

exemplar representation agreements were similar to those 

signed by Kashi and Krist. Oral Arg. 30:38–31:15; see 

also Kashi Resp. 39–40 (conceding that Kashi’s 

representation agreement contained a New York forum 

selection clause). Counsel did not indicate any material 

differences between the photographers’ agreements and 

the exemplar agreements, and also acknowledged that the 

exemplar agreements were available to the District Court 

judges. Oral Arg. 48:21–49:08. 
6

connection with such claims or proceedings.

Any recovery, after payment of all costs and 

expenses including outside attorneys’ fees, 

shall be treated as Revenue and you shall 

receive the appropriate royalty, or 100% in 

the case of lost/damaged images. Following 

your notification, if Corbis declines to 

bring such a claim within sixty (60) days, 

we shall notify you, and you may bring 

actions in your own name at your own 

expense and retain all recoveries.

Krist App’x 132 (emphasis added). A forum selection

clause in paragraph 12.3, titled “Law,” reads:

This Agreement shall be governed by the 

laws of the State of New York, irrespective 

of its conflict of law rules. In any action 

arising out of this Agreement, you consent to 

personal jurisdiction and the exclusive venue 

of the state and federal courts sitting in New 

York City, New York.

MHE App’x 308, 320, 332, 354; Krist App’x 133.2

 

2 One of the exemplar representation agreements 

provided in the record prescribes King County,

Washington, rather than New York, New York, as the 

forum. This fact is inconsequential because neither Kashi 
7

Acting upon its authority under the representation 

agreements, Corbis sub-licensed Kashi and Krist’s 

photographs to McGraw-Hill Global Education Holdings

LLC and McGraw-Hill School Education Holdings LLC

(collectively “McGraw-Hill” or “MHE”), publishers of 

educational materials for K–12, college, and post-graduate 

students. Corbis utilized a two-step process in sublicensing photographs to McGraw-Hill. First, Corbis 

negotiated a series of master agreements known as 

“Preferred Pricing Agreements” (PPAs), which set forth 

volume-based pricing and other terms. Second, Corbis 

issued invoices for all of McGraw-Hill’s licensure 

purchases. The invoices constituted McGraw-Hill’s 

license to use each image. They detailed the scope of the 

license, including limitations “by publication, number of 

copies, distribution area, image size, language, duration 

and/or media (print or electronic).” MHE App’x 165. The

invoices also listed the price to be paid by McGraw-Hill

for each image, and included the name of the photographer 

responsible for the work.

Each invoice incorporated by reference Corbis’

standard “Terms and Conditions,” which governed the 

transaction alongside the terms set forth in the PPAs. Both 

the Terms and Conditions and the PPAs included 

mandatory, exclusive forum selection clauses, with nearly 

 

nor Krist allege that their representation agreements 

provided for a forum other than New York, New York.
8

identical language. Titled “Choice of Law / Jurisdiction / 

Attorneys’ Fees,” the clause reads in part:

Any dispute regarding this Agreement shall 

be governed by the laws of the State of New 

York, and by Titles 15, 17 and 35 of the 

U.S.C., as amended, and the parties agree to 

accept the exclusive jurisdiction of the state 

and federal courts located in New York, New 

York, regardless of conflicts of laws.

MHE App’x 284 (2014 PPA); cf. id. at 237 (Terms and 

Conditions revised Nov. 19, 2001). The only material 

difference between the forum selection clauses in the 

PPAs and in the Terms and Conditions is that the PPAs 

specify “New York, New York” as the forum, id. at 284, 

while the Terms and Conditions specify “New York, 

USA,” id. at 237.3

 

3 Any difference in the forum selection clauses 

contained in the PPAs and the Terms and Conditions is not 

discussed by either the parties or the two District Court 

judges. Thus, we will refer to the clauses singly as the

“Corbis forum selection clause” or “Corbis FSC.”

The parties do dispute whether the forum selection 

clauses contained in Kashi and Krist’s representation 

agreements are “identical in substance” to those contained 

in the McGraw-Hill agreements. Compare MHE Resp. 3 

n.2 with Krist Reply 17. We consider this argument below 

in Section III.B.
9

In 2016 and 2017, respectively, Krist and Kashi 

each brought a copyright action against McGraw-Hill in 

the Eastern District of Pennsylvania. Krist and Kashi both 

allege that McGraw-Hill used their photographs beyond 

the terms of the Corbis licensure agreements, in violation 

of federal copyright law. The photographers allege a range 

of ways in which their photographs were used without 

permission, including exceeding the allowed number of 

publications printed, the geographic distribution area, the 

type of medium, and the time period for publication. In 

each proceeding, McGraw-Hill moved to transfer venue

under 28 U.S.C. § 1404(a). It argued that the disputes 

implicate the Corbis–McGraw-Hill agreements, and that 

per the terms of those agreements, the proper venue was 

the United States District Court for the Southern District 

of New York.

The Honorable Wendy Beetlestone, presiding over

the Kashi action, denied the transfer motion. Judge 

Beetlestone reasoned that because Kashi’s claims are 

based purely on copyright law, the action is not a “dispute 

regarding th[e] Agreement[s],” and thus not subject to the 

forum selection clauses contained in the Corbis–McGrawHill agreements. MHE App’x 5. Judge Beetlestone further 

concluded that, absent an applicable forum selection

clause, McGraw-Hill had not met its burden under 

§ 1404(a) to warrant a transfer.

The Honorable Legrome Davis, considering a 

parallel motion in the Krist action, reached the opposite
10

conclusion. Judge Davis determined that the dispute is a 

dispute regarding the agreements, because the copyright 

claims depend upon the interpretation of the Corbis–

McGraw-Hill agreements. Judge Davis held that despite 

Krist’s status as a non-signatory, he was subject to the 

forum selection clause as an intended third-party 

beneficiary. Judge Davis also concluded that it was 

foreseeable that Krist would be bound under the Corbis 

forum selection clause. In light of those findings, Judge 

Davis granted the § 1404(a) transfer. 4

McGraw-Hill proceeded to file a petition for a writ 

of mandamus, asking this Court to direct a transfer of the 

Kashi action. Krist also petitioned for a writ of mandamus, 

doing so after his motion for reconsideration was denied. 

Krist asks this Court to direct a vacatur of the transfer 

order. The petitions were consolidated and referred to this 

panel. They present a range of doctrinal issues bearing on 

the ultimate question: whether either District Court erred 

in such a manner that mandamus is warranted. Numerous 

other actionsimplicating the Corbis forum selection clause

have been adjudicated in the Eastern District of 

Pennsylvania, which have similarly yielded divergent 

results. The petitioners argue that the divergence of views 

speaks to the need for a ruling on mandamus. We agree 

that clarity is needed, yet the reasoned divergence of views 

 

4 Following Judge Davis’ transfer order, but prior to 

the transfer being effectuated, the case was reassigned to 

the Honorable Cynthia M. Rufe. 
11

militates against granting the writ.

II. Jurisdiction, Standard of Review, and Applicable 

Law

A. Jurisdiction

Our jurisdiction over this mandamus action falls 

under the All Writs Act, codified at 28 U.S.C. § 1651. The 

District Court had federal question jurisdiction over both

copyright infringement actions pursuant to 28 U.S.C. 

§ 1331, and power to transfer those actions under 28 

U.S.C. § 1404. Because we have the power to review a 

district court’s transfer order upon entry of final judgment, 

28 U.S.C. § 1291, we may also review such an order on 

mandamus. In re: Howmedica Osteonics Corp., 867 F.3d 

390, 399 (3d Cir. 2017); Nascone v. Spudnuts, Inc., 735 

F.2d 763, 773 (3d Cir. 1984). We exercise plenary review 

over the legal determinations underlying a district court’s

grant or denial of a § 1404(a) transfer. Sunbelt Corp. v. 

Noble, Denton & Assocs., Inc., 5 F.3d 28, 30 (3d Cir. 

1993).

Because Judge Davis ordered a transfer, the Krist 

action is no longer pending in the Third Circuit. Yet we 

still retain jurisdiction over transferred cases until the 

transferee court “proceeds” with the action. Howmedica,

867 F.3d at 400. “[O]nce the transferee court proceeds 

with the transferred case, the decision as to the propriety 

of transfer is to be made in the transferee court.” In re 

United States, 273 F.3d 380, 384 (3d Cir. 2001). However, 
12

the term “proceeds” is interpreted as more than, for 

example, the mere entry of a scheduling order.

