Full Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE GI DI RUSHMORE PARENT L.P., Plaintiff, v. C.A. No. 2026-0505-JTL DONALD E. STOOPS, JR., Defendant. OPINION DENYING PRELIMINARY INJUNCTION Date Submitted: May 22, 2026 Date Decided: June 10, 2026 Travis S. Hunter, Gabriela Z. Monasterio, RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; Jeremy Ben Merkelson, Patrick T. Wilson, DAVIS WRIGHT TREMAINE LLP, Washington, D.C.; Attorneys for Plaintiff. James D. Taylor, Jr., Allison M. Neff, SAUL EWING LLP, Wilmington, Delaware; John A. Basinger, SAUL EWING LLP, New York, New York; Attorneys for Defendant. LASTER, V.C. GI DI Rushmore Parent L.P. (“Holdco”) is a holding company controlled by a private equity firm. Holdco owns 100% of the equity of non-party Clarity Telecom LLC, which does business as Bluepeak. Donald E. Stoops, Jr. has spent his life living and working in Oklahoma. Bluepeak recruited Stoops to become its Vice President for New Market Activity. Stoops resigned from his former employer and started working at Bluepeak based on a term sheet that contemplated an equity award. Six weeks later, Bluepeak presented Stoops with an Incentive Unit Grant Agreement (the “Unit Agreement”). The terms were non-negotiable. He had two options: sign the Unit Agreement or relinquish the equity that induced him to join Bluepeak. It was a take-it-or-leave-it deal. The Unit Agreement contains restrictive covenants that would appear customarily in an employment agreement. They include a competition restriction, a personnel-solicitation restriction, a disparagement restriction, and a confidentiality restriction. The covenants applied during Stoops’ employment and for two years after.1 The Unit Agreement specifies that Delaware law governs its terms. The Unit Agreement does not contain a Delaware forum selection provision, but it incorporates by reference Holdco’s limited partnership agreement (the “Partnership Agreement”). Holdco insists that the equity award constituted the consideration that 1 supports the covenants, yet the Unit Agreement allows Holdco to cancel the equity award if Stoops violates the covenants, at which point the covenants continue to apply. The Unit Agreement thus sets up a double-downside situation for Stoops in which he can lose the equity that justified the covenants even while the covenants continue to constrain him. That agreement contains a Delaware forum selection provision (the “Delaware Forum Clause”). Stoops never saw the Partnership Agreement. When presented with the Unit Agreement, Stoops was not given a copy of the Partnership Agreement. Nor was he told where he could find it. No one told him he could request it. He nevertheless asked for it several times and was refused. He did not see the Partnership Agreement until this litigation. It turns out that Holdco treats the Partnership Agreement as confidential such that only three C-suite executives have seen it. Unlike Stoops, at least one of those C-suite executives had actual bargaining power. He used it to secure an employment agreement that contracted around the Delaware Forum Clause, the Delaware choice- of-law provision, and the standard-form restrictive covenants. The Incentive Units are a form of incentive compensation. Oklahoma has a significant interest in how businesses operating within its borders compensate Oklahomans. Oklahoma likewise has a significant interest in the extent to which businesses can impose restrictive covenants on Oklahomans. To protect its citizens, Oklahoma has enacted legislation regulating restrictive covenants and restricting the effectiveness of choice-of-law and choice-of-forum provisions. Stoops resigned from Bluepeak and took a position with a competitor. Relying on the Delaware Forum Clause in the never-before-revealed Partnership Agreement, Holdco sued Stoops in Delaware. Stoops has no ties to Delaware except through the Unit Agreement’s incorporation by reference of the never-before-revealed 2 Partnership Agreement and its Delaware Forum Clause. If the Delaware Forum Clause cannot support this court’s exercise of personal jurisdiction over Stoops, this action cannot proceed. Holdco sought a preliminary injunction barring Stoops from working for his new employer pending trial. That application is denied because Holdco has not established a reasonable likelihood that this court can exercise personal jurisdiction over Stoops. Oklahoma law, not Delaware law, controls the employment-related features of the Unit Agreement. Oklahoma law, not