Lawyers like to play the field. We like to keep our options open. We like to respond to straightforward questions about our plans by listing a series of things we might do. We are, in a word, difficult.
But, as any veteran of the dating wars can tell you (not me! I got out early), playing the field can have a real downside.
That was the lesson of VMware LLC v. Siemens AG, C.A. No. 25-353-RGA-LDH (D. Del. Feb. 10, 2026). VMware asserted claims of copyright infringement. The defendants moved to dismiss on forum non conveniens arguing that a license agreement between the parties contained a forum selection clause that required claims "arising out of" the agreement to be brought in Germany.
VMware countered that the claims for infringement did not arise out of the license agreement and could thus be brought in beautiful Delaware.
The main Third Circuit case on this forum selection clause issue is In re McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d 48 (3d Cir. 2018), which both parties cited extensively. That case held that the clause at issue there was "broad enough to encompass actions in which the agreements are raised as an affirmative defense."
The aprties generally disputed how applicable the language in the McGraw clause was to the one here, but a real sticking point for the court was the fact that the defendants had not actually raised the license as an affirmative defense:
But McGraw-Hill does not compel dismissal where, as here, despite affording Defendants multiple opportunities to clearly and unequivocally state that they will raise the MSLA as an affirmative defense to VMware's allegations of copyright infringement, Defendants declined to do so.
For example, Defendants could have maintained that the MSLA operates as an affirmative defense in their reply to VMware's answering brief, particularly in light of VMware's argument that McGraw-Hill is inapplicable because "Defendants have not shown that the MSLA gives them an affirmative defense." But instead of rebutting VMware's contention, Defendants took the position that they did not need to do so, doubling-down on their view that VMware's claims alone bring the dispute within the MSLA. In another example, I asked Defendants at argument whether I should deny without prejudice their co-pending Rule 12 motions to permit them to answer and plead the MSLA as an affirmative defense to resolve in their favor any lingering doubt over the MSLA's applicability under McGraw-Hill.=While Defendants advised that they would plead that they are "licensed," they did not invoke the MSLA specifically. And when I asked the parties for supplemental briefing on how an affirmative defense must be raised under McGraw-Hill,5 Defendants wrote that, "McGraw-Hill confirms the forum selection clause of the MSLA can be invoked without an affirmative defense."
Id. at 13-15 (internal citations omitted).
In denying the motion on these grounds, the court noted the difficulty in assessing the issue on a motion to dismiss, when a defendant has not yet had a chance to plead affirmative defenses:
The mechanism by which an affirmative defense must "raised" to the Court post-McGrawHill seems to be an unanswered question. On this point, I asked the parties to submit supplemental letter briefing on whether, under McGraw-Hill, "an affirmative defense needs to be pied or merely asserted or in a briefing or ... represented to the court [by counsel] that they intend to [so] plead." Because Defendants have not indicated that they intend to raise the MSLA as an affirmative defense, but rather say that they need not do so, I do not reach this question.
Id. at 14 n.5
So we must wait for another day for the Court to resolve this unusually thorny issue.
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