Ifc Credit Corp. v. Rieker Shoe Corp.
| Decision Date | 07 December 2007 |
| Docket Number | No. 1-05-1466.,No. 1-05-2250.,No. 1-05-1459.,No. 1-05-1465,No. 1-05-1310.,No. 1-05-1316.,No. 1-05-1490.,No. 1-05-2251.,No. 1-05-2246.,No. 1-05-1491.,No. 1-05-1612.,No. 1-05-3751.,No. 1-05-2248.,No. 1-05-2249.,No. 1-05-2247.,No. 1-05-1489,No. 1-05-2245.,No. 1-05-2252.,1-05-1310.,1-05-1316.,1-05-1459.,1-05-1465,1-05-1466.,1-05-1489,1-05-1490.,1-05-1491.,1-05-1612.,1-05-2245.,1-05-2246.,1-05-2247.,1-05-2248.,1-05-2249.,1-05-2250.,1-05-2251.,1-05-2252.,1-05-3751. |
| Citation | 881 N.E.2d 382,378 Ill. App.3d 77 |
| Parties | IFC CREDIT CORPORATION, Plaintiff-Appellant, v. RIEKER SHOE CORPORATION, Defendant-Appellee. IFC Credit Corporation, Plaintiff-Appellant, v. Thomas Printing, Inc., and Michael Thompson, Defendants-Appellees. IFC Credit Corporation, Plaintiff-Appellant, v. Main Street Mortgage of Central Florida, Inc., and Linda Shoup; Poly Tech Industries, Inc.; W & S Hubble, Inc., and William Hubble; Restaurant Graphics, Inc., and Thomas Stavrakis; Modesto Steel Company, Inc.; and J & W Cycles, Inc., and Nancy Jones, Defendants-Appellees. IFC Credit Corporation, Plaintiff-Appellant, v. Wolcott Burkeholder, d/b/a Productive Solutions, Defendant-Appellee. IFC Credit Corporation, Plaintiff-Appellant, v. Colonial Distributors, Inc.; South Coast Dental Laboratory, Inc., and Richard Hale II; A.M. LaSalle Electric, Inc.; Jeremy Normand, d/b/a State Farm Insurance; Bi-State Industries, Inc., and James Duncan; D & R Packaging, Inc., Gregory Russell and Joseph Russell; Coronet Window Company; and Ree's Contract Service, Inc., Defendants-Appellees. IFC Credit Corporation, Plaintiff-Appellant, v. Terry Streng, d/b/a Mountain Insurance Agency, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Borst, P.C., Chicago, for Appellant IFC Credit Corporation.
Bradley P. Nelson, William Berndt, Schopf & Weiss, LLP, Chicago, for Appellee Rieker Shoe Corporation.
Hal J. Wood, Horwood, Marcus & Berk, Chtd., Chicago, for Appellees Thomas Printing, Inc., Michael Thompson, A.M. LaSalle Electric, Inc., and Jeremy Normand, d/b/a State Farm Insurance.
James D. Helenhouse, Fletcher & Sippel, LLC, Chicago, for Appellees Main Street Mortgage of Central Florida and Linda Shoup.
John S. Graettinger, Jr., Gardiner, Koch and Weisberg, Chicago, for Appellee Poly Tech Industries, Inc.
Michael J. Fleck, Thomas L. Schmid, Law Office of Michael J. Fleck, P.C., Huntley, for Appellees W&S Hubble, Inc., William Hubble, Restaurant Graphics, Inc., Thomas Stavrakis, South Coast Dental Laboratory, Inc., Richard Hale II, J&W Cycles, Inc., and Nancy Jones.
Terry Sullivan, Nancy Nichol, The Sullivan Firm, Ltd., Rolling Meadows, for Appellee Modesto Steel Company, Inc.
Donald S. Nathan, Kubiesa, Spiroff, Gosselar & Acker, P.C., Elmhurst, for Appellee Wolcott Burkeholder, d/b/a Productive Solutions.
Edward S. Margolis, Teller, Levit & Silvertrust, Chicago, for Appellee Colonial Distributors, Inc.
Peter Spingola, Chapman & Spingola, LLP, Chicago, for Appellees Bi-State Industries, Inc., James Duncan, and Ree's Contract Service, Inc.
Norman I. Kurtz, Norman I. Kurtz, Ltd., Mount Prospect, for Appellees D&R Packaging, Inc., Gregory Russell, and Joseph Russell.
Ryan Krueger, Law Office of Ryan G. Krueger, Chicago, for Appellee Coronet Window Company.
James K. Leven, Chicago, for Appellee Terry Streng, d/b/a Mountain Insurance Agency.