Delaware law, controls the extent to which the Delaware Forum Clause can bind Stoops for purposes of enforcing the employment-related features of the Unit Agreement. Under Oklahoma law, the Delaware Forum Clause is invalid. Assuming Delaware law applies, the court will not enforce the Delaware Forum Clause on the facts presented. Parties can freely agree to incorporate documents and other agreements by reference, and those incorporated materials can contain a forum selection clause. But a party in Stoops’ position must receive the incorporated materials, understand their contents, or be told clearly where they can be found. That is particularly true for a contract of adhesion like the Unit Agreement. Holdco is trying to enforce a secret forum selection clause. That is unreasonable. Regardless of whether Oklahoma law or Delaware law applies, the Delaware Forum Clause cannot support the exercise of personal jurisdiction over Stoops. Holdco’s application is denied on that basis. 3 I. FACTUAL BACKGROUND The facts are drawn from the record developed in connection with Holdco’s application for a preliminary injunction.2 What follows are the facts as they are likely to be found after trial, based on the current record. The court must attempt to predict what the factual findings eventually will be. The findings of fact after trial may be different. A. Bluepeak and Holdco Bluepeak is a Delaware company headquartered in Colorado that provides fiber-optic services to residential and commercial customers in South Dakota, Minnesota, North Dakota, Wyoming, Texas, and Oklahoma. Bluepeak does not conduct business in Delaware. Holdco claims to be “a single-purpose Delaware limited partnership formed to hold and administer Bluepeak’s equity incentive plan.”3 That is not true. Holdco is a holding company, controlled by a general partner affiliated with the private equity firm GI Partners.4 Although the record on this issue is sparse, GI Partners appears to have acquired a controlling interest in Bluepeak and used Holdco as one of the entities in the ownership structure. Holdco is not a single-purpose vehicle for an equity compensation plan. It is the holding company through which GI Partners 2 The parties helpfully numbered their exhibits in a single sequence. Citations in the form “Ex. __” refer to those exhibits. Citations in the form “[Name] Dep. __” refer to deposition transcripts. 3 Dkt. 52 (“OB”) at 6. 4 The General Partner is GI DI Rushmore GP LLC. See Ex. 9 (“PA”). 4 controls Bluepeak. Holdco’s internal affairs are governed by the Partnership Agreement. The Partnership Agreement weighs in at 123 pages, without schedules or exhibits. It is easily recognizable as the constitutive document that a private equity firm uses to manage an investment in a portfolio company. Holdco’s capital structure is complex, consisting of six classes of units5 and a lengthy list of entity holders, including both GI Partners affiliates and otherwise.6 Consistent with its effort to portray Holdco as a single-purpose vehicle for an equity compensation plan, Bluepeak argues that the court should view Stoops as a partner with a significant equity stake in Holdco.7 That is not true either. There appear to be two different groups of Bluepeak employees who hold two different classes of equity in Holdco. C-suite executives—including CEO Richard Fish, COO Carl Hagan, and Chief Market Expansion Officer Mike Harry—hold Class A units, which is the same class that a GI Partners’ affiliate holds.8 Other employees receive “Incentive Units.”9 5 See PA § 3.03. 6 See PA, Schedule I. For example, entities affiliated with the private equity firm Ares Capital also appear to have invested in Bluepeak. Id. 7 See OB at 8–9. 8 See PA, Schedule I. 9 See PA § 3.04. 5 The Incentive Units are a junior class of equity that comprises a sliver of Holdco’s economics. The Incentive Units only pay out on a liquidity event for GI Partners,10 and they sit at the bottom of a multi-tier waterfall.11 The Incentive Units do not carry any voting rights at the Holdco level, are non-transferable, and are subject to forfeiture under a variety of situations.12 The holder of Incentive Units is not a partner in any meaningful sense. The holder of Incentive Units lacks even the more limited rights associated with limited partner status. B. Bluepeak Recruits Stoops. Stoops has more than thirty years’ experience in the telecom and fiber industry. Before joining Bluepeak, Stoops worked in virtually every aspect of the industry, including network buildouts, product development, sales, government affairs, and trading. He had constructed and applied pricing models, generated projections, and built Black-Scholes and Monte Carlo models. 