1

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

 

FAUST PRINTING, INC. and FAUST ) 

PRINTING, ) 

 ) 

Plaintiffs, ) Case No. 02 C 9345 

 ) 

v. ) Judge Joan B. Gottschall 

 ) 

MAN CAPITAL CORP. and MAN ) Magistrate Judge Nan R. Nolan 

ROLAND, INC., et al., ) 

) 

Defendants. ) 

MEMORANDUM OPINION AND ORDER

Defendants MAN Capital Corp. (“MAN Capital”) and MAN Roland, Inc. (“MAN 

Roland, Inc.”) have moved for summary judgment in their favor on Faust Printing, Inc. 

and Faust Printing’s (collectively “Faust”) third amended complaint and has also moved 

to strike Faust’s request for a jury trial. Faust, in turn, has cross-moved for summary 

judgment in its favor. For the reasons set forth below, both defendants’ and plaintiffs’ 

motions for summary judgment are denied. MAN Capital’s motion to strike Faust’s 

request for a jury trial is granted. 

I. BACKGROUND

The disputes in this case center on the purchase of a printing press by Faust. In 

1997, Faust commenced negotiations with MAN Roland for the purchase of a MAN 

Roland Series 700 press to replace its own moribund printing press. Faust explored 

several financing options, but in the end elected to arrange financing for the machine with 

MAN Capital’s predecessor in interest, MAN Finance Corp. (“MAN Finance”), a 
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subsidiary corporation of MAN Roland. Faust allegedly decided to finance the press with 

MAN Finance so that Faust would have financial recourse against MAN Roland should it 

default on any of the terms of the agreement to purchase, including if the press failed to 

perform to specifications. 

On September 24, 1997, Dan Quenzer (“Quenzer”) of MAN Roland introduced 

Faust President and CEO Donald Faust to Richard Pierzchala (“Pierzchala”), General 

Manager of Leasing and Financing of MAN Finance. Pierzchala was allegedly 

introduced as “the guy from MAN Roland’s in-house finance department” when in fact 

Pierzchala was employed by MAN Finance and not by MAN Roland. According to 

Faust, Pierzchala and other representatives of MAN Finance allegedly assured Faust that 

financing was being arranged through the same company that manufactured the press, 

and that Faust would have direct financial recourse against the manufacturer. Indeed, 

alleges Faust, Pierzchala used language in his faxes and letters to Faust that led him to 

believe that MAN Roland and MAN Finance were one and the same company. 

In consummating the deal, Faust signed two principal contracts, along with 

assorted riders, schedules and amendments. The first contract (the “Machine Contract” 

or the “Contract”) was signed by Faust and by MAN Roland on January 29, 1998, and 

addressed the acquisition of a new Series 700 printer to be installed by MAN Roland, as 

well as the training of Faust employees in its use. The second contract (the Master Lease 

Agreement” or “Lease”) was signed by Faust and by a representative of MAN Finance, 

and expressed the terms of the proposed financing of the printing press. 

The terms of the Machine Contract specified that Faust would receive “one (1) 

new MAN Roland 700 Series Six Color Offset Press with Coater, Model R706LV.” The 
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press was to be delivered with all standard equipment and several optional accessories for 

a price of $2,589,317 (less a $225,000 trade-in allowance), as described in an 11-page 

attached quotation supplied by MAN Roland. Moreover, the Machine Contract specified 

that it constituted and contained the entire agreement between the parties and that “all 

prior or contemporaneous understandings or agreements between the parties, if any, 

whether written or oral or express or implied, are merged into and with th[e] [Machine 

Contract].” 

The Master Lease Agreement was signed by Faust and by Pierzchala on February 

26, 1998. The Master Lease Agreement was printed on stationery featuring the MAN 

Finance Corporation logo with the word “MAN” in large type and the words “Finance 

Corporation” in smaller type below; the logo is conspicuously similar to MAN Roland’s. 

The Master Lease Agreement stated in its first paragraph that the agreement was “by and 

between MAN Finance Corporation, a Delaware corporation with a place of business 

located at 17 State Street, New York, New York 10004 (“Lessor”) and Faust Printing....” 

The lease continues on to disclaim any warranties by MAN Finance concerning the 

performance of the press.1

 Moreover, the lease also contained a so-called “Hell or high 

water” clause, specifying that Faust’s responsibility for meeting the payment schedule 

 

1 Paragraph 6 of the Master Lease Agreement reads as follows: 

DISCLAIMER OF WARRANTIES: LESSOR, NOT BEING THE MANUFACTURER 

OF THE EQUIPMENT,NOR THE MANUFACTURER’S AGENT, IS NOT 

REQUIRED TO NOR MAKES ANY WARRANTY OR REPRESENTATION, EITHER 

EXPRESS OR IMPLIED, AS TO FITNESS, QUALITY, DESIGN, CONDITION, 

CAPACITY, SUITABILITY, MERCHANTABILITY, USE, OPERATION, OR 

PERFORMANCE, OR THE DELIVERY, SERVICING, MAINTENANCE, OR 

REPAIR, OF ANY EQUIPMENT, OR OF THE MATERIAL OR WORKMANSHIP 

THEREOF, IT BEING AGREED THAT ALL EQUIPMENT IS BEING LEASED “AS 

IS” AND THAT ALL SUCH RISKS, AS BETWEEN LESSOR AND LESSEE, ARE TO 

BE BORNE BY LESSEE AT ITS SOLE RISK AND EXPENSE. LESSEE 

ACCORDINGLY AGREES NOT TO ASSERT ANY CLAIM WHATSOEVER 

AGAINST LESSOR BASED THEREON. 