Howmedica, 867 F.3d at 400. In the typical case, so long 

as the party seeking mandamus has “acted with sufficient 

dispatch,” we will retain jurisdiction. In re United States, 

273 F.3d at 384.

For example, in Howmedica the plaintiff waited

twenty-seven days before seeking mandamus, and the 

transferee court had issued two case management orders

during that time. 867 F.3d. at 400. In In re United States, 

the government waited thirty-three days to seek 

mandamus, and the transferee court had already issued a 

scheduling order. Id. (citing In re United States, 273 F.3d 

at 382, 384; Order, United States v. Streeval, No. 01-cv0084 (M.D. Tenn. June 6, 2001), ECF No. 12). In both 

cases, we concluded that our jurisdiction was proper 

because the petitioners had acted with sufficient dispatch.

Id.

Here, the transfer was docketed in the Southern 

District of New York (S.D.N.Y.) on October 24, 2017. The 

operative start date for our purposes is, however, October 

6, 2017, when the case was reassigned to Judge Rufe and 

Krist’s motion for reconsideration was “implicitly 

denied.” Krist Pet’r 5, 10. Krist filed his petition for a writ 

of mandamus in this Court on November 8, 2017. That 

amounts to thirty-three days between the October 6, 2017 

transfer and the November 8, 2017 filing of Krist’s 

mandamus petition. Krist Pet’r 5.
13

As for action in the transferee court, Krist filed a 

letter motion requesting a stay on November 9, 2017. The 

Honorable Loretta Preska in the S.D.N.Y. granted the stay 

on December 4, 2017, after receiving notification that this 

Court had referred the mandamus petition to a merits 

panel. Judge Preska entered no other orders on the 

transferred action. Thus, the transferee court cannot be 

said to have “proceeded” with the action.

Krist’s thirty-three day delay is the same as has 

previously been deemed “sufficient dispatch.” And 

because the transferee court has not “proceeded” with the 

action, we retain jurisdiction.

B. Mandamus Standard

Relief via a writ of mandamus is “extraordinary” 

and is typically appropriate “only upon a showing of (1) a 

clear abuse of discretion or clear error of law; (2) a lack of 

an alternate avenue for adequate relief; and (3) a likelihood 

of irreparable injury.” United States v. Wright, 776 F.3d 

134, 146 (3d Cir. 2015). The writ will issue only if the 

party seeking the writ “meets its burden to demonstrate 

that its right to the writ is clear and indisputable.” Sunbelt 

Corp., 5 F.3d at 30 (quoting Carteret Sav. Bank, F.A. v. 

Shushan, 919 F.2d 225, 232 (3d Cir. 1990)). 

These mandamus actions arise out of motions to 

transfer venue under 28 U.S.C. § 1404(a). In the venue 

transfer context, the three-factor mandamus test collapses 

into the first factor. Howmedica, 867 F.3d at 401. That is 
14

so because transfer orders “as a class” meet the second and 

third requirements. Id. The second requirement is met 

because “the possibility of an appeal in the transferee 

forum following a final judgment . . . is not an adequate 

alternative to obtain the relief sought.” Sunbelt Corp., 5 

F.3d at 30. The third factor is also met “because an 

erroneous transfer may result in ‘judicially sanctioned 

irreparable procedural injury.’” Howmedica, 867 F.3d at 

401 (quoting Chi., R.I. & P.R. Co. v. Igoe, 212 F.2d 378, 

381 (7th Cir. 1954)).

Despite the elimination of the second and third 

factors, the first factor, “a clear and indisputable ‘abuse of

discretion or . . . error of law,’” remains a high bar. Id.

(quoting Wright, 776 F.3d at 146). As the Fifth Circuit has 

explained, “we require more than showing that the court 

misinterpreted the law, misapplied it to the facts, or 

otherwise engaged in an abuse of discretion.” In re Lloyd’s 

Register N. Am., Inc., 780 F.3d 283, 290 (5th Cir. 2015).

“[E]ven reversible error by itself is not enough to obtain 

mandamus.” Id. Instead, errors of law must “at least 

approach[] the magnitude of an unauthorized exercise of 

judicial power, or a failure to use that power when there is 

a duty to do so.” Commc’n Workers of Am., AFL-CIO v. 

Am. Tel. & Tel. Co., 932 F.2d 199, 208 (3d Cir. 1991)

(quoting Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 

1988)). This is so because “mandamus must not become a 

means by which the court corrects all potentially 

erroneous orders.” Lloyd’s, 780 F.3d at 290 (citing In re 
15

Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th Cir. 

2008)).

Moreover, we retain discretion to deny the writ even 

in the face of such errors. Commc’n Workers of Am., 932 

F.2d at 208. We have admonished judges to “proceed both 

carefully and courageously” in exercising their discretion.

Lusardi, 855 F.2d at 1070. 

C. Venue Transfer Standard 

Under 28 U.S.C. § 1404(a), a district court may 

transfer a civil action to another district where the case 

might have been brought, or to which the parties have 

consented, for the convenience of the parties and witnesses 

and in the interest of justice. Jumara v. State Farm Ins. 

Co., 55 F.3d 873, 879–80 (3d Cir. 1995).

The § 1404(a) movant bears the burden of 

persuasion. Id. at 879. Factors the court must consider 

include the three enumerated under the statute—

convenience of the parties, convenience of the witnesses, 

and the interests of justice—along with all other relevant 

private and public factors, including the plaintiff’s choice 

of forum and the local interest in deciding local

controversies close to home. Atlantic Marine Constr. Co. 

v. U.S. District Court, 571 U.S. 49, 62 n.6 (2013) (nonexhaustive list of factors). Courts consider these factors to 

determine, on balance, whether the litigation would “more

conveniently proceed and the interests of justice be better 

served by transfer to a different forum.” Jumara, 55 F.3d 
16

at 879 (quoting 15 Charles A. Wright, Arthur R. Miller & 

Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE, § 

3847 (2d ed. 1986)). 

In 2013, the Supreme Court held that the traditional 

balancing test is modified when a forum selection clause 

applies to a dispute. Atlantic Marine, 571 U.S. at 63. In the 

face of a valid forum selection clause, a district court 

modifies its analysis in three ways. First, no weight is 

given to the plaintiff’s choice of forum. Id. Second, the 

court does not consider arguments about the parties’ 

private interests. Id. at 64. Instead, “a district court may 

consider arguments about public-interest factors only.” Id. 

Third, “when a party bound by a forum-selection clause 

flouts its contractual obligation and files suit in a different 

forum, a § 1404(a) transfer of venue will not carry with it 

the original venue’s choice-of-law rules—a factor that in 

some circumstances may affect public-interest 

considerations.” Id. (citing Piper Aircraft Co. v. Reyno, 

454 U.S. 235, 241, n.6, (1981)). The Supreme Court 

recognized that because the public interest factors—the 

only factors that remain to be balanced—“will rarely 

defeat a transfer motion, the practical result is that forumselection clauses should control except in unusual cases.”

Id. (citation omitted). “In all but the most unusual cases,” 

the parties will be held to their bargained-for choice of 

forum. Id. at 66. 
17

D. Applicable Law

Federal law controls the question of whether to 

enforce a forum selection clause. Howmedica, 867 F.3d at

407 n.11 (quoting Stewart Org., Inc. v. Ricoh Corp., 487 

U.S. 22, 32 (1988)); Jumara, 55 F.3d at 877; Phillips v. 

Audio Active Ltd., 494 F.3d 378, 384 (2d Cir. 2007) 

(“[F]ederal law should be used to determine whether an 

otherwise mandatory and applicable forum clause is 

enforceable . . . because enforcement of forum clauses is 

an essentially procedural issue.”). However, “[t]he 

interpretation of a forum selection clause is an analytically 

distinct concept from the enforceability of that clause.”

Collins v. Mary Kay, Inc., 874 F.3d 176, 181 (3d Cir. 

2017). “The question of the scope of a forum selection 

clause is one of contract interpretation.” John Wyeth & 

Brother Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1073 

(3d Cir. 1997). Our case law directs us to use state law to 

determine the scope of a forum selection clause—that is, 

“‘whether the claims and parties involved in the suit are 

subject’ to the clause.” Collins, 874 F.3d at 180 

(quoting Martinez v. Bloomberg LP, 740 F.3d 211, 217 

(2d Cir. 2014)). State law, therefore, typically governs 

whether the clause covers a particular claim, as well as 

whether the clause applies to a non-signatory as an 

intended beneficiary or closely related party. Collins, 874 

F.3d at 183–85 (applying Texas law to determine whether 

plaintiff’s New Jersey Wage Payment Law claim fell 

within the scope of forum selection clause); E.I. DuPont 
18

de Nemours & Co. v. Rhone Poulenc Fiber & Resin 

Intermediates, S.A.S., 269 F.3d 187, 196–98 (3d Cir. 2001) 

(applying Delaware law to determine whether party was 

third-party beneficiary or closely related); Martinez, 740 

F.3d at 221–24 (explaining that federal law should not be 

used to determine the scope of a forum selection clause in 

a federal-question case); cf. Wyeth, 119 F.3d at 1074

(acknowledging applicability of English law but applying 

“general contract law principles” in light of the parties’ 

briefing).