13 Fish, Bluepeak’s CEO, recruited Stoops from another fiber company in 2021. Stoops earned more than $400,000 in salary and bonus with his prior employer. Fish offered Stoops $200,000 and a discretionary bonus of up to 35%. He told Stoops that all of Bluepeak’s executives took a haircut on cash compensation in exchange for the 10 Ex. 6 at 3 (“The MIP payout is linked to a liquidation event for GI Partners.”). 11 PA §§ 5.01, 9.03. 12 PA §§ 4.01, 7.02; Ex. 14 (“UA”) §§ 3.01–.02. 13 In his resume, Stoops described himself as a “[t]op-tier Senior Executive with 30 years of progressively [more] responsible leadership experience.” Ex. 3. Holdco understandably embraces that description, but it is puffery. 6 potential equity upside. Fish indicated that he expected Bluepeak to be sold within three years and that a sale would produce generational wealth for Bluepeak’s executives. Bluepeak did not offer Stoops a C-suite role. Bluepeak offered Stoops the position of Vice President – Market Development. Stoops’ main function would be government relations, including liaising with city and county officials. That is an important job and a relatively senior one, but not one that carried the ability to bargain over the terms of his equity grant. Stoops could and did negotiate over the number of units he would receive, but not the terms on which he would receive them. After the initial discussions, Bluepeak emailed Stoops a term sheet that spelled out the key terms of his employment. It identifies Stoops’ base salary, annual incentive compensation, and benefits eligibility. It stated that Stoops would be “granted 761,969 Class B-1 Incentive Units and 952,461 Class B-2 Incentive Units of the Management Incentive Pool . . . representing 2.0%” of the Incentive Units.14 It explained the Incentive Units’ tax treatment and the equity distribution waterfall. The term sheet did not contain a choice-of-law provision or forum selection provision. Stoops believed the units could have a value of between $3-4 million and $8 million.15 He accepted Bluepeak’s offer based on the term sheet and resigned from his prior job. He started work at Bluepeak on June 1, 2021. 14 See Ex. 48. 15 Stoops Dep. 72, 265–266; Ex. 5. 7 In his new role, Stoops managed six employees. He was one of twenty-six Bluepeak employees at the Vice President level or higher. He reported to Harry, then Bluepeak’s Chief Business Development Officer and current Chief Market Expansion Officer. Harry reports to Fish, Bluepeak’s CEO. Stoops was instrumental to Bluepeak’s entry into Oklahoma, just one of the states in which Bluepeak operates. C. The Unit Agreement More than six weeks after Stoops started work, Bluepeak emailed him the Unit Agreement on July 13, 2021.16 The Unit Agreement is a standard form agreement provided to all employees who receive Incentive Units. Holdco’s counsel drafted it to protect Holdco’s interests. Stoops could have had a lawyer review it, but Holdco was not going to make any changes. Stoops executed the Unit Agreement within minutes of receiving it. He noticed that the Unit Agreement listed him as “Desi Stoops” rather than using his formal name, and he asked whether that needed to be corrected. Bluepeak sent him a revised version on July 19, 2021, and Stoops signed and returned it the following day.17 The parties to the Unit Agreement are Stoops, defined as the “Participant,” and Holdco. The Unit Agreement makes clear that the Incentive Units are a form of compensation tied to the Participant’s employment. Consistent with that reality, the Unit Agreement recites that the Incentive Units are being issued “for the provision 16 See Ex. 10. 17 See Ex. 13. 8 of services to or for the benefit of the Partnership by the Participant.” 18 The Unit Agreement allows the Participant to declare the value of the Incentive Units “as compensation for services” to the extent their value exceeds the price paid, namely zero.19 The Holdco-prepared election form identifies “[t]he fair market value” of the Incentive Units at the time of issuance as zero.20 The recitals to the Unit Agreement state that its purpose is “to impose certain vesting conditions with respect to the Incentive Units.”21 The recitals do not mention restrictive covenants. The Unit Agreement contains a vesting schedule providing that as long as Stoops remains employed at Bluepeak, then one-sixth of the Incentive Units vest after one year. After that, another one-twenty-fourth vest every succeeding quarter, so that vesting is complete after six years. 