### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 20554

In re: LLOYD’S REGISTER NORTH AMERICA, INCORPORATED , Petitioner

.

Petition for a Writ of Mandamus to

the United States District Court for the S outhern District of Texas

Before SMITH , ELROD , and HIGGINSON , Circuit Judges

. PER CURIAM :

Lloyd’s Register North America , Inc. ( “L RNA”) , was the classification soci ety responsible for certifying a ship that Irving Shipbuilding, Inc. (“Irv

ing”) , was build ing for Pearl Seas Cruises, LLC (“Pearl Seas”)

. Pearl Seas was dissatis fied with the ship and engaged in several years of arbitration and liti

ga tion with Irving. After those proceedings had concluded, Pearl Seas sued L RNA under various tort theories re gard ing L RNA ’s allegedly inadequate per

formanc e in certifying the ship and its alleged misdeeds during arbitration. L RNA moved to dismiss on the ground of forum non conveniens (“FNC”) , claiming that a forum

- selection clause in the Lloyd’s Register Rules and United States Court of Appeals Fifth Circuit 

### FILED February 18, 2015 Lyle W. Cayce Clerk Case: 14-20554 Document: 00512939258 Page: 1 Date Filed: 02/18/2015No. 14

- 20554 Regulations for the Classification of Ship s (the “ LR Rules”) and in the contract between LRNA and Irving required Pearl Seas to bring the claims in England. The district court denied the motion to dismiss without written or oral explana

tion. LRNA petitions for a writ of mandamus to order the co urt to vacate its denial and dis miss for FNC

. Because the district court clearly abused its dis

cre tion and reached a patently erroneous result, and because LRNA has no way effectively to vindicate its rights without a writ of manda mus, we grant the petition

.

I. T he following facts are taken from Pearl Seas’ First Amended Complaint unless otherwise noted

. Pearl Seas and LRNA communicated in 2006 about LRNA ’s potentially provid ing classification services for the vessels Pearl Seas would be operat ing. Th o se classification services would require LRNA to cer

t ify that the ship complied with certain standards, including the require m ents of the ship’s flag state (the Marshall Islands) and the classification society’s own rules. Pearl Seas agreed tha t LRNA would be the classification society for its ships. Later in 2006, Pearl Seas entered into a contract ( the “Shipbuilding Con

tract”) with Irving under which Irving would build a ship for Pearl Seas. LRNA then entered into a contract ( the “Cla ssification Contract”) with Irving under which LRNA would survey the ship during construction , ensuring that it com plied with the rules and regula tions specified in the Shipbuilding Contract, including the L R Rules

. As con struc tion continued, disputes arose between Irv ing and Pearl Seas. Irv ing invoked the arbitration clause in the Ship build

ing Contract in 2008, and contentious arbitration continued until Irving and Pearl Seas settled in 2013.

2 Case: 14-20554 Document: 00512939258 Page: 2 Date Filed: 02/18/2015No. 14

- 20554 II. Pearl Seas sued LRNA in the court a quo in late 2013 , alleging fraud, gross negligence, negligent misrepresentation, collusion, aiding and abetting, civil conspiracy, and promissory estoppel in tort. Each cause of action is essen ti ally based o n the theory that LRNA misrepresented the status of the vessel to Pearl Seas and to the arbitrators

. LRNA moved to dismiss for FNC , seeking enforcement of two forum

selection clauses that it said required the action to be brought in England. The first appears in the LR Rules and reads, “Any dispute abou t the Services or the Contract is subject to the exclusive jurisdiction of the English courts and will be governed by English law.” The second appears in the Classi fi cation contract between LRNA and Irving and reads, “Any dispute, claim, or litigation b etween any member of the LR Group and the Client arising from or in connection with the Services provided by LR shall be subject to the exclusive jurisdiction of the English courts and will be governed by English law.” Irving claimed that both of these cl auses prevented Pearl Seas from bringing th is suit in Texas. Pearl Seas maintained that neither of these clauses applied , because Pearl Seas was not a signatory to any agreement containing a forum

- selection clause. The district court held a hearing in which it questioned the parties about numerous matters, including the motion to dismiss for FNC

. A few weeks later, the court issued an order denying several of the motions to dismiss and the plaintiff’s motion for in camera inspection. The court explained its decision in one sentence : “Having considered the motions, sub mis sions, and applicable law, the Court determines that all motions should be denied.”

