From Friday's decision in Media Matters for America v. X Corp., decided by Ninth Circuit Judges Daniel Bress and Salvador Mendoza, and visiting Sixth Circuit Judge Danny Boggs:
Media Matters published an article claiming that X Corp.'s ("X") content moderation policies permitted the placement of "pro-Nazi" content next to advertisements for major brands. In response, X and its foreign subsidiaries sued Media Matters in three jurisdictions, including Ireland. After litigating for over a year in Ireland, Media Matters brought suit in the Northern District of California, invoking a forum selection clause in X's terms of service. The district court entered an anti-suit injunction that enjoined X from pursuing the Ireland litigation….
The parties dispute whether Media Matters has the right to enforce X's terms of service against X's foreign affiliates. But we conclude that even if Media Matters had such a right, it waived the right to exercise the forum selection clause in X's terms by actively litigating the Ireland case for over a year without raising the forum selection clause in either Ireland or the Northern District of California.