22 Vesting accelerates on a Change in Control, a term defined in the Partnership Agreement.23 The Unit Agreement provides that a Participant who stops working for Bluepeak for any reason forfeits any unvested units.24 A Participant forfeits all units, 18 UA, recital B. 19 Id. Ex. B. 20 Id. Ex. B, ¶ 5. 21 Id. recital C. 22 Id. § 2.3(a)(i). 23 Id. § 2.3(a)(ii). 24 Id. § 3.1. 9 including vested units, if the Participant “breaches any non-competition, non- solicitation and/or confidentiality obligations.”25 Titled “Restrictive Covenants,” Article VI of the Unit Agreement imposes a series of restrictive covenants on the Participant that typically would appear in an employment agreement. There are four principal restrictive covenants (the “Covenants”): • A restriction prohibiting the Participant from competing with Bluepeak (the “Competition Restriction”); • A restriction prohibiting the Participant from soliciting Bluepeak’s employees, agents, and independent contractors (the “Personnel-Solicitation Restriction”); • An expansive restriction on the Participant’s use of Bluepeak’s confidential information, broadly defined (the “Confidentiality Restriction”); and • An expansive restriction on the Participant disparaging GI Partners or its affiliates (the “Disparagement Restriction”). The Competition Restriction, Personnel-Solicitation Restriction, and Confidentiality Restriction last “[d]uring the term of the Participant’s employment with the Partnership or one of its Subsidiaries (the ‘Employment Term’) and for a period of twenty-four months thereafter (the ‘Restricted Period’).”26 There is no time limit on 25 Id. § 3.2. The Incentive Units were subject to repurchase on terms set out in the Partnership Agreement. Id. § 3.3; see also PA § 7.07(a). 26 UA § 6.1(a)–(c). 10 the Disparagement Restriction.27 Even if the Participant loses all of the Incentive Units that supported the Covenants, the Covenants continue to apply.28 Although not at issue in this case, Section 6(e) of the Unit Agreement addresses “Inventions.”29 It provides broadly that any inventions or developments the Participant creates during the Employment Term becomes the Holdco’s property. That is another provision that classically appears in an employment agreement. Implicitly recognizing the obvious connection between those provisions and the Participant’s employment, the Unit Agreement provides that if the Participant is a party to an employment agreement containing different restrictive covenants, then those terms apply in lieu of the Covenants.30 The Unit Agreement also takes pains to specify that it does not create any right to remain employed. In a provision titled “No Contract of Employment,” the Unit Agreement states: Neither this Agreement nor any award granted under this Agreement shall confer upon any Person any right of employment or other service or continuance of employment or other service by the Partnership or any of its Subsidiaries or Affiliates. This Agreement does not constitute a contract of employment . . . .31 That provision would not be necessary if the Unit Agreement did not contain provisions so obviously and expressly directed to the Participant’s employment. 27 Id. § 6.1(d). 28 Id. § 7.2. 29 Id. § 6.1(e). 30 Id. § 6.1. 31 Id. § 7.14. 11 The Unit Agreement contains the following provision selecting Delaware law (the “Delaware Law Provision”): This Agreement, and any and all claims arising out of, under, pursuant to, or in any way related to this Agreement, including but not limited to any and all claims (whether sounding in contract or tort) as to this Agreement’s scope, validity, enforcement, interpretation, construction, and effect, shall be governed by the laws of the State of Delaware (without regard to any conflict of laws rule which might result in the application of the laws of any other jurisdiction).32 The Unit Agreement does not contain a provision making courts located in Delaware the exclusive forum for disputes arising out of or related to the agreement. D. The Missing Partnership Agreement The Unit Agreement contains a recitation in which the Participant agrees to having received and reviewed the Partnership Agreement.33 In reality, Bluepeak did not provide a copy of the Partnership Agreement when presenting Stoops with the 32 Id. § 7.12. 