I I I. To be entitled to the extraordinary remedy of mandamus , LRNA has to satisfy three requirements. First, it must have “no other adequate means to 3 Case: 14-20554 Document: 00512939258 Page: 3 Date Filed: 02/18/2015No. 14

- 20554 attain the relief [it] desires.” Cheney v. U.S. Dist. Court for Dist. of Columbia , 542 U.S. 367, 380 (2004). Second, it has to show a “clear and indisputable” righ t to the writ. Id. at 381. And third, th is court “must be satisfied that the writ is appropriate under the circumstances.” Id.

A. First, LRNA must show that it has no other “adequate means

. ” The writ is not “a substitute for the regular appeals process,” id. at 380

– 81, so LRNA must show that an ordinary appeal i s inadequate. This requirement is satis

f

ied: The usual appeals process does not provide an effective way to review a denial of a motion to dism iss for FNC

. Immediate appellate review of the deci

sion to deny is rarely available, and review after final judgment is ineffective to vindicate a wrong fully denied motion for FNC

. There is no adequate way immediately to review a denial of FNC

. It is

n ot appeal able under the coll ateral

- order doctrine. Van Cauwen berghe v. Biard , 486 U.S. 517, 527 (1988). The defendant has the option of seeking leave for an interlocutory appeal under 28 U.S.C. § 1292(b) , which is available only in limited circumstances . T he question to be certified must be “a controlling question of law as to which there is substantial ground for difference of opin

ion ,” § 1292(b) , and even if it i s, both the dis trict court and the court of appeals have discreti on not to grant the appeal

. See Gonzalez v. Naviera Nep tuno A.A. , 832 F.2d 876, 881 n.5 (5th Cir. 1987). 1 In In re V olkswagen of America Inc. , 545 F.3d 304 (5th Cir. 2008) (en banc) , the court did consider the unavailability of § 1292(b) certification to be rele vant in concluding that a denial of a venue

1 Other courts of appeal s that have considered the question have come to the same
con clusion: Sec tion 1292(b) is not an adequate substitute for mandamus. See In re Roman Catholic Diocese of Albany, New York, Inc. , 745 F.3d 30, 36 (2d Cir. 2014); In re Kellogg Brown & Root, Inc. , 756 F.3d 754, 761 (D.C. Cir. 2014) , cert. denied , 2015 U.S. LEXIS 668 (U.S. Jan. 20, 2015)

. 4 Case: 14-20554 Document: 00512939258 Page: 4 Date Filed: 02/18/2015No. 14

- 20554 transfer order qualified for mandamus relief. See id. at 319. That does not mean, however, that § 1292(b) by itself provides sufficient review when it is available. LRNA is without adequate means to seek review of the denial when it

occurs , but we must also evaluate whether the ordinary appeals process is other wise sufficient

. Th at is a difficult requirement to satisfy. In most cases, relief from a potentially erroneous interlocutory order is available by app eal after final judgme nt. Even though the defendant may be required to engage in a costly and difficult trial and expend considerable resources before the court enters an appe alable judgment, those un recoverable litigation costs are not enough to make thi s means of attaining relief inadequate. See Roche v. Evaporated Milk Ass’n , 319 U.S. 21, 29

– 30 (1943). There has to be a greater burde n, some obsta cle to relief beyond litigation costs that renders obtaining relief not just expen sive but effectively un obtainable

. Under Volks wagen , a defendant’s entitlement to FNC ordinarily cannot adequately be vin di cated through the regular appeals process. In Volkswagen , we were faced wi th a mandamus petition regarding a denial of a motion to transfer venue. We held that the ordinary appeals process would not provide an adequate remedy for the erroneous decision not to order transfer. Two factors that we found convincing in the venue