Parties are generally free to specify which law 

governs a contract’s interpretation, and may agree to 

modify the choice specified in the contract. See Adams v. 

Raintree Vacation Exch., LLC, 702 F.3d 436, 438 (7th Cir. 

2012). The Corbis forum selection clause includes a 

choice of law provision specifying the laws of the State of 

New York. See MHE App’x 284 (2014 PPA). Yet for 

purposes of determining whether the claims are subject to 

the clause, the parties cite federal case law. For purposes 

of determining whether the clause can be applied to Kashi

and Krist, the photographers cite New York law and

federal case law governing third party beneficiaries, and 

only federal case law as to the closely related parties 

doctrine. McGraw-Hill cites only federal case law. Of 

course, McGraw-Hill seeks to enforce an agreement

containing a New York choice of law clause and thus can 

hardly object to the invocation of New York law in 

analyzing whether Kashi and Krist are intended 
19

beneficiaries. See Collins, 874 F.3d 180–81. In these 

circumstances—notwithstanding our usual approach of 

applying state law to both the claim and party components 

of the question of scope—as the parties agree in their 

briefing about the law governing two of the three 

components, we will accept the parties’ stipulation. See 

Wyeth, 119 F.3d at 1074; Adams v. Raintree Vacation 

Exch., LLC, 702 F.3d 436, 438 (7th Cir. 2012); Phillips, 

494 F.3d at 386. We will therefore apply federal law to 

evaluate whether the clause covers the claims, New York 

law to assess whether the photographers should be bound 

by the clause as intended beneficiaries, and federal law in 

evaluating whether Kashi and Krist are closely related 

parties.

Finally, if we determine that the disputes fall within 

the scope of the forum selection clause and that the clause 

applies to the non-signatory photographers, we will look 

to this Court’s precedent to determine whether we would 

enforce the clause for purposes of the § 1404(a) motions.

III. Analysis

There are four substantive issues that bear on 

whether the forum selection clause applies to the 

photographers and whether transfer was appropriate. First, 

we must consider whether Kashi and Krist are bound by 

the terms of the agreements between McGraw-Hill and 

Corbis—agreements neither Kashi nor Krist signed.

Under traditional principles of contract law, non-
20

signatories may be bound by a forum selection clause if 

they are intended third-party beneficiaries of the contract, 

or if they are closely related parties. See DuPont, 269 F.3d 

at 194–99 (considering doctrines in the context of an 

arbitration clause); In re Prudential Ins. Co. of Am. Sales 

Practice Litig. All Agent Actions, 133 F.3d 225, 229 (3d 

Cir. 1998) (“As this court has previously recognized, ‘a 

variety of nonsignatories of arbitration agreements have 

been held to be bound by such agreements under ordinary 

common law contract and agency principles.’”) (quoting 

Barrowclough v. Kidder, Peabody & Co., Inc., 752 F.2d 

923, 938 (3d Cir. 1985) (citations omitted), overruled on 

other grounds by Pritzker v. Merrill Lynch, Pierce, Fenner 

& Smith, Inc., 7 F.3d 1110, 1112 (3d Cir. 1993)); Dayhoff 

Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1298 n.9 (3d Cir. 

1996) (noting that arbitration agreements are “a 

specialized kind of forum-selection clause”) (quoting 

Scherk v. Alberto–Culver Co., 417 U.S. 506, 519 (1974)).

Second, our cases and those of other circuits establish that 

we will not enforce a forum selection clause against a nonsignatory unless such enforcement was foreseeable to the 

non-signatory. Coastal Steel Corp. v. Tilghman 

Wheelabrator Ltd., 709 F.2d 190, 203 (3d Cir. 1983), 

overruled on other grounds by Lauro Lines v. Chasser, 

490 U.S. 495 (1989); Howmedica, 867 F.3d at 407 n.13 

(listing cases). Third, the dispute itself must fall within the 

scope of the forum selection clause. The parties do not 

invoke New York substantive law on this point. Instead, 

the parties make much of whether, under this Court’s 
21

precedent, any asserted license is part of the plaintiffs’ 

prima facie case or merely a defense. Fourth, we consider 

whether the Atlantic Marine-modification to the § 1404(a) 

analysis applies when non-signatories are bound by a 

forum selection clause.

A. Are Kashi and Krist bound by the forum selection 

clause?

Contrary to the District Court’s ruling in the Krist 

action, we conclude that the photographers were not 

intended third-party beneficiaries of the agreements 

between McGraw-Hill and Corbis. Nor are they bound

under the closely related parties doctrine. The 

photographers therefore are not subject to the forum 

selection clause.

i. The photographers are not intended third-party 

beneficiaries.

A non-signatory may be bound by a contractual 

forum selection clause if he is an intended third-party 

beneficiary to the contract. DuPont, 269 F.3d at 195 

(citing Coastal Steel Corp., 709 F.2d at 202–04). The New 

York Court of Appeals has adopted the Restatement 

(Second) of Contracts for determining third-party 

beneficiary status. Subaru Distribs. Corp. v. Subaru of 

Am., Inc., 425 F.3d 119, 124 (2d Cir. 2005) (citing Fourth 

Ocean Putnam Corp. v. Interstate Wrecking Co., 485

N.E.2d 208, 212 (N.Y. 1985)). As the Restatement 

explains:
22

(1) Unless otherwise agreed between 

promisor and promisee, a beneficiary of a 

promise is an intended beneficiary if 

recognition of a right to performance in the 

beneficiary is appropriate to effectuate the 

intention of the parties and either

(a) the performance of the promise will 

satisfy an obligation of the promisee to pay 

money to the beneficiary; or

(b) the circumstances indicate that the 

promisee intends to give the beneficiary the 

benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary 

who is not an intended beneficiary.

Restatement (Second) of Contracts § 302 (1981)

(“Restatement”).

The touchstone is the parties’ intent, primarily as 

reflected in the language of their contract: “The intention 

to benefit the third party must appear from the four corners 

of the instrument . . . [and] must be that of both parties to 

the . . . contract.” Stainless, Inc. v. Employers Fire Ins. Co., 

69 A.D.2d 27, 33–34 (N.Y. App. Div. 1979), aff’d, 406 

N.E.2d 490 (N.Y. 1980). “A court in determining the 

parties’ intention should consider the circumstances 

surrounding the transaction as well as the actual language 

of the contract.” Subaru Distribs. Corp., 425 F.3d at 124 
23

(quoting Restatement § 302, Reporter’s Note cmt. a). As 

an example, “[a] contractual requirement that the promisor 

render performance directly to the third party shows an 

intent to benefit the third party.” Id. (emphasis added). As 

the First Circuit has explained: “The structure of the 

performance required under the particular contract often 

provides the critical indicum [sic] of intent in third party 

beneficiary cases. Unless the performance required by the 

contract will directly benefit the would-be intended 

beneficiary, he is at best an incidental beneficiary.” Pub. 

Serv. Co. of New Hampshire v. Hudson Light & Power 

Dep’t, 938 F.2d 338, 342 (1st Cir. 1991).

McGraw-Hill makes two arguments for why the 

photographers are intended beneficiaries of its agreements 

with Corbis. First and foremost, McGraw-Hill argues that 

the photographers benefit directly from the agreements.

Second, it argues that the listing of the photographers’ 

names on the Corbis invoices demonstrates McGrawHill’s and Corbis’ intent to benefit the photographers.

We reject McGraw-Hill’s first argument out-ofhand. The photographers were not entitled to any 

compensation as a direct result of the Corbis–McGrawHill agreements. The photographers receive compensation 

only by operation of the separate representation 

agreements they entered into with Corbis. McGraw-Hill 

points to no provision of the PPAs or invoices that directly 

entitles either photographer to anything.
24

Moreover, McGraw-Hill’s “direct” beneficiary 

theory is contrary to the examples provided in the 

Restatement. As an illustration from the Restatement 

explains: “B contracts with A to buy a new car 

manufactured by C. C is an incidental beneficiary, even 

though the promise can only be performed if money is paid 

to C.” Restatement cmt. e. ills. 17. The manufacturer in 

that illustration is not a party to the sale, and it is not owed 

performance under the terms of the sale. Rather, it is owed 

performance under the terms of its contract with the 

dealer. Likewise here, the photographers are incidental

beneficiaries of the Corbis–McGraw-Hill agreements; 

they are owed compensation only by virtue of their own 

contracts with Corbis.