33 Id. § 7.7. Other aspects of the Unit Agreement refer to the Partnership Agreement. A recital states that Holdco “is governed by the Amended and Restated Agreement of Limited Partnership [of Holdco] dated as of February 1, 2021 (as the same may be further amended, restated, modified, or otherwise supplemented from time-to-time in accordance with its terms, . . .)” i.e., the Partnership Agreement. Id., recital A. The Unit Agreement provides generally that “[c]apitalized terms not otherwise defined in this Agreement shall have the meaning described to such terms in the Partnership Agreement.” Id. Later, the Unit Agreement listed nine specific terms, each of which had “the meaning ascribed to such term in the Partnership Agreement.” Id. § 5.1. The Unit Agreement’s integration clause incorporates the Partnership Agreement. Id. § 7.6. Another provision states that that “the Incentive Units are subject to the Partnership agreement, the terms and provisions of which are hereby incorporated herein by reference.” Id. § 7.7. It is not possible to understand the terms of the Unit Agreement without a copy of the Partnership Agreement. 12 Unit Agreement, nor did Bluepeak tell Stoops where he could find the Partnership Agreement or that he could request it. Stoops asked for a copy of the Partnership Agreement on multiple occasions.34 He never received a copy and never had the opportunity to understand its contents until Holdco sued him. Holdco treats its Partnership Agreement as confidential, and only a few C- suite executives have seen it. In this litigation, Holdco marked the Partnership Agreement “HIGHLY CONFIDENTIAL.” The Partnership Agreement contains the Delaware Forum Clause. It states: Submission to Jurisdiction. Each of the parties hereto submits to the exclusive jurisdiction of the Chancery Court of the State of Delaware and any state appellate court therefrom within the State of Delaware (or if the Chancery Court of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court sitting in the State of Delaware and any federal appellate court therefrom) in respect of the interpretation and enforcement of the provisions of this Agreement and any related agreement, certificate or other document delivered in connection herewith and by this Agreement waive, and agree not to assert, any defense in any action for the interpretation or enforcement of this Agreement and any related agreement, certificate or other document delivered in connection herewith that they are not subject to such jurisdiction or that such action may not be brought or is not maintainable in such courts or that this Agreement may not be enforced in or by such courts, that the action is brought in an inconvenient forum, or that the venue of the action is improper.35 34 See, e.g., Exs. 53–56. 35 PA § 13.02. 13 The Partnership Agreement does not contain any restrictive covenants. To the contrary, it eliminates fiduciary duties, disclaims any right to business opportunities, and waives any objection to competitive activities by partners.36 E. Stoops Considers Leaving Bluepeak. In 2024, Stoops considered leaving Bluepeak. Three years had passed since he joined the company, and no liquidity event was in sight. Stoops also wanted a less stressful employment situation due to health concerns. Stoops drafted emails to a recruiter37 and prepared a resignation email.38 He talked to a number of potential employers, including Francisco Maella, then-CEO of Dobson Fiber.39 Stoops also met with Everett Dobson, the company’s board chair and namesake. Dobson competes with Bluepeak, and Stoops’ conversations with Dobson reached the point where they signed a joint defense agreement under which Dobson would pay for counsel for Stoops if he left.40 Stoops also spoke with Patricia Martin, a longtime friend who was then CEO of Point Broadband. That company did not compete with Bluepeak. In 2025, Stoops sent his resume to Martin and spoke with her about becoming Point Broadband’s 36 Id. §§ 13.16–.18. 37 Ex. 15. 38 Ex. 16. 39 The company’s full name is Dobson Technologies Inc. It does business as Dobson Fiber. 40 See Stoops Dep. 167; Ex. 4 at 54. 