- transfer context are also present here. First, a defendant is unlikely to be a ble to satisfy an appellate court , after final judgment , that a failure to transfer venue was suffi

ciently prejudicial as to be outcome

- determinative. And second, the very harm sought to be avoided by transferring venue

— “inconvenience to wit nesses, part ies and other”

— will have worked irreversible damage and preju dice by the time a final judgment is issued

. Volkswagen , 454 F.3d at 319. Each of these reasons applies with equal force in the FNC context. On appeal from a final judgment, the improper failu re to transfer venue 5 Case: 14-20554 Document: 00512939258 Page: 5 Date Filed: 02/18/2015No. 14

- 20554 is effectively unreviewable. The defendant would be in the unenviable position of having to show that “it would have won the case had it been tried in a convenient [venue].” Id. at 318

– 19 (quoting In re Nat’l Presto Indus., Inc. , 347 F.3d 662, 663 (7th Cir. 2003)). The same ineffectiveness of review charac ter

izes the denial of a n FNC motion : If it is denied and the case proceeds through trial , the denial will not be considered reversible error “unless the moving party can demonstr ate great prejudice arising from trial in the plaintiff’s chosen forum.” McLennan v. Am. Eurocopter Corp. , 245 F.3d 403, 423

– 24 (5th Cir. 2001). S uch a standard does not provide adequate post

- judgment review. 2 When one considers the instruction in Atlan tic Marine that the private

- interest factors of FNC analysis should automat i cally be weighed in favor of enforcing a forum

- selection clause, 3 it i s especially inappos ite to force parties to rely on post hoc appel late evaluations of whether the clause w as worth bargaining for

. Even if the standard of review were such that a defendant could convince an appeals court that the error justified reversal, we acknowledged in Volks

wagen that the harm done by going throug h trial to final judgment wou ld not be remediable on appeal. U nrecoverable litigation costs do not make review after final judgment inadequate, see Evaporated Milk , 319 U.S. at 29

– 30 , but the dam age inflicted by the refusal to enforce a forum

- selection clause is differ

e nt from the c osts that defendants face as a matter of course after denial of a motion that would otherwise terminate the litigation. The “inconvenience to witnesses, parties and other , ” Volkswagen , 545 F.3d at 319, is one of the factors

2 See Volkswagen , 545 F.3d at 318

– 19 ; see also In re Ford Motor Co. , 591 F.3d 406, 416 (5th Cir. 2009) (on petition for rehearing) (“[I] n these FNC cases, mandamus is appropriate on this prong because, if the issue is argued only on any eventual direct appeal, there is no way to show that the outcome of the case would have been different, and an y inconvenience to the parties ‘ will already have been done by t he time the case is tried and appealed.’”) (quoting Volkswagen , 545 F.3d at 318

– 19).

3 See Atl

. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Texas , 134 S. Ct. 568, 582 (2013)

. 6 Case: 14-20554 Document: 00512939258 Page: 6 Date Filed: 02/18/2015No. 14

- 20554 wei ghed in determining whether a n FNC motion should be granted. A n FNC motion― like the venue

- transfer motion at issue in Volkswagen ―is a motion that asserts those damages are too high to justify try ing the case where it was filed. If the matter must first proceed to final judgment before the denial of that assertion is evaluated, then the damage will always already be done. And “the prejudice suffered can not be put back in the bottle.” Id. There is no reason to distinguish between the normal a ppeals process in the venue

- transfer context, which we found lacking in Volkswagen , and that

same process in the context of FNC

. The first requirement for man da mus relief is therefore satisfied.