Judge Davis reasoned that the limitations contained 

in agreements between McGraw-Hill and Corbis directly 

benefit the photographers. He explained that Krist benefits 

from the limitations on the use of the copyrighted material, 

including limitations on the size of the images, numbers of 

copies, and duration of use. Krist App’x 375. Judge Davis 

stated that “[p]rovisions limiting the actions of a 

contracting party that are intended to benefit a third party 

make the third party an intended beneficiary.” Id. For this 

proposition, Judge Davis cited an illustration from the 

Restatement. In it, a downstream landowner is an intended 

beneficiary of a contract between an operator of a fertilizer 

plant and a municipal sewer authority because the contract 

includes a term intended to prevent harm to that 
25

landowner, namely, a term requiring the removal of 

specified types of waste from the fertilizer plant’s 

wastewater. Id. (citing Restatement cmt. d. ills. 10). We 

cannot agree. Krist is the exclusive owner of the rights to 

reproduce, distribute, and display the photographs by 

virtue of the Copyright Act. McGraw-Hill is an infringer 

to the extent it exceeds any license that Krist or a sublicensor granted it. The limitations in the license are not a 

contractual benefit to Krist, because his right to those 

limitations arises from the Copyright Act.

Judge Davis also reasoned that the invoices’

“specific listing of the copyright holder for each licensed 

image evidences the intent of the parties to benefit the 

copyright holders.” Krist App’x 376. Kashi and Krist do 

not offer a strong rebuttal to this reasoning. At oral

argument, counsel for the photographers suggested that 

the identification of the photographers was for the sole 

purpose of enabling the publisher to list a photo credit, as 

was required for purposes of the publication. Oral Arg. 

22:33–22:50. Overall, Judge Davis did not place strong 

emphasis on this point, and the invoices alone do not

provide sufficient evidence of an intent to bestow 

contractual rights or benefits on the photographers. For 

example, in one of the illustrations from the Restatement 

quoted above, although the name of the car manufacturer 

will likely be listed on the contract between the buyer and 

seller, the manufacturer is still not an intended beneficiary 

of that contract.
26

Finally, the photographers argue that McGraw-Hill 

should be estopped from asserting an intended third-party 

beneficiary argument because of a position it took in prior 

litigation over the Corbis agreements. McGraw-Hill 

argues vigorously against estoppel. In light of our 

conclusion that the photographers are not intended thirdparty beneficiaries, we need not consider the application

of estoppel. We do, however, take note of McGraw-Hill’s 

previous arguments.

In an earlier case in the Southern District of New 

York, a photographer in privity with Corbis attempted to 

assert rights under the Corbis–McGraw-Hill agreements, 

including a provision that entitled Corbis to bill the 

publisher “ten (10) times the normal license fee for any 

unauthorized use.”

5 Defending against the photographer’s 

 

5 Lefkowitz v. McGraw-Hill Glob. Educ. Holdings, 

LLC, 23 F. Supp. 3d 344, 349, 359 (S.D.N.Y. 2014)

(“Plaintiff’s breach of contract claim seeks to enforce, in 

his own right, the Corbis Agreements that Plaintiff alleges 

govern the relationship between Corbis and [McGrawHill]. Specifically, Plaintiff seeks to recover under the Ten 

Times Provision in those contracts.”). 

The “Ten Times Provision” is contained within a 

paragraph of the Corbis Terms and Conditions titled 

“Unauthorized Use.” It reads:

Without limitation, Images may not be 

utilized as a trademark or service mark, or for 
27

right to bring an action under the contract to which it was 

a non-signatory, McGraw-Hill argued that the 

photographers were not intended third-party beneficiaries.

In its briefing on a motion to dismiss, McGraw-Hill 

 

any pornographic use, unlawful purpose or 

use, or to defame any person, or to violate any 

person’s right of privacy or publicity, or to 

infringe upon any copyright, trade name, 

trademark, or service mark of any person or 

entity. Unauthorized use of these Images 

constitutes copyright infringement and 

shall entitle Corbis to exercise all rights 

and remedies under applicable copyright 

law, including an injunction preventing 

further use and monetary damages against all 

users and beneficiaries of the use of such 

Images. Corbis in its sole discretion 

reserves the right to bill you (and you 

hereby agree to pay) ten (10) times the 

normal license fee for any unauthorized 

use, in addition to any other fees, damages, 

or penalties Corbis may be entitled to under 

this Agreement or applicable law. The 

foregoing is not a limiting statement of 

Corbis’ rights or remedies in connection with 

any unauthorized use.

MHE App’x 236; Krist App’x 145 (emphasis added).
28

cogently summarized the intended third-party beneficiary 

doctrine, then argued that the Corbis Terms and 

Conditions “identify as the parties to their arrangements

only MHE and Corbis, and they contain both antiassignment and integration clauses and do not identify any 

third party in their choice of forum provisions.” Krist 

App’x 439 (emphasis added). McGraw-Hill argued that 

this “strongly suggest[s] that the two parties to the contract 

intended the contract to concern and to benefit only 

themselves.” Id. at 439–40 (quoting Subaru Distribs. 

Corp., 425 F.3d at 125). We consider this reasoning

compelling, much more so than the arguments in favor of 

contractual third-party beneficiary status that McGrawHill has raised in these cases. We also note that while 

McGraw-Hill made a full-throated explication of the 

intended third-party beneficiary doctrine in the Lefkowitz 

matter—in order to argue against the doctrine’s

application—McGraw-Hill only feebly invoked the 

doctrine before the District Court in the cases before us.

Indeed, as McGraw-Hill concedes in a supplemental letter 

brief, the term “intended beneficiary” did not appear in 

their opening briefs filed in the District Court. 

ii. The photographers are not closely related parties.

McGraw-Hill invokes another doctrine to argue that 

the photographers should be bound as non-signatories to 

the Corbis–McGraw-Hill agreements: the closely related 
29

parties doctrine.

6 The closely related parties doctrine is a 

form of equitable estoppel. This Court recognized in 

 

6 There is some ambiguity in our cases concerning 

whether we even recognize the closely related parties 

doctrine. In Dayhoff, the court declined to allow nonsignatories to invoke an arbitration agreement. 86 F.3d at

1296. Howmedica relied on Dayhoff in declining to apply

the doctrine. Howmedica, 867 F.3d at 407 (“We have held, 

however, that a forum-selection clause ‘can be enforced 

only by the signator[y] to [the] agreement[ ].’”)

(alterations in original) (quoting Dayhoff, 86 F.3d at 1293–

97)). The photographers read Howmedica as repudiating

the closely related parties doctrine writ large. Kashi Resp. 

33–34; Krist Pet’r 17. But Howmedica did not foreclose 

the doctrine entirely and, indeed, proceeded to analyze 

whether the defendants there would constitute “closely 

related parties” if the doctrine were applicable. See 867 

F.3d at 407 n.13. Moreover, cases decided before 

Howmedica did not read Dayhoff as setting forth such a 

bright-line rule. See Carlyle Inv. Mgmt. LLC v. 

Moonmouth Co. SA, 779 F.3d 214, 219 (3d Cir. 2015)

(affirming a district court’s application of the closely 

related doctrine, permitting the non-signatory to enforce a 

forum selection clause against a signatory); DuPont, 269 

F.3d at 199 (“We have never applied an equitable estoppel 

theory to bind a non-signatory to an arbitration clause 

although there appears to be no reason why, in an 
30

DuPont that it had “never applied an equitable estoppel 

theory to bind a non-signatory to an arbitration clause 

although there appears to be no reason why, in an 

appropriate case, we would refrain from doing so.” 269 

F.3d at 199. 

“In determining whether a non-signatory is closely 

related to a contract, courts consider the non-signatory’s 

ownership of the signatory, its involvement in the 

negotiations, the relationship between the two parties and 

whether the non-signatory received a direct benefit from 

the agreement.” Carlyle Inv. Mgmt. LLC v. Moonmouth 

Co. SA, 779 F.3d 214, 219 (3d Cir. 2015) (permitting non-

 

appropriate case, we would refrain from doing so.”). The 

DuPont Court described Dayhoff in a parenthetical as 

holding that “non-signatories could not enforce arbitration 

clause against signatory where no exception applied, but 

successor to signatory could compel arbitration.” 269 F.3d 

at 195 (emphasis added) (citing Dayhoff, 86 F.3d at 1294–

96); see also Adams v. Raintree Vacation Exch., LLC, 

702 F.3d 436, 440 (7th Cir. 2012) (characterizing 

Dayhoff’s reluctance to bind non-signatories as 

consequence of considerations unique to arbitration 

agreements, namely surrendering one’s right to 

adjudication before a court). And we have otherwise 

suggested that non-signatories may be bound to 

contractual terms under traditional principles of contract 

and agency law. In re Prudential, 133 F.3d at 229. 
31

signatory to enforce forum selection clause against 

signatory under the closely related parties doctrine). 