14 head of commercial sales and operations. He met twice with Martin and Nick DiPonzio, her COO. He also met with Point Broadband’s general counsel several times. Stoops was not guarded in his discussions about possible employment, and he said things that create litigable issues under the Confidentiality Restriction and Disparagement Restriction. During a videoconference with Martin and DiPonzio, Stoops shared his Bluepeak laptop screen and showed them a spreadsheet with modeling information. Bluepeak contends that the information was confidential. Stoops contends it was simply modeling calculations that he had long known how to do. Stoops also shared his views on various Oklahoma markets, including what tactics worked and what did not. Bluepeak contends this information was confidential, but it seems like general market impressions that Stoops had developed over the years. In October 2025, Martin asked Stoops what specific companies he could not work for in Oklahoma because of the Covenants. He replied “Dobson.”41 F. Stoops Leaves Bluepeak. In early 2026, Martin became CEO at Dobson. She approached Stoops about joining as COO. Stoops knew that he risked violating the Competition Restriction by taking a job with Dobson. Stoops again was not guarded in his discussions, and he did things that create litigable issues under the Covenants. For example, on March 10, 2026, the same day he interviewed with Martin for the COO position, Stoops accessed several Bluepeak 41 Ex. 4 at 12–13. 15 market expansion documents. The parties disagree about the significance of the information they contain. A week later, he sent Martin screenshots of a Bluepeak senior management team chat. Stoops should not have done that, but the contents of the screenshots do not seem significant. On April 2, 2026, Stoops accepted Martin’s offer. He accessed several Bluepeak market expansion documents on that day and another the day before. During his discussions with Martin, Stoops suggested that some Bluepeak employees might be good hires. He specifically mentioned Billy Parker, a former Bluepeak employee. He also criticized Bluepeak in a conversation with Tamara Ostrander, who was still a Bluepeak employee.42 On April 3, 2026, Stoops resigned from Bluepeak, effective April 17, 2026. On Friday, April 14, 2026, his last day of employment at Bluepeak, Stoops texted Bob Tinkler, his college fraternity brother and the CFO of Manhattan Construction. Stoops told Tinkler he was leaving Bluepeak to become “COO of Dobson.” He suggested Tinkler send him an email on Monday at his Dobson address. 43 On Sunday, April 16, 2026, Stoops represented that he would return all physical copies and delete any digital copies of Bluepeak data within three calendar days.44 Discovery in this litigation has shown that Stoops had a number of Bluepeak 42 Stoops Dep. 222–236; Ex. 20 at 550–51. 43 Ex. 23 at 431–32. 44 See Ex. 29. 16 documents on his devices.45 Stoops’ lawyer has represented that Stoops would have deleted those documents, but this litigation intervened, resulting in a preservation obligation. G. This Litigation On April 20, 2026, Holdco filed this action. On April 29, the court issued a temporary restraining order to preserve the status quo pending a hearing on Holdco’s application for preliminary injunction.46 The TRO allowed Dobson to pay Stoops as an employee, but barred Stoops from working on any competitive projects or using any of Bluepeak’s confidential information. Over the following weeks, the parties engaged in expedited discovery. A preliminary injunction hearing took place on May 22, 2026. II. THE PROCEDURAL STANDARD Holdco seeks a preliminary injunction enjoining Stoops from breaching the Covenants. When seeking a preliminary injunction, a plaintiff must demonstrate a reasonable probability of success on the merits and that some irreparable harm will occur in the absence of the injunction. Furthermore, in evaluating the need for a preliminary injunction, the Court must balance the [moving party’s] need for protection against any harm that can reasonably be expected to befall the [non-moving party] if the injunction is granted.47 45 See, e.g., Exs. 30–42. 46 See Dkt. 24. 47 Mills Acq. Co. v. Macmillan, Inc., 559 A.2d 1261, 1278–79 (Del. 1989) (citations omitted). 17 The court is not required to weigh the elements equally, and a strong showing on one element can compensate for a weaker showing on another.48 “On a motion for a preliminary injunction, the Court considers the question of personal jurisdiction part of the question of reasonable likelihood of success on the merits.”49 If the plaintiff cannot establish a reasonable likelihood that the court can exercise personal jurisdiction over a defendant, then the action likely cannot proceed against that defendant, and the prospect of success on the merits falls short.50 Here, the application fails on this basis. Although there are other hurdles that the application would struggle to clear, the court need not reach them. III. PERSONAL JURISDICTION Holdco contends that it can sue Stoops in Delaware because of the Delaware Forum Clause in the Partnership Agreement. Stoops has no other ties to Delaware, so the Delaware Forum Clause provides the only basis for suing him here. Because 48 Cantor Fitzgerald, L.P. v. Cantor, 724 A.2d 571, 579 (Del. Ch. 1998); see also In re Estate of Wolhar, 2018 WL 721417, at *3 (Del. Ch. Feb. 6, 2018) (explaining that “[s]ome showing is required for each element”). 