B. The second requirement for mandamus relief is that the movant has a “clear and indisputable” ri ght to it. Cheney , 542 U.S. at 381. In recognition of the extraordinary nature of the writ, we require more than showing that the court misinterpreted the law, misapplied it to the facts, or otherwise engaged in an abuse of discretio n. And even reversible error by itself is not enough to obtain m andamus. See Volkswagen , 545 F.3d at 309

– 10. Rather, we limit

man damus to only “clear abuses of discretion that produce patently erroneous results.” Id. at 310

. We therefore must de cid e whether there was a clear abuse of discretion and whether the court reached a patently erroneous result. Because both of these requirements are satisfied, this requ ire ment for man da

mus is met.

1. In distinguishing be tween ordinary and “clear” abuses of discretion , we

a re guided by the principle reiterated in Volkswagen that mandamus must not become a means by which the court corrects all potentially erroneous orders. 7 Case: 14-20554 Document: 00512939258 Page: 7 Date Filed: 02/18/2015No. 14

- 20554 See id. at 309 (citing Will v. United States , 389 U.S. 90, 98 n.6 (1967)). A court commits a clear abuse of discretion , however, when it “clearly exceeds the bounds of judicial discretion.” Id. at 310. T he district court’s failure to provide an explanation of its denial of LRNA’s motion clearly exceede d the bounds of judicial discretion given the facts and circumstances present here

. I t is an abuse of discretion for a district court to grant or deny a motion to dismiss without written or oral explanation 4 or where , in ruling on a motion to dismiss for FNC , it “fails to address and balance the rele vant principles and factors of the doctrine of [FNC] .” Air Crash , 821 F.2d at 1166

− 67. The court provided no written or oral explanation of its deci sion to deny LRNA’ s motion. I n its response to the petiti on for mandamus , Pearl Seas claims that the court did not abuse its discretion because Pearl Seas provided an adequate legal and factual basis for denial in its brief , and the court indicated at a hear

ing that it “had reviewed the briefs and was well awar e of the issues.” This notion is unavailing. A n explanation must be generated by the court, not inferred by the appellate court from the submiss ions of the parties. A contrary
oppo site rule would require us to step into the shoes of the district c ourt and attempt to divine the basis for its decision without guidance, essentially reduc

ing us to the role of replacing the district court’ s discretion with our own in violation of Volkswagen , 545 F.3d at 312. The transcript of the July 17 hearing is likewise insufficient to satisfy the requirement of a written or oral explanation. The court specifically sa id that it has not yet decided the question of the forum

- selection clause and offer ed no conclusion as to the clause’s applicabi lity or the propr i e ty of granting

4 See In re Air Crash Disaster Near New Orleans, La. , 821 F.2d 1147, 1166 (5th Cir. 1987) (en banc), vacated on other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez , 490 U.S. 1032 (1989), reinstated except as to damages by In re Air Crash Disaster Near New Orleans, La. , 883 F.2d 17 (5th Cir. 1989) (e n banc). 8 Case: 14-20554 Document: 00512939258 Page: 8 Date Filed: 02/18/2015No. 14

- 20554 or denying the motion to dismiss. Whether the court’s questions indicated that it understood the law and the briefings is immaterial. It is established that the court’s failure to explain its decision was an abuse of dis cretion, but for mandamus to issue it must be a “clear” abuse. That strict requirement is sat isfied here. Denying the motion to dismiss without explanation and without any visible weighing of the factors of FNC is not just an abuse of discretion. It is a n action that takes the decision entirely outside the scope of judicial discretio n, giving the parties and reviewing courts no way of understanding how the court reached its decision and providing no assur

ance that the decision was the result of conscient ious legal analysis.

2. We now turn to whether the district court reached a “patently erroneous result.” Because the court failed to enforce a valid forum

- selection clause, it did patently err.

a. The first question i s whether the forum

- selection clause applies to this

case. Pearl Seas is not a signatory to the contract between Irving and LRNA, but there are doctrines under which a non

- signatory can be held to the terms of the contract. The doctrine on which the parties focused is the one that applies here: direct