Here, it is clear that the photographers are not in an 

ownership or subsidiary relationship with Corbis. The 

record establishes only that they were in privity with 

Corbis for the purpose of licensing artwork. Moreover, 

there is no evidence that the photographers were involved 

in contract negotiations between Corbis and McGrawHill. Finally, the photographers did not, in any natural 

reading of the word, receive a “direct” benefit from the 

Corbis–McGraw-Hill agreements. Accordingly, there is 

precious little basis for applying the closely related parties 

doctrine.

iii. Despite error, mandamus is not warranted on this 

issue alone.

Having concluded that the District Court in Krist 

erred in its conclusion that Krist has intended third-party 

beneficiary status and in transferring his case on the basis 

that the forum selection clause applied to him, we must

next consider whether this error was a “clear and 

indisputable abuse of discretion or . . . error of law.”

Howmedica, 867 F.3d at 401. We do not find Judge Davis’ 

error here so clear as to meet that standard. Judge Davis 

was correct that the photographers were identified in each 

invoice. And while we disagree with his conclusion that 

the invoices rendered Krist a direct beneficiary, the result, 

as it pertains to this conclusion, cannot be said to 
32

“approach[] the magnitude of an unauthorized exercise of 

judicial power.” Commc’n Workers of Am., 932 F.2d at

208. Even if we were to conclude that this error did meet 

that standard, we retain discretion over whether to grant 

the writ. Id. We discern no basis for exercising that 

discretion.

Many photographers have sought to invoke the 

terms of the Corbis–McGraw-Hill agreements in order to 

pursue breach of contract claims against McGraw-Hill.

While arguments raised in other cases do not bind us, we 

do consider the larger jurisprudential landscape in the 

context of mandamus. We acknowledge the existence of a 

sharp split in the decisions of judges in the Eastern District 

of Pennsylvania and within the District of New Jersey on 

the question of the applicability of the forum selection 

clause at issue here. Some of those decisions have 

concluded that photographers were intended beneficiaries 

of the Corbis–McGraw-Hill agreements, or that the 

photographers were so closely related to those agreements 

that enforcement of the forum selection clause was 

justified.7 Having reviewed the analysis in the other cases

 

7 Steinmetz v. Scholastic Inc., No. 16-cv-3583, 2017 

WL 4082681, at *2 (D.N.J. Sept. 15, 2017) (Hayden, J.) 

(considering Corbis to be plaintiff’s agent and applying 

closely related parties doctrine); Yamashita v. Scholastic 

Inc., No. 16-cv-3839, 2016 WL 6897781, at *2 (D.N.J. 

Nov. 21, 2016) (Chesler, J.) (holding that Corbis was 
33

 

plaintiff’s agent and that the action was one “regarding” 

the contract because it “arises from a dispute over whether 

Scholastic used Plaintiff’s photographs outside the terms 

of the licenses obtained under the [PPAs]”); Keller v. 

McGraw-Hill Glob. Educ. Holding, LLC, No. 16-cv-1778, 

2016 WL 4035613, at *6 (E.D. Pa. July 28, 2016) 

(Slomsky, J.) (“Plaintiff is a non-signatory third-party who 

is bound by the forum-selection clause because of his 

underlying contractual relationship with [Corbis].”). But 

see Krist v. Pearson Educ., Inc., 263 F. Supp. 3d 509, 511–

14 (E.D. Pa. 2017) (McHugh, J.) (finding that Corbis was 

not plaintiff’s agent and that plaintiff cannot be bound by 

Corbis FSC where not signatory to contract and not 

seeking to invoke contract; holding that closely related 

doctrine applies only where non-signatory defendants had 

involvement with contract or sought to enforce it); Krist v. 

Scholastic, Inc., 253 F. Supp. 3d 804, 809–11 (E.D. Pa. 

2017) (Rufe, J.) (holding that the Corbis FSC does not 

govern the copyright claim, and holding that the FSC does 

not bind plaintiff as non-party because he is not the 

intended beneficiary, and declining to apply closely 

related doctrine); Steinmetz v. McGraw-Hill Glob. Educ. 

Holdings, LLC, 220 F. Supp. 3d 596, 604 (E.D. Pa. 2016) 

(Robreno, J.) (holding that Corbis FSC’s application to 

“[a]ny dispute regarding this agreement” does not broadly 

apply to “any type of intellectual property dispute that 

conceivably could arise between Defendants and the 
34

and the arguments raised in those actions, we cannot 

conclude that the error committed by Judge Davis is clear 

and indisputable. 

Even so, we proceed to analyze other issues

addressed by the two District Court judges, because a clear 

and indisputable error on any determination necessary for 

transfer might warrant mandamus.

B. Was enforcement foreseeable?

Foreseeability is a prerequisite to applying the 

closely related parties doctrine. That is, before binding a 

non-signatory as a closely related party, we require a 

finding that enforcement of the clause by or against the 

non-signatory would be foreseeable. See Howmedica, 867 

F.3d at 407 n.13; Magi XXI, Inc. v. Stato della Citta del 

Vaticano, 714 F.3d 714, 723 (2d Cir. 2013) Lipcon v. 

Underwriters at Lloyd’s, London, 148 F.3d 1285, 1299 

(11th Cir. 1998); Hugel v. Corp. of Lloyd’s, 999 F.2d 206, 

209 (7th Cir. 1993). Likewise, we require a foreseeability 

finding when enforcing a forum selection clause against 

 

owner of any intellectual property that Defendants might 

license from Corbis”); Eastcott v. McGraw-Hill Global 

Educ. Holdings, LLC, No. 16-cv-904, 2016 WL 3959076, 

at *1 (E.D. Pa. July 22, 2016) (McHugh, J.) (rejecting 

closely related argument on grounds that only “19 of the 

274 total claims or less than 7% to be exact” implicate the 

agreement with the Corbis FSC).
35

an intended beneficiary. In Coastal Steel, we held that the 

plaintiff could not avoid a forum selection clause on 

account of its third-party beneficiary status. 709 F.2d at 

203. We reasoned:

Coastal chose to do business with Farmer 

Norton, an English firm, knowing that 

Farmer Norton would be acquiring 

components from other English 

manufacturers. Thus it was perfectly 

foreseeable that Coastal would be a thirdparty beneficiary of an English contract, and 

that such a contract would provide for 

litigation in an English court.

Id. As the quoted language indicates, Coastal Steel

recognized not only that it was foreseeable that the nonsignatory would be a third-party beneficiary, or that the 

contract would contain a forum selection clause, but also 

that the forum selection clause would provide for a 

specific forum convenient to the signatory. 

Judge Davis recognized the foreseeability 

requirement in Krist. He first concluded that it was 

foreseeable to Krist that Corbis would contract with 

licensees, and that Krist may be a third-party beneficiary 

to those agreements. Krist App’x 377. This much is 

obvious: Krist entered into an agreement with Corbis for 

the very purpose of having Corbis sub-license his 

photographs. And because Krist was owed monetary 
36

compensation under his agreement with Corbis, it was 

foreseeable that he may have been deemed an intended 

beneficiary of those agreements. It is also foreseeable that 

Corbis’ contracts with licensees would contain forum 

selection clauses. After all, the photographers’ own 

contracts with Corbis contained such clauses, and as the 

District Court reasoned, they are quite common. Id. (citing 

secondary source material). But the District Court made 

no finding that Krist could have foreseen that those clauses 

would specify New York, New York as a forum. While the 

District Court noted that Corbis’ standard Terms and 

Conditions were published on Corbis’ webpage, the 

District Court made no finding that Krist had ever visited 

the webpage or had seen an explicit reference to those 

terms and conditions. The fact that it was possible for Krist 

to access the Terms and Conditions on the website does 

not establish that it was foreseeable that he would be 

subject to those terms as a third-party beneficiary. See 

James v. Glob. TelLink Corp, 852 F.3d 262, 267–68 (3d 

Cir. 2017) (publication of terms of use on website is not

alone sufficient to bind). As the photographers argue, there 

is “no evidence these Terms & Conditions or the FSC 

therein were ever ‘reasonably communicated’ or 

otherwise made known to Kashi. Although Kashi received 

royalty statements from Corbis that provided limited 

information, Kashi did not receive copies of the Invoices 

that Corbis issued to MHE.” Kashi Resp. 7. 
37

A foreseeability finding in the context of forum 

selection clauses must have some evidentiary basis, other 

than pure speculation, that the party sought to be bound 

had an awareness of the clause, its contents, and that it 

might be defensively invoked. Krist argues for a higher 

bar. He argues that foreseeability requires a finding that 

the clause and its contents had been “reasonably 

communicated” to the party against whom enforcement is 

sought. Krist Pet’r 19 (citing Phillips v. Audio Active Ltd., 

494 F.3d 378, 383 (2d Cir. 2007)). But our case law, 

notably Coastal Steel, did not set such a high bar, and we 

decline to raise that bar today. What Coastal Steel does 

require is that the actual forum be foreseeable, and that 

there be some evidentiary basis for such a finding.

