In Re McGraw-hill Global Educ. Holdings LLC

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
 _______________

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
2
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

3
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

4
were robust. Exemplar agreements in the record1 include
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.
5
 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

6
 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 sub-
licensing 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.
7
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.
8
 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–McGraw-
Hill 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
9
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 actions implicating 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.
10
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,
11
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-cv-
0084 (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.
12
 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
13
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

14
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) (non-
exhaustive 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
15
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 forum-
selection 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.

16
 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

17
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

18
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-

19
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 non-
signatory 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
20
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:
21
 (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

22
(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 McGraw-
Hill’s and Corbis’ intent to benefit the photographers.
We reject McGraw-Hill’s first argument out-of-
hand. The photographers were not entitled to any
compensation as a direct result of the Corbis–McGraw-
Hill 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.

23
 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

24
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 sub-
licensor 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.

25
 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 third-
party 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 [McGraw-
Hill]. 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

26
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).

27
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 anti-
assignment 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 McGraw-
Hill 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

28
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 non-
signatories 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

29
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.
30
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 McGraw-
Hill. 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

31
“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

32
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

33
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).

34
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 third-
party 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 non-
signatory 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

35
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.

36
 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

37
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.

38
 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.

39
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

40
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
41
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. Prudential-
Bache 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).

42
 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

43
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-cv-
1662, 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).

44
 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,

45
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.8 Indeed,
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.
46
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

47
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 non-
signatories, 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
48
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 non-
signatory 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
49
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.
50
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.

1
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

3
We 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.

2
 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).

3
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,”8 the
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

4
 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.

5