- benefits estoppel. Direct

- benefits estoppel is a doctrine that holds a non

- signatory to a clause in a contract during litigation if the non

- signatory “knowingly exploits the agreement” containing the clause. Bridas S.A.P.I.C. v. Gov’ t of Tu rkmen

is tan , 345 F.3d 347, 361

– 62 (5th Cir. 2003). We have identified two specific
ways in which a non - signatory can be bound under this theory. First, it may be bound “by knowingly seeking and obtaining ‘direct benefits’ from the 9 Case: 14-20554 Document: 00512939258 Page: 9 Date Filed: 02/18/2015No. 14

- 20554
contract .” Noble Dril ling Servs. , Inc. v. Certex USA, Inc. , 620 F.3d 469, 473 (5th Cir. 2010). Second, it may be bound “by seeking to enforce the terms of that contract or asserting claims that must be determined by reference to that contract.” Id. This case satisfies the s econd basis for direct

- benefits estoppel under well

- established authority

. There are two main requirements for direct

- bene fits estoppel under this theory. The party has to have “embraced the contract despite [its] non signatory status but then, during litigation, attempt to repudiate the .

. . clause in the contract.” Hellenic Inv

. Fund, In c
. v . Det Norkse Veritas , 464 F.3d 514, 517

– 18 (5th Cir. 2006). First, the non

- signatory has to have obtained some ben efit under the contract while it was in effect

. Th is court made clear in Hel

lenic that the value a classification society offers to the ultimate purchaser is sufficient to satisfy this requirement. 5 Second , the non - signatory’s suit has to be at least “premis ed in part” on the agreement. Id. at 518 (quoting Bridas , 345 F.3d at 362). Here, as in Hellenic , the complaint is alleging violations of duties that are based in the agreement containing the forum

- selection clause. In Hellenic , we were faced with a factually similar case and concluded that direct

- benefits estoppel required the enforcement of the forum

- selection clause against the non

- signatory plaintiff. There the plaintiff purchased a ship and then, after problems arose with the vessel, sued the cl assification society DNV for negligent misrepresentation. Id. at 515

– 16. DNV’ s Rules contained a forum

- selection clause mandating that a “dispute arising in relation to or as a consequence of these Rules” could be brought only in Norwegian court. Id. at 516

– 17. We held that the negligent

- misrepresentation claim was premised

5 See Hellenic , 464 F.3d at 519 (“ Having stated a claim th at expressly requires that [the classification society’s] performance be for Hellenic's benefit, Hellenic cannot avoid the estoppel implications of its position. ”); cf. E.I. d uPont de Nemou rs & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S. , 269 F.3d 187, 200 n.6 (3d Cir. 2001). 10 Case: 14-20554 Document: 00512939258 Page: 10 Date Filed: 02/18/2015No. 14

- 20554 on a breach of DNV’s duties under its rules and therefore required the ship
pur chaser to embrace the entire contract, including the forum

- selection clause. Pearl Seas has not iden tified a relevant way in which this case is legally distinguishable from Hellenic , and we can find none. In both cases a ship pur

chaser sued a classification society for negligent misrepresentation. In both cases the negligent

- misrepresentation claim re ferenced duties that must be resolved by reference to the classification society’ s r ules. Hellenic settles the question of applying direct

- benefits estoppel here. Pearl Seas maintains that the for um - selection clause in Lloyd’s Rules does not, by its own language, apply to this dispute because it is limited to disputes about “ the Services or the Contract. ” “Contract” is defined as “the

con tract for supply of the Services , ” and the Rules define “Services” as “the services provided by LR.” Because the services in dispute are provided by LRNA and not by the British parent Lloyd’s Register , Pearl Seas argues, the Rules do not encompass disputes arising from services provided by LRNA, which is instead part of the defined term “the LR Gro up.” I t appears , however, that LR sometimes uses “LR” to refer not just to the British classification society but also to its foreign associa tes and subsidiar ies. For example, the same part of the Rules cited by Pearl Seas also refers to “Services” offer ed by the LR Group, which included LRNA. It seems that LRNA’s intention in the language of these rules was not to limit the forum

- selection clause’s applicabil

ity to those lawsuits against LR and not its subsidiaries. The same inter change ability can be seen in the forum