Plaintiff IFC Credit Corporation (IFC) appeals from orders of the circuit court that dismissed IFC's breach of contract claims against the numerous defendants due to lack of personal jurisdiction. IFC argues that the circuit court erred in refusing to enforce the forum selection clause in the contracts signed by defendants and assigned to IFC. Defendants argue, inter alia, that the forum selection provision was unreasonable and unenforceable because it permits jurisdiction over defendants in any state in the United States in which IFC or any other third-party assignee of the contract does business. Defendants also argue that the forum selection provision was broad, boilerplate language buried in the contracts and failed to give adequate notice to contracting parties of where they could expect to be required to appear in court. Furthermore, defendants argue that the clause is void because it was procured by fraud. For the reasons that follow, in this consolidated appeal, we conclude that the clause is enforceable under Illinois law and therefore reverse the judgments of the circuit court and remand these cases for further proceedings.
After the parties completed briefing the issues in this appeal, IFC filed a motion to strike, complaining that certain defendants filed appendices with their appellate briefs that contained materials (decisions rendered by various jurisdictions) that were not included in the record on appeal. Specifically, the complained-of materials were: (1) Federal Trade Comm'n v. NorVergence, Inc., No. 04-5414 (D.N.J. August 8, 2005); (2) People v. Nor-Vergence, Inc., No. 2004-CH-655 (Cir. Ct. Sangamon Co., May 6, 2005); (3) IFC Credit Corp. v. Warner Robbins Supply Co., No. 04 C 6093 (N.D.Ill. October 26, 2005); and (4) IFC Credit Corp. v. Magnetic Technologies, Ltd., No. 04-M2-2637 (Cir. Ct. Cook Co., November 8, 2005). IFC's motion to strike these materials was taken with the case.
We have considered IFC's contentions and defendants' responses and hereby deny IFC's motion to strike the materials. Because the unpublished judgments are in the public records of other courts and will aid this court in the efficient disposition of this consolidated appeal, we will take judicial notice of the materials. Metropolitan Life Insurance Co. v. American National Bank & Trust Co., 288 Ill.App.3d 760, 764, 224 Ill.Dec. 511, 682 N.E.2d 72 (1997); Muller v. Zollar, 267 Ill.App.3d 339, 341, 204 Ill.Dec. 959, 642 N.E.2d 860 (1994). We grant defendants' request pursuant to Supreme Court Rule 366(a)(3) (155 Ill.2d R. 366) to supplement the record on appeal with the materials attached in the appendices.
The forum selection clause in question has been the subject of nationwide litigation, including litigation by various states' attorneys general and the Federal Trade Commission (FTC). Briefly summarized, some of the allegations contained in those complaints alleged that, from 2002 to 2004, NorVergence, Inc. (NorVergence), a corporation based in New Jersey, purchased telecommunications services from common carriers and resold those services to small businesses. NorVergence allegedly represented that customers could save 30% on telephone, cellular and Internet services by leasing its Matrix equipment, which was merely a standard router or firewall device that could provide only minimal savings, if any, and was worth a fraction of its cost under the lease. NorVergence allegedly marketed its services as integrated, long-term packages and promised customers they would receive uninterrupted services for the full five-year lease term, but it did not have a sustainable business plan. NorVergence allegedly put customers through a rigorous application process and procured their signatures on a stack of forms. The fine print provisions of the equipment rental agreement purported to render the contracts noncancelable and to require consumers to pay the full amount for the five-year rental term regardless of any equipment failure, misrepresentation, failure to provide services, or dissatisfaction with the equipment for any reason. Despite representations that NorVergence would treat the numerous forms as a unified agreement under which NorVergence would provide services, it immediately sold or assigned the rental agreements to as many as 40 different finance companies.
On October 10, 2003, before defendants signed the contracts at issue here, NorVergence and IFC, a corporation with its principal place of business in Morton Grove, Illinois, entered into a master program agreement that governed the assignment of various equipment rental agreements from NorVergence to IFC. According to the master program agreement, when IFC agreed to purchase a rental agreement, NorVergence would assign to IFC all its rights, title and interest in the agreement and equipment, including all monies due and to become due, but none of NorVergence's obligations under the agreement. IFC Credit Corp. v. Magnetic Technologies, Ltd., 368 Ill.App.3d 898, 899, 307 Ill. Dec. 76, 859 N.E.2d 76 (2006).
Defendants are 18 out-of-state businesses (and some of their owners or officers as personal guarantors) that entered into virtually identical equipment rental agreements with NorVergence for the use of the Matrix equipment. The signature or front page of the agreement set forth the amount of the monthly payment to be made to NorVergence and the rental term of 60 months. A provision above the section for the renter's signature stated:
The back page of the agreement set forth various contract provisions in 21 unnumbered block paragraphs of small typeface. Those block paragraphs were formatted into two columns. Among those provisions were the following:
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