please call our first case court or a little background in tech was a limited liability company formed in two thousand and six doing business in illinois in headquartered here in illinois it provided procurement services for maintenance repair brewer a large group headquartered here in chicago on a second largest group in the united states efforts to reduce costs with an attack and the party's continued meeting in discussing their business interests for the next few years these discussions took place in milwaukee and in golden colorado and here in chicago was well  discussion all out or there was no discussion he had found what the venue would be because that was supposedly i suppose we could just quickly say his it was off the table correct but it was never asked well judge  the complaint we have today that the only terms that could be negotiated for in tack involve its continued proprietary rights in its software and that's what we've alleged your honor so based on my review and argument say that when you get out from under this and i understand you you started with mr brandt being the office of branding in chicago it's also five other states as critical for what's your best case well judge i think what contract and where the term of that form selection crys could never be negotiated you're right of course and tech could have walked away from this contract no doubt about that any quality i think in general can do that but what scheme and i don't think that you can take a particular provision and put it into a bucket and say well you know we are not going to look to that particular provision to determine if there was any fault fraud involved in that and put everything else into separate buckets we have a transaction here that was entered into and a contract that was entered into by the parties in the entire contract in our opinion and according to our complaint in the affidavit submitted was based on friday including the form selection clause so that would be my best response  concept and he entire underpinning of the contract fine i'll give you that it's that but how does the form selection itself become a matter permeated with this knew it was going to constrict in tax ability to pursue its business pursuits and then as part of that scheme they are going to require in tech if it's going to try to chase you know of course they have to fly out to colorado with all of the evidence and all of the witnesses in the involvement of the breweries and ball have nothing to do with colorado so it's a part of the scheme and part of that scheme is to strangle them into basically eliminate any possibility that intact or now mr brand as a  seine is going to have to pursue the claims in colorado however has nothing to do with anything involved in this transaction nothing it has nothing to do with it and if anybody you know couper's i think they're from golden these are knowledgeable business concerns i've seen they're represented by knowledgeable lawyers and clearly and unambiguously in the cat track four of it is what are these they never discussed why is it a fraud oh well they they did discuss it and no a course that buys them you can't negotiate this term it's part of our standard contract is this approach up as part of a private scheme when they're trying to basically steal the corporate ideas and proprietary information of intact and as part of that scheme they know that essentially they're going to run out run the little guy out of business by not paying down and then let's make them have to go to colorado where none of the evidence at all is also i think we reference specific statements having nothing to do with a for selection clause as well those statements were communications to the suppliers of bad intact had been paid by miller coors and so then the suppliers are saying well disregard the imbalance where you've got both of the parties headquartered here and you've got one of them is b k well i think that what we're asking your honour's to do is to consider that result as part of the scheme here part of what miller course did was run antec out of business and stole their ideas and are continuing they're continuing to utilize that now directly with suppliers by i think the burden is to show that one of the burdens that is to show that essentially if you have to go to colorado to litigate you're not going to have your day in court yes and how did you show your well judge i think what we showed here is that you can't do that when none of the evidence is in colorado and in order to do that it's going to essentially be something where the pla colorado how radel has no relationship to this dispute none that they're both headquartered here everybody's headquartered here none of the why would it be prohibitively expensive to go to colorado as opposed to here i understand through what the other thing of course are the clock at factors that are set out and there are six of those factors and then you can look at those to determine if the form selection was itself is reasonable or not and in our opinion those factors  was part of a fraud ok then it falls upon you to show in the record tell us in your argument what what what is it about the forum and colorado that is or the courts for there are so one sided toward miller course that bram feels as a citizen of elena why he's not going to get a fair shake or what i say the what are the elements of fraud it would be inconvenient for breyer to litigate in colorado we've got both densities here in chicago and in all annoyed and then we've got the six back and i think that's the important one the form selection possibly wasn't bargained for and the cases that have been cited talked about situations where you got an arm's length transaction in a negotiation for the forms lection clause it didn't occur here and tech couldn't negotiate any part of that term and it was part of a they were actively bargaining for and brad said ok but my reading and i hate my reading of the cases is when you've got a term that is required in a contract and there is no bargaining for it i think that's what they're talking about or should not be held to a contract term premised on a fragile it's like we have here and i think at this time your honor so i'd like to reserve the balance of my time unless you have questions for me now balance of my time for a bottle you'll have five minutes and the court counsel my name is richard greenberg i'm here for the appellate no of course i'll say you know this i think the question before the court is whether the trial court when it enforced an express clear unambiguous form selection clause in a commercial contract between two sophisticated business entities i think every single decision reported decision in illinois in that type of situation has ruled in favor of the validity of the clause and we believe that should be the ruling here too and that judge powers decision should be affirmed it appears that there's agreement that these clauses are prime a facially valid and that to get out from under the cause of the clause the plaintiff would either have to show that in effect it would be denied its stay in court in colorado or that  perhaps the clause for some reason violates public policy i don't think there's any public policy issue that's been been raised here and in fact i think to the extent there are public policy issues they always strongly in favor of the clause and in particular  illinois favors freedom of contract and illinois also favor certainty in commercial transactions it's important when the sophisticated business entities clearly write down their agreement it that their reasonable expectation that the courts will enforce the agreement as written will be will be up help specifically mr brant has not shown that it would be so inconvenient to litigate in colorado that in effect he would be denied his day in court as justice quinn acknowledged there are offices for mr brand all of the united states and abroad as well he's  very capable of litigating all over there's just been no showing at all that colorado is inconvenient at all or even more inconvenient then