- selection clause in the Classification Con tract. It applies to disputes “between any member of the LR Group and the Client” relating to “the Services provided by LR.” If LRNA were not understood to be included within “LR,” it is not evident why an LRNA contract would have a forum

- selection clause about disputes between the client and a different entity. 11 Case: 14-20554 Document: 00512939258 Page: 11 Date Filed: 02/18/2015No. 14

- 20554 Pearl Seas also argues that, because it is alleging tort claims and not

c on tract claims, direct

- benefits estoppel does not apply

. That argument is also unavailing in light of Hellenic

. Once a p a r ty who has embraced the contract during its life has sued to enforce the contract’s terms or sues on a claim that must be resolved by reference to the contract, it has embraced the contract and cannot disclaim it in litigation. The plaintiff in Hellenic alleged negligent misrepresentation

— a tort claim

— but the court held that the forum

- selection clause applied because the claim was based in part on the contract and still depended on t erms in the contract. See Hellenic , 464 F.3d at 518. A non - signatory plaintiff can avoid a forum

- selection clause by dis claim

ing relia n ce on the contract, see Noble Drilling Serv s
. , 620 F.3d at 474 , but that is not what Pearl Seas is doing here. Instead, it is bringing a claim that this court has already said is based in part on the contract. This selective invoca

tion of contractual duties is exactly the sort of inconsistency the doctrine of direct

- benefits estoppel is designed to prevent

. Pearl Seas also u rges that direct

- benefits estoppel cannot apply because the LR Rules and the contract between Irving and LRNA both disclaim li ability to third parties and e nforceability by third parties. Reciprocity and mutual enforceability are not, however, requirements for di rect

- benefits estop pel, and Pearl Seas cites no authority that supports its position. Indeed, in its brief Pearl Seas at times discusses the doctrine of third

- party beneficiary. As this court has recognized, third

- party beneficiary a nd direct

- benefits estoppel are distinct doctrines. Third

- party

- beneficiary doctrine looks at what the par ties intended when they executed the contract , whereas d irect

- benefits estop pel looks at the actions of the parties after the contract was executed

. See Bridas , 345 F.3d at 362 (quoting E.I. d uPont de Nemours , 269 F. 3d at 200 n.7 ).

12 Case: 14-20554 Document: 00512939258 Page: 12 Date Filed: 02/18/2015No. 14

- 20554 If we interpreted direct

- benefits estoppel to require that the parties demon

strate an intention at the contracting stage to create a third

- party beneficiary, we would e liminate this distinction and collapse the doctrines. Finally, Pearl Seas avers that LRNA cannot rely on direct

- benefits estop

pel because Pearl Seas alleged fraud , and this denies LRNA the benefit of equit able remedies. Pearl Seas has not provided any binding or persuasive authority for the propos ition that a plaintiff can deny a defendant access to equitable remedies just by alleging fraud, especially where the fraud is unre

lated to the applicability of the equitable doctrine. Pearl Seas does not a ss ert that the claimed fraud played any role in bringing Pearl Seas within the scope of the forum

- selection clause or allowed LRNA to hide its inequitable beh avior behind a shield of equity

. We decline to render direct

- benefits estoppel inoper

a tive by sta ting that an allegation of a defen dant ’s wrongdoing is sufficient to deny the application of these clauses.

b. As the foregoing explanation shows, the forum

- selection clause does apply to Pearl Seas’ action against LRNA. This , however, is not the end of our anal y sis of whether LRNA has a “clear and indisputable” right to mandamus. Having established that the forum

- selection clause applies, we must deter mine whether the district court should have dismissed the complaint in accordance with that clause. Given the Supreme Court’s instructions in Atlan tic Marine , the district court erred when it denied the motion to dismiss. Atlantic Marine laid out the process courts must follow in ruling on a n FNC motion that seeks to enforce a valid forum

- selection clause. I nstead of independently weighing the private interests of the parties, the court should “deem the private

