       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 06, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-547
                          Lower Tribunal No. 14-5578
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  Inspired Capital, LLC, and Erica Gary, derivatively on behalf of
                   Inspired Food Solutions, LLC,
                                   Appellants,

                                        vs.

   Condé Nast, an unincorporated division of Advance Magazine
    Publishers, Inc., and FremantleMedia North America, Inc.,
                                    Appellees.



     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Peter R. Lopez, Judge.

     Wallen Hernandez Lee Martinez, LLP, and Jermaine A. Lee and Eric
Hernandez, for appellants.

     Adams and Reese LLP, and Eric J. Partlow and Donald A. Mihokovich
(Tampa), for appellee Condé Nast.

      Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., and Jose G.
Sepulveda; Glaser Weil, LLP, and Sean Riley (Los Angeles, CA), for appellee
FremantleMedia North America, Inc.
Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.

      ROTHENBERG, C.J.

      The plaintiffs below, Inspired Capital, LLC, and Erica Gary, derivatively on

behalf of Inspired Food Solutions, LLC, appeal from a non-final order dismissing

their first amended complaint against defendants Condé Nast and FremantleMedia

North America, Inc. (“Fremantle”) based on a forum selection clause contained in

a License Agreement. Because the forum selection clause is mandatory and the

claims asserted against Condé Nast and Fremantle are “relating to” the License

Agreement, we affirm.

      Condé Nast, as licensor, Inspired Foods Solutions, LLC, as licensee, and

Fremantle, as Condé Nast’s authorized representative, executed a Licensing

Agreement.    The parties agree that the following forum selection clause in

subsection 12.4 of the License Agreement is mandatory:

      Any action or proceeding between Licensor and Licensee relating to
      this Agreement, whether pertaining to the interpretation or
      enforceability hereof or others, may only be brought in the courts of
      the State of New York, county of New York or the federal courts
      located therein, and both parties consent to the exclusive jurisdiction
      of such courts.

(emphasis added). The sole issue before this Court is whether the claims the

plaintiffs asserted against Condé Nast and Fremantle in the first amended

complaint—aiding and abetting (Count 8), civil conspiracy (Count 13), and


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misappropriation of trade secrets (Count 16)—are “relating to” the License

Agreement and therefore within the scope of the forum selection clause.

      In Jackson v. Shakespeare Foundation, Inc., 108 So. 3d 587 (Fla. 2013), the

Florida Supreme Court addressed the scope of an arbitration provision based on

whether the provision utilizes the term “arising out of” or “relating to”:

      Two basic types of arbitration provisions have emerged: (1)
      provisions with language and application narrow in scope, and (2)
      provisions with language and application broad in scope. An
      arbitration provision that is considered to be narrow in scope typically
      requires arbitration for claims or controversies “arising out of” the
      subject contract. This type of provision limits arbitration to those
      claims that have a direct relationship to a contract’s terms and
      provisions. In contrast, an arbitration provision that is considered to
      be broad in scope typically requires arbitration for claims or
      controversies “arising out of or relating to” the subject contract. The
      addition of the words “relating to” broadens the scope of an
      arbitration provision to include those claims that are described as
      having a “significant relationship” to the contract—regardless of
      whether the claim is founded in tort or contract law.

Id. at 593 (citations omitted).     The Court also explained that “a significant

relationship is described to exist between an arbitration provision and a claim if

there is a ‘contractual nexus’ between the claim and the contract.” Id. at 594.

Further, “[a] contractual nexus exists between a claim and a contract if the claim

presents circumstances in which the resolution of the disputed issue requires either

reference to, or construction of, a portion of the contract.” Id.

      Although Jackson addressed the scope of an arbitration provision, in

Fairbanks Contracting & Remodeling, Inc. v. Hopcroft, 169 So. 3d 282 (Fla. 4th


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DCA 2015), the Fourth District Court of Appeal applied the principles set forth in

Jackson to a forum selection clause. The Fourth District recognized that the phrase

any claim “relating to” the contract is broader in scope than the phrase any claim

“arising out of” the contract. Fairbanks Contracting, 169 So. 3d at 283. Based on

its review of the claim asserted in the complaint, the Fourth District held that the

forum selection clause was enforceable because the claim had “a significant

relationship and clear nexus with the contract entered into between these parties.”

Id. at 283.

      In the instant case, the forum selection clause utilized the term “relating to,”

and therefore, the scope of the forum selection clause is broad. Id. at 283. Our

review of the claims asserted in the first amended complaint against Condé Nast

and Fremantle clearly “relat[e] to” the License Agreement. The general allegations

in the first amended complaint specifically refer to the License Agreement and

these allegations are incorporated into the claims asserted against Condé Nast and

Fremantle.    The resolution of the plaintiffs’ claims requires reference to the

License Agreement. Thus, the claims asserted against Condé Nast and Fremantle

have “a significant relationship and clear nexus” to the License Agreement.

Accordingly, we affirm the order granting the motion to dismiss without prejudice

to the plaintiffs’ right to file those claims in the courts of the state of New York,

county of New York, or the federal courts located therein.1


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      Affirmed.




1 The plaintiffs’ argument that that the forum selection clause is not applicable
because the License Agreement was terminated lacks merit. Subsection 12.13 of
the License Agreement provides that subsection 12.4, which contains the forum
selection clause, “shall survive termination or expiration of this Agreement.”

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