then illinois not withstanding the representations of  i don't think there are any allegations that support that that contention i think the case law is clear and clued in the i f c court decision which let me quote from page fourteen of decision which says in order to invalidate the clause on the ground of fraud no overreaching the fraud alleged must be specific to the forum's election clause itself there is no  allegation in the in the complaint or otherwise that there was any fraud in connection with the form selection clause itself in fact the cases clearly go the other way as as the panel has has pointed tech was represented by counsel they had the clause in front of them they were told you can take it or leave it that's that's their claim so when you go into a contract with your eyes open knowing that there is going to be a dispute it may be a little more inconvenient for me to litigate it in colorado i think when that dispute arises later on you can't be heard to say well now i don't want to be i don't want to be bound by that clause the allegations of fraud in the complaint your honor i don't think on very well founded or meet the standard for a foot pleading for oil in illinois in fact brand claim seems to be that what miller course really was doing was i think if i got it down correctly was to a enter into a calculated plan to increase earnings by reducing  costs that doesn't sound like a fraud to me that sounds like a good business plan and why is management by a company to reduce costs and increase profits moreover while counsel says that there may have been an effort to steal and tax concepts and ideas there is no allegation in the complaint that miller corps did steal and tax concept or ideas the other thing that i think is significant is that both parties agree that this was a contract that was negotiated over a three year period to cut the negotiation started in two thousand and ten ice existing in two thousand and seven and didn't conclude until two thousand and ten so it's a little difficult i think for antec or the assignee mr brandt to now argue that after having this clause in front of it for three years and not raising any objection to it as as far as  far as i heard there's no allegation that there was any objection to it that right now it should not be enforced the other thing that i think is significant about why the clause in and of itself it should be enforced is that pla f brings a breach of contract claim so plentiful rights provisions of the contract in force he just doesn't want this provision enforced i don't think plaintiffs get to pick and choose which parts of a contract  can be enforceable and which ones can't be and just as counsel said that you know a party can't put a provision in a pocket and take it out and then have the rest of the provisions in force that seems to be exactly what mr brand is  is trying to do here on in terms of the standard therefore i don't think there's been any showing at all that the plaintiff has overcome was met his burden of showing that he would in effect day in court he says that it would be inconvenient but there's no allegation of why it would be inconvenient the plaintiffs on brief say that the three most important witnesses for miller a claim of prejudice there's been no showing of prejudice no showing of comparative cost differential or why documents can't be shipped someplace else why depositions can't be is instead of li testimony if that would prove necessary and of course the claims about disruption to business that were originally part of an texas case no longer really apply get that out of business there's there's no one whose work day is going to be  enough money to prosecute this appeal and wait you know some fifteen sixteen months before pursuing the claims is nothing to preclude them from hiring competent counsel in in colorado to perhaps handle the case on a contingency  fee their complaint alleges damages of more than twenty million dollars presumably if they really feel strongly that they have a valid claim they can convince council in colorado to take it and really it's no different then how are they going to litigate it here they don't have the money to litigate it in colorado i don't see how they would have the money to to litigate it here in terms of the calling the factors that the same clause which says that this case shall be brought up must be brought in in the state court in denver or in the united states district court for the district colorado also stipulates that colorado law governs not only the dispute but anything related to the dispute were all that is terms of the place of execution or performance i think it's pretty clear that the relevant witnesses are in ohio virginia north carolina and georgia that is where antec was to render the services for for miller coors so again where parties and witnesses are are all over the united states and finally in terms of the question of whether or not the clause was bargained for i think it was bargained for no one held a gun tax had for three years the negotiations and said you have to sign this this agreement and not withstanding the representations about what miller corps may or may not have known about in tax situation at the time of contracting none of those facts are set forth in the in the agreement itself they don't they just simply don't reflect that the agreement is it's part of the record and and finally  i think again in terms of public policy there are good public policy reasons to enforce these agreements there are only supports the notion of freedom of contract and also when you have two sophisticated business entities represented by counsel entering into a commercial transaction and there's no doubt about what the clause means the reasonable expectation of those parties which i think the courts in illinois have been better respectful of is that their agreement as written will be enforced unless the panel has any more or questions i would just conclude by saying in this type of situation every report a decision in illinois seems to inforce these contracts this one should be enforced to and for that reason we ask that the judgment below be affirmed thank you very much five minutes or would contemplate reasonably in the business world that if the party that i'm contract ing with is defrauding me but i've now got to pursue the fraud claim in a form selected in a for contract yes in the alternative we pursued breach of contract and fraud unjust enrichment and commercial disparagement and i don't believe that any tack was ever under the belief that if it miller course is going to commercially disparage it run it out of business they committed fraud upon it that it had somehow agreed to pursue all that had the litigation out in colorado i just don't believe that that's reasonable under the circumstances between the parties and was were certainly could have been the subject of negotiation we declined to remedy daises failure or inability to object to the clause at the time of contracting and see no reason to release a set piece fista catered corporate entity from the consequences of its bargain base is suing on an agreement seeking to demonstrate the performance under it was simultaneously alleging that certain terms of the agreement are enforceable absolute contravention of illinois general  inconvenience of the california form to simply not a sufficient basis upon which to invalidate the parties isn't a close this issue i don't believe it does your honor when you've got an underlying underlying fraud like separate and apart from the appeal they admitted that they had received it but i guess what i'm trying to communicate is something a little different if you've got a valid form of selection clause and you've got a contract claim based on it it's in forcible obviously here i'm talking about a fraud i'm talking about commercial disparagement and tech never agreed in my opinion to litigate those types of claims in colorado it was defrauded how can it be required to pursue that in brief recess probably no more than five minutes so i suggest you stay seated where you are