In light of this standard, we conclude that Judge 

Davis’ foreseeability finding was insufficient. The online 

Terms and Conditions cannot suffice, and Judge Davis 

made no finding as to the foreseeability of a specific 

forum. Yet we cannot say, on the record before us, that this

error was so clear as to warrant mandamus. Indeed, there 

was other evidence in the record on which Judge Davis 

could have relied to bolster his foreseeability finding:

namely the exemplar representation agreements. Krist has 

not refuted—and Kashi has conceded—that the 

photographers’ representation agreements with Corbis

contained a forum selection clause that specified New 

York, New York. Oral Arg. 30:38–31:15, 48:21–49:08; 

Kashi Resp. 39–40 (conceding that Kashi’s representation 
38

agreement contained a New York forum selection clause).

At the very least, these clauses provide evidentiary support 

for a finding that enforcement of a New York, New York 

forum selection clause was foreseeable—the 

photographers were aware that Corbis preferred that 

forum. Because he had this evidence before him, Judge 

Davis’ finding was not clear and indisputable error. 

C. Do the copyright claims fall within the scope of the 

Corbis FSC?

Judge Davis held that the copyright claims depend 

upon the licenses because unauthorized use is part of the 

plaintiff’s prima facie case in the copyright context. The 

Second Circuit employs this approach when only the 

scope of the license is at issue. Bourne v. Walt Disney Co., 

68 F.3d 621, 631 (2d Cir. 1995). In other words, where the 

plaintiff concedes the existence of a license, the burden 

may fall on the plaintiff, in the first instance, to 

demonstrate that the scope was exceeded. We have yet to 

consider that doctrine and have no cause to consider it 

today. Indeed, the plaintiffs doggedly refuse to concede 

the existence of licenses, even when pressed at oral 

argument. Oral Arg. 27:36–29:30. But that refusal to 

concede is not the reason we decline to adopt the Bourne 

rule. Rather, we recognize that on the facts of the cases 

before us, we could not hold plaintiffs to such a prima 

facie burden. 
39

The licenses obtained by McGraw-Hill were not 

granted by the photographers directly but by Corbis as a 

sub-licensor. And the royalty statements received by the 

photographers lacked specific detail as to the scope of each 

license granted. Kashi Resp. 7, 37 (citing Kashi Supp. 

App’x 1). As such, it stands to reason that the 

photographers may not be aware of each license issued, or 

the scope of each license. Because they were not 

themselves directly privy to those licenses, we cannot 

expect them to plead unauthorized use as part of a prima 

facie case. As the Seventh Circuit recognized when 

considering this very issue, “ʻproving a negative is a 

challenge in any context,’ and if there is evidence of a 

license, it is most likely to be in the possession of the 

purported licensee.” Muhammad-Ali v. Final Call, Inc., 

832 F.3d 755, 761 (7th Cir. 2016) (quoting Vieth v. 

Jubelirer, 541 U.S. 267, 311 (2004)).

The Seventh Circuit took the opportunity in 

Muhammad-Ali to clarify the elements of a prima facie

claim for copyright infringement. We do the same here.

Both McGraw-Hill’s arguments and Judge Davis’ opinion 

cite to Dun & Bradstreet Software Servs., Inc. v. Grace 

Consulting, Inc., 307 F.3d 197 (3d Cir. 2002), for the 

elements of a copyright infringement claim. According to 

that precedential opinion: “To establish a claim of 

copyright infringement, a plaintiff must establish: (1) 

ownership of a valid copyright; and (2) unauthorized 

copying of original elements of the plaintiff’s work.” Id. 
40

at 206. As an initial matter, that statement appears to be 

dictum—it is a proposition not essential to the 

determination of the case. Further, Dun & Bradstreet’s 

inclusion of “unauthorized” as part of the second element 

appears to be an error. The precedent Dun & Bradstreet 

cites as support of the listed elements, Whelan Assocs., 

Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d 

Cir. 1986), and Gates Rubber Co. v. Bando Chem. Indus., 

Ltd., 9 F.3d 823, 831 (10th Cir. 1993), do not include the 

term “unauthorized” in their listing of the second element.

Nor has the Supreme Court held that unauthorized 

copying is the second element of a copyright claim. Feist 

Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361

(1991) (“To establish infringement, two elements must be 

proven: (1) ownership of a valid copyright, and (2) 

copying of constituent elements of the work that are 

original.”). We can only conclude that use of the word

“unauthorized” was erroneous. Because Whelan predated 

Dun & Bradstreet, its explication of the elements controls. 

The traditions of this Court dictate that a panel decision 

may not overrule the holding of a previous panel. Reilly v. 

City of Harrisburg, 858 F.3d 173, 177 (3d Cir. 2017), as 

amended (June 26, 2017) (citing Internal Operating 

Procedures of the Third Circuit Court of Appeals § 9.1); 

United States v. Monaco, 23 F.3d 793, 803 (3d Cir. 1994)

(same). 

Having determined that the license is not part of the 

photographers’ prima facie case, we turn to the text of the 
41

forum selection clause. We interpret a forum selection

clause in accordance with its plain meaning. See Reading 

Health Sys. v. Bear Stearns & Co., 900 F.3d 87, 99 (3d 

Cir. 2018) (citing Illinois Nat. Ins. Co. v. Wyndham 

Worldwide Operations, Inc., 653 F.3d 225, 231 (3d Cir. 

2011); Great Am. Ins. Co. v. Norwin Sch. Dist., 544 F.3d 

229, 243 (3d Cir. 2008); Restatement (Second) of

Contracts § 202 (1981)). The clause in the Corbis 

agreements reads:

Any dispute regarding this Agreement shall 

be governed by the laws of the State of New 

York, and by Titles 15, 17 and 35 of the 

U.S.C., as amended, and the parties agree to 

accept the exclusive jurisdiction of the state 

and federal courts located in New York, New 

York, regardless of conflicts of laws.

MHE App’x 284 (2014 PPA). Of immediate significance 

is use of the noun “dispute,” which is used as opposed to, 

for example, “claim.” Under Wyeth, this Court construes 

the word “dispute” as being broader than “claim.” 119 

F.3d at 1074. The Seventh Circuit has held likewise, 

explaining that “the forum selection clause does not apply 

just to the litigation of claims that arise out of, concern, 

etc., the contract; it applies to the litigation of disputes that 

arise out of, concern, etc., the contract.” Abbott Labs. v. 

Takeda Pharm. Co., 476 F.3d 421, 424 (7th Cir. 2007).

The Second Circuit disagrees. In Phillips, 494 F.3d at 391,

the forum selection clause applied not just to “claims” but 
42

to “proceedings.” But the Court held that “reference to 

proceedings” did not require it “to take into consideration 

the source of rights or duties asserted on defense.” Id.

Unlike the Second Circuit, we hold that the word 

“disputes” allows the contract to be implicated by way of 

an affirmative defense.

But we must also consider the second word: the 

preposition “regarding.” In Wyeth the forum selection

clause applied to “any dispute arising under or out of or in 

relation to this Agreement.” 119 F.3d at 1072. The Court 

noted that “arising in relation to” is broader than “arising 

under.” Id. at 1075. It explained:

The ordinary meaning of the phrase “arising 

in relation to” is simple. To say that a dispute 

“arise[s] . . . in relation to” the 1990 

Agreement is to say that the origin of the 

dispute is related to that agreement, i.e., that 

the origin of the dispute has some “logical or 

causal connection” to the 1990 Agreement. 

Webster’s Third New International 

Dictionary, 1916 (1971).