- interest factors to weigh entirely in favor of the preselected forum.” Atl

. Marine , 134 S. Ct. at 582. The court should then weigh the public

13 Case: 14-20554 Document: 00512939258 Page: 13 Date Filed: 02/18/2015No. 14

- 20554 interest factors, which include “ the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law .” Id. at 581 n.6 (quoting Piper Aircraft Co. v. Reyno , 454 U.S. 235, 241 n.6 (1981) )

. The plaintiff’s choice of forum will not be given any weight, unlike in the ordinary FNC context. Id. at 581. The Supreme Court allows for the possibility that a court may properly refuse to grant the motion despite a valid forum

- selection clause, but the forum

- selection clause will prevail except in “unusual cases.” Id. at 582. Pearl Seas has not identified any factors that rende r this motion one of those unusual cases. In its response to LRNA’s motion to dismiss, Pearl Seas contends that Texas is the proper forum because the court needs to establish “uniform rules of conduct applicable to corporate entities in Texas,” because some communications originated in Texas, and because LRNA is the defendant in a similar lawsuit in Texas distr ict court. Th o se considerations are not enough to make enforcement of the forum

- selection clause invalid. 6 Pearl Seas raises additional concerns . It theorizes that it would face “extreme juridical disadvantages in an English forum , ” but it does not ident ify what those disadvantages would be. Pearl Seas points out that the Fifth Cir

cuit permits negligent

- misrepresenta tion claims against classification socie

ties, but it does not show that the reme dies in English courts would be lacking. Pearl Seas cla ims that dismissing for FNC would deprive the plaintiff of avail

a ble Texas and U

. S

. remedies and would therefore violate public policy, but Pearl Seas does not identify a remedy that would be unavailable in England. In short, Pearl Seas fails to show wh y this is the exceptional case in which a

6 Addi tion ally, the other LRNA case that was pending in Texas has since been dis

missed for FNC. See Vloeibare Pret Ltd. v. Lloyd’s Register N. Am., Inc

. , No. 4

- 13

- 3653, 2014 WL 3908195 (S.D. Tex. Aug. 8, 2014). 14 Case: 14-20554 Document: 00512939258 Page: 14 Date Filed: 02/18/2015No. 14

- 20554 valid forum

- selection clause should not be enforced. We can think of no reason. In sum, the district court committed a clear abuse of discretion when it stepped outside the scope of judicial power and denied the F NC motion without explanation

. The court , with the best of intentions, then reached a patently erroneous result when it declined to enforce a valid forum

- selection clause. LRNA has a “clear and indisputable” right to the issuance of the writ.

C. The third requirement for the issuance of a writ of mandam us is that it “is appropriate under the circumstances.” Cheney , 542 U.S. at 381. Because the writ is “supervisory in nature,” it is especially appropriate whe re its issu

ance will have significance “b eyond the immediate case.” Volkswagen , 545 F.3d at 319

. There is already an appeal pend ing from another case on t his issue in the Fifth Circuit, and it is possible that more will be forthcoming now that the Supreme Court has strength ened the enforcemen t of forum

- selection clauses in Atlantic Marine

. The petition for writ of mandamus is GRANTED

.

* * * * *

JENNIFER WALKER ELROD, Circuit Judge, dissenting: Mandamus is an “extraordinary remedy” for correcting a “clear abuse of discretion” based on “extraordinary errors” leading to “a patently erroneous result.” In re Volkswagen of Am., Inc. , 545 F.3d 304, 309, 318 (5th Cir. 2008) (en banc) (issu ing the writ because the district court “disregard[ed] the specific precedents of this Court in In re Volkswagen I ”). Here, in its decision to mandamus the district court, the majority opinion creates two new legal rules about the doctrine of direct benef its estoppel, neither of which was compelled 15 Case: 14-20554 Document: 00512939258 Page: 15 Date Filed: 02/18/2015No. 14

- 20554 by our precedent. Because I do not believe the district court patently erred by not anticipating these two new rules, I respectfully dissent. The majority opinion’s first new rule concerns the extent of “dire ct benefit” a non