49 See Next Level Ventures, LLC v. AVID USA Techs. LLC, 2023 WL 3141054, at *19 (Del. Ch. Mar. 16, 2023). 50 NOLU Plastics, Inc., v. Ledingham, 2005 WL 5654418, at *2 (Del. Ch. Dec. 17, 2005) (considering application for preliminary injunction where defendant challenged personal jurisdiction; “There being no personal jurisdiction over Valu Engineering, I must determine if the action against Ledingham has any substantive basis to proceed.”); id. at *3 (“There being no personal jurisdiction over Valu Engineering and there being no subject matter jurisdiction regarding the buy-sell provisions of the Operating Agreement, Nolu cannot demonstrate a reasonable likelihood of success on the merits—a prerequisite to the Court’s granting a preliminary injunction.”). 18 the Delaware Forum Clause is either invalid or unenforceable, this court cannot exercise personal jurisdiction over Stoops. Holdco’s application for a preliminary injunction must be denied. “Generally, a plaintiff does not have the burden to plead in its complaint facts establishing a court’s personal jurisdiction over [a] defendant.”51 But when a defendant challenges personal jurisdiction, the plaintiff must show a basis for its existence.52 A defendant can consent to a court’s exercise of personal jurisdiction. As the Supreme Court of the United States has recognized, “the personal jurisdiction requirement is a waivable right[, and] there are a ‘variety of legal arrangements’ by which a litigant may give ‘express or implied consent to the personal jurisdiction of the court.’”53 One such arrangement is a forum selection clause in a contract: “Where the parties to the forum selection clause have consented freely and knowingly to the 51 Benerofe v. Cha, 1996 WL 535405, at *3 (Del. Ch. Sept. 12, 1996). 52 Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007). 53 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985) (citations omitted); accord Genuine Parts Co. v. Cepec, 137 A.3d 123, 130 (Del. 2016); Nat’l Indus. Gp. (Hldg.) v. Carlyle Inv. Mgmt. L.L.C., 67 A.3d 373, 381 (Del. 2013); see Sternberg v. O’Neil, 550 A.2d 1105, 1109 n.4 (Del. 1988) (“A party may submit to a given court’s jurisdiction by contractual consent.”), abrogated on other grounds by Genuine Parts, 137 A.3d at 123; see also Ins. Corp. of Ir., Ltd. v. Compagnie de Bauxites de Guinee, 456 U.S. 694, 703 (1982) (“Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived.”); Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 316 (1965) (“[P]arties to a contract may agree in advance to submit to the jurisdiction of a given court . . . .”); Petrowski v. Hawkeye-Sec. Ins. Co., 350 U.S. 495, 495–96 (1956) (holding that stipulation to personal jurisdiction in particular forum is valid waiver of individual right). 19 court’s exercise of jurisdiction, the clause is sufficient to confer personal jurisdiction on a court.”54 There are two impediments to Holdco’s reliance on the Delaware Forum Clause. First, the Delaware Forum Clause is invalid because it conflicts with controlling Oklahoma law. Second, assuming Delaware law applies, the facts of the case call for not enforcing the Delaware Forum Clause. A. Invalidity Under Oklahoma Law Stoops contends that the Delaware Forum Clause conflicts with an Oklahoma statute that invalidates contractual provisions that limit access to Oklahoma courts (the “Oklahoma Access Statute”). It states: Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual 54 Carlyle, 67 A.3d at 381; accord Burger King, 471 U.S. at 472 n.14 (“Where such forum selection provisions have been obtained through ‘freely negotiated’ agreements and are not ‘unreasonable and unjust,’ their enforcement does not offend due process.” (citation omitted)); Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209, 1228 (Del. 2018) (“Where a party commits to the jurisdiction of a particular court or forum by contract, such as through a forum selection clause, a ‘minimum contacts’ analysis