Wyeth, 119 F.3d at 1074. See also Flanagan v. PrudentialBache Sec., Inc., 495 N.E. 2d 345, 350 (N.Y. 1986) 

(holding that “respecting,” which is defined as “ʻwith 

regard or relation to: regarding, concerning,’” has a 

broader connotation than “arising out of”) (quoting 

Webster’s Third New International Dictionary, at 1934).
43

Second, the preposition “regarding” is used rather 

than the phrase “arising under,” “arising out of,” or 

“arising in relation to.” The ordinary meaning of 

“regarding” mirrors the latter, or “in relation to.”

“Regarding” is defined as “[i]n reference or relation to; 

about, concerning.” Oxford English Dictionary (“OED”), 

Third Edition, December 2009; i.e., “with respect to; 

concerning.” Merriam-Webster’s Collegiate Dictionary, 

11th ed. The preposition “concerning” is likewise defined 

as “[a]s regards; as relates to.” OED, Third Edition, 

September 2015.

“Regarding” may thus be equated with “relates to,” 

a phrase Wyeth defines as having some “logical or causal 

connection.” 119 F.3d at 1074. Here, the disputes have a 

logical or causal connection to the agreements, at least for 

the majority of the claims. As Krist’s Complaint suggests, 

McGraw-Hill obtained access to the photographs through 

its licensure agreements with Corbis. Krist App’x 6 (Krist 

Complaint ¶ 10). Those licenses were for limited use, yet 

McGraw-Hill “print[ed] or distribut[ed] more copies of the 

[p]hotographs than authorized.” Id. at 7 (Krist Complaint 

¶¶ 11–13). Kashi’s Complaint makes the same allegations.

MHE App’x 164–65 (Kashi Complaint ¶¶ 9–12). These 

allegations establish a logical and causal connection 

between the Corbis–McGraw-Hill agreements and the 

copyright infringement actions. It may be said that the 

“dispute” here is whether McGraw-Hill violated the 
44

plaintiffs’ copyrights by exceeding the scope of its 

licenses.

As an additional point, the forum selection clause 

specifies the federal copyright statutes as a source of law: 

“Any dispute regarding this Agreement shall be governed 

by the laws of the State of New York, and by Titles 15, 17 

and 35 of the U.S.C., as amended . . . .” MHE App’x 284 

(emphasis added). The reference to copyright law suggests 

that the clause was intended to encompass such disputes.

See, e.g., Lefkowitz v. John Wiley & Sons, Inc., No. 13-cv1662, 2013 WL 4079923, at *1 (E.D. Pa. Aug. 13, 2013) 

(Baylson, J.) (“[T]he forum selection clause specifically 

envisions that ‘any dispute regarding this Agreement’ 

includes copyright infringement claims because the clause 

expressly states that disputes shall be governed by, inter 

alia, Title 17 of the United States Code (i.e., the title of the 

Code that governs copyright claims).”).

Based on this Court’s precedent, which the parties 

cite for interpretation of the clause, we hold that the 

photographers’ copyright actions are “disputes regarding” 

the Corbis–McGraw-Hill agreements because the face of 

the complaints contemplate that licenses existed, and the 

language of the forum selection clause is broad enough to 

encompass actions in which the agreements are raised as 

an affirmative defense. See MHE App’x 164 (Complaint 

¶¶ 8–9) (reference to invoices issued by Corbis); Krist 

App’x 6 (Complaint ¶ 10) (same).
45

We also note our case law which suggests that to 

bind non-signatories to a forum selection clause, the claim 

must arise in relation to the contract. DuPont, 269 F.3d at 

197–98. Given the unique nature of copyright claims, we 

recognize that we should not permit a party to avoid a 

forum selection clause simply by pleading non-contract 

claims. See Coastal Steel, 709 F.2d at 203 (“[W]here the 

relationship between the parties is contractual, the 

pleading of alternative non-contractual theories of liability 

should not prevent enforcement of such a bargain.”);

Crescent Int’l, Inc. v. Avatar Cmtys., Inc., 857 F.2d 943, 

944–45 (3d Cir. 1988) (same). So where the copyright 

holder is an intended third-party beneficiary or closely 

related party and the natural language of the forum 

selection clause is broad enough to cover a copyright 

claim, we would ordinarily bind the non-signatory.

In conclusion, Judge Davis reached the correct

result about the scope of the forum selection clause, but 

did so, in part, for the wrong reason. Because of the 

mistaken placement of a word in Dun & Bradstreet, Judge 

Davis was incorrect in reasoning that a copyright claim

“depends on” the agreements by virtue of the pleading 

standard. However, Judge Davis was correct in concluding 

that the text of the forum selection clause is broad enough 

to encompass actions pleaded only under the Copyright 

Act. That conclusion would be consequential if the 

photographers were signatories to the Corbis forum 

selection clause, were intended third-party beneficiaries, 
46

or were closely related parties. But because the 

photographers are none of those things, the scope of the 

forum selection clause is of little consequence.8Indeed, 

the only consequence for our purposes is to determine that 

Judge Davis’ conclusion regarding the scope of the forum 

selection clause is not a basis for granting mandamus 

relief.

D. The reach of Atlantic Marine

The final doctrinal question raised by these actions 

is distinct. Apart from his determinations regarding the 

applicability of the forum selection clause, did Judge 

Davis err in conducting his § 1404(a) transfer analysis?

9

Krist argues that Judge Davis so erred by applying Atlantic 

Marine and that our Howmedica decision required him to 

consider Krist’s choice of forum and private interests. We 

 

8

Judge Beetlestone incorrectly concluded that 

Kashi’s copyright claims fell outside the scope of the 

forum selection clause. MHE App’x 4–6. But Judge 

Beetlestone’s ultimate conclusion—that the clause was 

not enforceable against Kashi—was correct.

9

Judge Beetlestone undertook a traditional § 1404(a) 

analysis and found that transfer was not justified. MHE 

App’x 4–6. McGraw-Hill does not argue that the judge’s

traditional § 1404(a) analysis was faulty, and thus we need 

not evaluate it.
47

conclude that no such error occurred and Howmedica did 

not so require.

As discussed in Section II.C., Atlantic Marine 

modified the traditional § 1404(a) balancing test in 

scenarios where a forum selection clause binds all parties. 

The Court collapsed the § 1404(a) analysis into 

consideration of one factor: the public interest. 571 U.S. at 

64.

The parties in Atlantic Marine were all signatories 

to the agreement and thus bound by the forum selection 

clause. We now consider whether Atlantic Marine applies 

to a case in which one party is a contracting party and the 

other, though not a signatory, is nevertheless bound by a 

forum selection clause as an intended third-party 

beneficiary or closely related party.

Krist argues that our Howmedica decision controls 

the result. In Howmedica, we addressed a situation in 

which signatory plaintiffs sought to bind non-signatory 

defendants to a forum selection clause as closely related 

parties, but we rejected their contention that the closely 

related parties doctrine applied. See 867 F.3d at 407 

& n.13. Having determined those non-signatories were not 

bound by the clause, we concluded they were properly 

treated as “non-contracting parties” and we announced an 

analytical framework to determine how forum selection 

clauses affect the § 1404(a) transfer analysis where the 

case involves both “contracting parties,” i.e., those bound 
48

by a forum selection clause and thus subject to the 

presumption of Atlantic Marine, and “non-contracting 

parties,” i.e., those not bound by a forum selection clause 

and whose private interests therefore must still be 

considered. See 867 F.3d at 403–07. In that situation, we 

held, a court could not take an “all or nothing” approach 

in applying Atlantic Marine. Id. at 406. If some parties are 

not bound by a forum selection clause, a court must 

consider those parties’ private interests under 

Howmedica’s analytical framework. Id. at 403–04.

Kashi and Krist read Howmedica as adopting a 

“bright-line” rule: Atlantic Marine applies only to 

signatory parties. Kashi Resp. 30; Krist Pet’r 12. Under 

their reading, even if they are bound by the forum selection 

clause, their private interests must be considered on a § 

1404(a) motion. In other words, they ask us to hold that 

the Atlantic Marine modification applies only when all 

parties signed the contract—it does not apply when nonsignatories, regardless of their status as third-party 

beneficiaries or as closely related parties, are present in the 

action. Howmedica did not go so far, and we reject their 

request.

This argument is most easily analyzed through use 

of a counterfactual. Suppose a non-signatory intended 

third-party beneficiary brings a breach of contract claim, 

as would be his right under traditional principles of 

contract law. Despite his non-signatory status, he is fully 

aware of the contract and its terms. Indeed, he expressly 
49

bases his claim on the terms of the contract. The contract

also contains a forum selection clause, and his breach of 

contract claim falls within the scope of that clause. As 

such, there is no question that the non-signatory is bound 

by the forum selection clause. Despite being bound by that 

clause, the plaintiff files his breach of contract suit in a 

jurisdiction other than the one specified in the clause. The 

signatory defendant invokes the forum selection clause 

and moves to transfer venue under § 1404(a). In this case, 

must the district court consider the non-signatory 

plaintiff’s choice of forum and private interests? Or does 

the court consider only the public interest factors, per 

Atlantic Marine? 