- signatory must receive. In our most on

- point precedent, Hellenic Inv. Fund, Inc. v. Det Norske Veritas , we applied direct benefits estoppel where the non

- signatory shipowner received the benefit of a class certificate from the classifica tion society. 464 F.3d 514, 516 (5th Cir. 2006). Our “direct benefit” analysis f ocused specifically on the shipowner’s receipt of a class certificate; we did not hold that the classification society’s preliminary inspections, standing alone, conferred a benefit on the shipowner. Rather, it was the issuance of the class certificate that conferred a benefit on the shipowner. Here, Pearl Seas never received a class certificate from LRNA. The majority opinion nonetheless holds that direct benefits estoppel applies because LRNA

“ examin[ed] the ship and communicat[ed] with Pearl Seas in the course of administering [incomplete] classification services.” This is an extension of the holding in Hellenic. The majority opinion’s new rule might be sensible, but an equally sensible rule is one requiring the issuance of a class certificate to trigger direct benefits estoppel, as occurred in Hellenic

. The district court would not have patently erred by choosing the latter rule, even though the majority opinion prefer s the former. The majority opinion’s second new rule concerns the knowledge requirement of the direct benefits estoppel doctrine. As the majority opinion recognizes, direct benefits estoppel only applies if the non

- signatory knows about the existence and the terms of the contract containing the forum

selection clause. See Noble Drilling Servs., Inc. v. Certex USA, Inc. , 620 F.3d 469, 473 (5th Cir. 2010). We have not previously addressed when the non

signatory must acquire this knowledge. Here, Pearl Sea s acquired knowledge of the forum

- selection clause after some of the alleged misrepresentations, but 16 Case: 14-20554 Document: 00512939258 Page: 16 Date Filed: 02/18/2015No. 14

- 20554 before other alleged misrepresentations. The majority opinion decides that direct benefits estoppel applies so long as the non

- signatory gains knowledge

“ before much of the alleged wrong doing and before [the non

- signatory files its lawsuit].” The majority opinion’s new rule seems sensible enough, but a different rule might be equally sensible

— say, a rule that a non

- signatory only can be bound if it learns about the forum

- selection clause before its cause of action accrues (i.e. before the first misrepresentation). The district court would not have patently erred by choosing the latter rule, even though the majority opinion prefers the former. 1 Finally, it is important to note that this is not merely a “time

- and

- place” dispute. If the forum

- selection clause is enforced, Pearl Seas may only bring its claims in England. However, the parties acknowledged at oral argument that no cause of action exists in the English courts for a ship owner to allege negligent misrepresentation against a classification society. Cf. Otto Candies, L.L.C. v. Nippon Kaiji Kyokai Corp. , 346 F.3d 530 (5th Cir. 2003) (permitting negligent

- misrepresentation claims against classificat ion societies). Moreover, the Classification Contract expressly denies the right of any third party, such as Pearl Seas, to enforce the terms of the Classification Contract . Thus, the majority opinion effectively deprives Pearl Seas of any forum for its grievances against LRNA to be heard.

1 Indeed, this likely is the ground on which the district court denied LRNA’s motion to dismiss. I n Petrobras Am erica , Inc. v. Vicinay Cadenas, S.A. , 921 F. Sup p. 2d 685, 694 (S.D. Tex. 2013), the same district court denied a motion to dismiss for forum non conveniens because “there [was] no evidence that [plaintiff] had actual knowledge of the terms of the Purchase Order.” Pearl Seas, at a hearing in the distri ct court, cited Petrobras and argued that it too lacked knowledge of the terms of the forum selection clause until after misrepresentations were made. LRNA did not offer any response to that argument. 17 Case: 14-20554 Document: 00512939258 Page: 17 Date Filed: 02/18/2015No. 14

- 20554 Because I do not believe the district court patently erred, and because the majority opinion deprives Pearl Seas of any forum for its claim, I would deny the petition for writ of mandamus.

18 Case: 14-20554 Document: 00512939258 Page: 18 Date Filed: 02/18/2015