is not required as it should clearly anticipate being required to litigate in that forum.” (footnote omitted)); Genuine Parts, 137 A.3d at 148 (“[A] party to a non- adhesion contract can subject itself to personal jurisdiction via a forum selection clause.”); see R. Franklin Balotti & Jesse A. Finkelstein, Delaware Law of Corporations and Business Organizations § 13.4[A] (3d ed. 2019) (“Consent to personal jurisdiction is considered a waiver of any objection on due process grounds and an analysis under minimum contacts is unnecessary.” (internal quotation marks omitted)); see also Charles Alan Wright et al., Federal Practice & Procedure § 1067.3 (4th ed.), Westlaw (database updated Apr. 2026) (“[P]ersonal jurisdiction can be based on the defendant’s consent to have the case adjudicated in the forum, or the defendant’s waiver of the personal jurisdiction defense. Conduct that has been held to constitute consent or a constructive waiver often includes . . . entering into an agreement with a forum selection clause . . . .” (footnotes omitted)). 20 legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void. 55 As someone who lives and works in Oklahoma, Stoops ordinarily could litigate over his right to work for Dobson in an Oklahoma court. The Delaware Forum Clause is a “stipulation . . . in a contract” that limits Stoops’ access to the Oklahoma courts. Because of that stipulation, Stoops faces litigation in Delaware. Stoops concludes that under the Oklahoma Access Statute, the Delaware Forum Clause is void. Holdco responds that Oklahoma law does not apply because of the Delaware Law Provision. Holdco also argues that even if the Oklahoma Access Statute did apply, it would not invalidate the Delaware Forum Clause. Neither of Holdco’s arguments prevails. Oklahoma law governs—at a minimum for purposes of an action to enforce the Covenants. The Oklahoma Access Statute therefore applies. That statute renders the Delaware Forum Clause invalid. The Delaware Forum Clause cannot support this court’s exercise of personal jurisdiction over Stoops. 1. The Choice-Of-Law Analysis Because of the potential applicability of the Oklahoma Access Statute, the validity of the Delaware Forum Clauses turns initially on choice of law. Delaware follows the Restatement (Second) of Conflict of Laws when determining what law governs a contract.56 The Restatement provides that if the parties to a contract have 55 15 Okla. Stat. § 15-216. 56 Certain Underwriters at Lloyds, Condon v. Chemtura Corp., 160 A.3d 457, 464 (Del. 2017). 21 selected the law of a particular jurisdiction to govern their agreement, then that law will apply unless either (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.57 Here, the Delaware Law Provision passes muster under the first test but fails under the second. a. Delaware Has A Substantial Relationship To The Parties Or The Transaction. The first step in evaluating a contractual choice-of-law provision is to determine whether the contract selects the law of a state with “no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice.”58 The Unit Agreement selects Delaware law, which has a sufficient relationship to the parties and the transaction to be a viable selection. Commentary in the Restatement explains that “[w]hen the state of the chosen law has some substantial relationship to the parties or the contract,” then the parties have a reasonable basis for their choice of law.59 The commentary observes that a 57 Restatement (Second) of Conflict of Laws § 187 (1971) [hereinafter Restatement]. 58 Id. § 187(a). 59 Id. cmt. f. 22 substantial relationship exists “when [the chosen] state is . . . where one of the parties is domiciled.”60 Holdco is a Delaware limited partnership, making Delaware its domicile. That connection provides a reasonable basis for selecting Delaware law.61 In addition, a Delaware statute constrains the inquiry. When a contract governs a transaction involving $100,000 or more and states that it “shall be governed by or construed under the laws of this State, without regard to principles of conflict of laws,” then that provision standing alone “shall conclusively be presumed to be a significant, material and reasonable relationship with this State and shall be enforced whether or not there are other relationships with this State.”62 The Delaware Law Provision alone therefore establishes a significant, material, and reasonable relationship with Delaware that provides a reasonable basis for selecting Delaware law. b. Oklahoma Is The Def