The latter must be true. Such an eyes-wide-open 

plaintiff—one who gets the benefit of the parties’ bargain 

and has the corresponding right to sue—would be bound 

by the terms of the forum selection clause just as the 

signatories would be. 

The facts before us are different, but the underlying 

principle is the same. The Atlantic Marine modification 

applies to the § 1404(a) transfer inquiry if: (1) a nonsignatory is bound by a forum selection clause under 

traditional contract law principles; (2) enforcement of the 

clause against him was foreseeable; and (3) his claim falls 

within the scope of the clause. Indeed, Atlantic Marine 

recognized that foreseeability offsets “[w]hatever 

‘inconvenience’ [a party] would suffer by being forced to 

litigate in the contractual forum.” 571 U.S. at 64 (quoting 
50

The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17–18

(1972)).10

IV. Conclusion

These petitions raise complicated issues concerning 

forum selection clauses. We conclude that the District 

Court in Kashi reached the correct result in declining to 

transfer the action. We conclude that the District Court in 

Krist erred in transferring the action, but the error was not 

clear and indisputable. As such, we decline to issue a writ

of mandamus in either case.

 

10 McGraw-Hill does not argue that transfer would be 

warranted in the Krist action under a traditional § 1404(a) 

analysis, and we see no reason why the balancing 

conducted by Judge Beetlestone in Kashi would produce a 

different result in the Krist action. In fact, given Krist’s 

place of residence, the private interest factors in Krist

slightly favor the Philadelphia forum. 
1

ROTH, Circuit Judge, Dissenting in Part and Concurring in 

Part

Kashi and Krist came to court with exactly the same 

claim against McGraw-Hill; their license agreements with 

Corbis were identical; they both defended against identical 

McGraw-Hill motions to transfer; and they even had the same 

lawyer. Yet, the District Courts came to opposite 

conclusions—the Kashi court denied McGraw-Hill’s transfer 

motion and the Krist court granted it. Now, on petitions for 

mandamus, the two cases have been consolidated. Even 

though the majority finds that the Krist court erred in 

transferring the case, it fails to correct the error and leaves 

opposing District Court decisions untouched. The majority 

prioritizes adherence to the strict standards of mandamus relief 

over judicial consistency and equal treatment of the parties. I 

do not. 

The majority concludes that even though the District 

Court in Krist should not have granted McGraw-Hill’s motion 

to transfer, mandamus is not warranted. Specifically, in Krist’s 

case, it holds that the judge’s error in transferring the action 

was not “a clear and indisputable abuse of discretion or . . . 

error of law,” and even if it was, there is no basis for exercising

our discretion to grant the writ.1 It emphasizes the incredibly 

high bar petitioners must meet in order to receive mandamus 

relief and tells us that even if petitioners do meet the bar, the 

court can still deny mandamus.2 However, the majority fails 

 

1 Majority at 31-34. 

2 Majority at 13-15; 31-34. 
2

to grapple with the fact that its decision permits the

incongruous and unfair treatment of essentially 

indistinguishable litigants. Krist is left in the dust of this 

decision, correct on the law but without his remedy.

Leaving undisturbed contradictory decisions in these 

two identical and consolidated cases promotes judicial 

inconsistency. Litigants—and the public at large—expect

courts to come to the same conclusion when presented with the 

same claims and facts. Allowing opposite results in two 

consolidated cases with the same legal issues and the same 

factual background—even when done in the name of 

adherence to the strict standards of mandamus relief—erodes

the integrity of and the public trust in the courts.3 Indeed, in 

other contexts, federal courts have corrected contradictory, yet 

factually analogous, lower court decisions in the name of 

judicial consistency.4

 

3We have already recognized the importance of judicial 

consistency to the integrity of courts in the context of judicial 

estoppel. This doctrine “generally prevents a party from 

prevailing in one phase of a case on an argument and then 

relying on a contradictory argument to prevail in another 

phase.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) 

(quoting Pegram v. Herdrich, 530 U.S. 211, 227, n.8 (2000)).

Because this rule prevents the “risk of inconsistent court 

determinations” it “protect[s] the essential integrity of the 

judicial process.” New Hampshire v. Maine, 532 U.S. 742, 751

(2001).

4 See, e.g., Diamond Shamrock Expl. Co. v. Hodel, 853 F.2d 

1159, 1168 (5th Cir. 1988) (reversing decision of one district 

court to align with decision of another in a consolidated appeal 

“in the interest[] of consistency”); Dallas Ceramic Co. v. 
3

In addition to promoting inconsistency, the majority’s 

decision violates basic principles of fairness. While Kashi 

pursues his case in the forum he originally chose, Krist is 

forced to litigate in a forum of the defendant’s choosing. 

Litigants should come to our courts knowing that the merits of 

their claims and defenses will determine the outcome of their

cases—not the judge randomly selected to be on the case. 

Instead, the majority tells Krist that his judge made the wrong 

decision but that he cannot have the same remedy as Kashi.

This result is unfair.

Therefore, I propose a modified mandamus standard 

when considering whether to grant a writ in consolidated 

petitions. First, we should consider whether denying 

mandamus would create an inconsistent result or unequal 

application of law. If so, the petitioner need not show “a clear

abuse of discretion or clear error of law.”5 Rather, it is 

sufficient for the petitioner to show simply reversible error. In 

other words, the first factor in the three-factor test for granting 

 

United States, 598 F.2d 1382, 1391 (5th Cir. 1979) (reversing 

district court decision to align with factually and legally 

analogous Tax Court decision because our “sense of judicial 

consistency dictates that these two cases should come out the 

same”); In re Cole, 114 B.R. 278, 279, 286 (N.D. Okla. 1990)

(correcting conflicting rulings by two bankruptcy court judges 

where the “fact pattern in all of the[] proceedings [was]

virtually identical”). 

5 Majority at 13 (quoting United States v. Wright, 776 F.3d 134, 

146 (3d Cir. 2015)) (emphasis added).
4

mandamus relief 6 would not be such a “high bar”

7

in a 

consolidated petition like this one. If we were to apply this 

modified standard here, because “the District Court in Krist 

erred in its conclusion . . . and in transferring his case,”8the 

Krist court committed reversible error. Krist met the modified 

standard for factor one. We would then grant Krist’s writ.9

As the majority reminds us, relief via a writ of 

mandamus is extraordinary and judges should “proceed both 

carefully and courageously in exercising their discretion” to 

grant a writ.10 There are good reasons why mandamus relief 

is rare and difficult to achieve. Such relief disrupts a case’s 

“flow through the judicial system” and “is contrary to the 

common law policy of avoiding piecemeal appellate review of 

cases.”11 If every potentially erroneous decision could be 

resolved on a writ of mandamus, our appellate courts would be 

overwhelmed and litigants would await final resolution of their 

cases far longer than they already do.

12

 

 

6 The three factors are set forth on page 13 of the majority 

opinion and include: “(1) a clear abuse of discretion or clear 

error of law; (2) a lack of an alternate avenue for adequate 

relief; and (3) a likelihood of irreparable injury.”

7 Majority at 14. 

8 Majority at 31. 

9 The other two factors are met here. See Majority at 14

(“[T]ransfer orders as a class meet the second and third 

requirements.”).

10 Majority at 15 (quoting Lusardi v. Lechner, 855 F.2d 1062, 

1070 (3d Cir. 1988)). 

11 Lusardi, 855 F.2d at 1069.

12 See In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 290 

(5th Cir. 2015) (“[M]andamus must not become a means by 
5

However, these concerns are minimized here due to the 

limited application of this proposed modification. The lower 

standard for factor one of the mandamus test would only apply 

to (1) consolidated petitions for mandamus; (2) where the 

district courts had come to opposite decisions on substantially 

similar facts; and (3) where denying mandamus would create

incompatible results and/or an unequal application of law. 

Such cases are extremely rare. This narrow exception makes 

room in our mandamus jurisprudence for judicial consistency 

and equal administration of justice without risking significant

disruptions in litigation or increases in burdensome piecemeal 

litigation.

For these reasons, I respectfully dissent from the 

majority’s decision to deny mandamus in Krist, and concur

with the ruling that mandamus is not warranted in Kashi.

 

which the court corrects all potentially erroneous orders.”) 

(citing In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th 

Cir. 2008)); see also Majority at 14-15.