(capitals in original). 
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was unconditional and not subject to any abatement, deferment, or interruption for any 

reason.

2

 The Lease also stated that the total or partial loss of use or possession would not 

relieve Faust of its responsibility to make payments, nor would repossession of the press 

by MAN, in the event Faust should default on its payments relieve, Faust of its payment 

obligations. 

On the signature page of this Faustian contract are the signatures of Donald Faust 

as President and CEO of Faust as lessee, and Pierzchala as representative of MAN 

Roland (not MAN Finance) as the lessor. This was, according to MAN Finance, merely a 

typographical error that was allegedly remedied when a new substitute page, listing MAN 

Finance as the lessor, was signed by both parties shortly thereafter. MAN Finance 

alleges that it communicated directly and explicitly to Faust the nature of the correction; 

Faust maintains only that it was told that certain words had been “misspelled.” 

MAN Capital asserts that because there was a need for haste in installing the new 

press, Faust was told that it would not receive a machine especially manufactured for it 

but would receive instead an “inventory machine”, i.e., one that had been previously 

contracted for by another MAN Roland customer, Litho Industries (“Litho”). Faust 

disputes MAN Roland’s assertion that it was ever informed that it was not receiving a 

new, custom built machine. According to Faust, Quenzer recognized this particular press 

as one “custom manufactured for another customer” that failed to meet the specifications 

 

2

 Paragraph 11(a) of the Master Lease Agreement states in part that: 

Except as otherwise specifically provided for herein or in any Schedule hereto, each Lease is irrevocable 

for the full term thereof and Lessee’s obligation to pay all Rent and all other amounts due or to become due 

and its obligations to perform its other agreements thereunder are absolute and unconditional, shall not be 

subject to any abatement, reduction, set-off, counterclaim, recoupment, defense, deferment, or interruption 

for any reason whatsoever, and shall survive the expiration of termination hereof to the extent required for 

their complete performance. 
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of the machine for which Faust had contracted. MAN contends that this press had never 

been used and was, essentially, “brand new out of the box.” Faust further alleges that, 

during the installation of the press in Faust’s facility, an unnamed MAN Roland 

employee tampered with the press’ identification plate, altering the year of manufacture 

from 1996 to 1998, an alteration that Faust did not discover until the press was 

repossessed in 2002. 

Faust maintains that the installed press lacked the advanced features of the press it 

had contracted for, but that it was compelled by MAN Roland to sign a “certificate of 

acceptance” under threat that MAN Roland would lock off the power supply, rendering 

the press nonoperational. The press was duly installed in Faust’s printing facility on 

September 2, 1998. According to Faust, the completely installed press was 

unsatisfactory, prone to mechanical difficulties and breakdowns, and produced poor 

quality prints. As a result, Faust alleges it lost customers and substantial revenue and was 

ultimately unable to meet the payment schedule prescribed in the Master Lease 

Agreement. Consequently MAN Capital (MAN Finance’s successor in interest) filed suit 

against Faust to repossess the press, which it did in 2002. Faust subsequently filed the 

instant suit, claiming fraudulent inducement to enter the Machine Contract against MAN 

Roland (Count I); fraudulent inducement to enter into the Master Lease Agreement 

against MAN Roland and MAN Capital (Count II); and alter ego liability against MAN 

Roland and MAN Capital (Count III).3 MAN Roland and MAN Capital filed a 

counterclaim alleging breach of contract by Faust. Presently before the court are both 

 

3

 A fourth claim against MAN Aktiengesellschaft, the German parent organization of MAN Roland and 

MAN Capital, was dismissed for lack of personal jurisdiction. 
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parties’ motions for summary judgment and defendant’s motion to strike Faust’s demand 

for a jury trial. 

II. ANALYSIS

Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant for summary 

judgment bears the burden of establishing that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 

56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the nonmoving 

party fails to make a showing sufficient to establish the existence of an element essential 

to that party's case on which that party will bear the burden of proof at trial, then Rule 

56(c) mandates a grant of summary judgment. Celotex, 477 U.S. at 322-23. When 

considering a motion for summary judgment, the court will consider the evidentiary 

record in the light most favorable to the nonmoving party and will draw all reasonable 

inferences in its favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 

2002). 

A. Faust’s claim that MAN Capital Fraudulently Induced it to Enter into the Master 

Lease Agreement.

Faust’s claim that MAN Capital fraudulently induced it to enter into the Master 

Lease Agreement is predicated on two principal allegations: (1) that MAN Roland and 

MAN Capital fraudulently misrepresented to Faust that they were the same company, and 

that MAN Capital provided “in-house” financing for MAN Roland; (2) that MAN Capital 

and MAN Roland conspired to mislead Faust into believing that it was dealing only with 

the manufacturer in structuring the purchase agreements by fraudulently switching the 

signature pages of the Master Lease Agreement. By this alleged ploy, Man Capital led 
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Faust to believe that it was signing a financing agreement with MAN Roland, the 

manufacturer of the press. 

Both sides concede that Illinois law controls this dispute. In Illinois, fraudulent 

inducement requires proof of five elements: (1) a false statement of material fact; (2) the 

statement is known or believed to be false by the person making it; (3) an intent to induce 

the other party to act; (4) action by the other party in reliance on the truth of the 

statement; and (5) damage to the other party resulting from such reliance. Hoseman v. 

Weinschneider, 322 F.3d 468, 476 (7th Cir. 2003) (quoting Cotter v. Parrish, 520 N.E.2d 

1172, 1175 (Ill. App. Ct. 1988)). Moreover, concealment of an existing material fact 

and/or silence, accompanied by deceptive conduct or suppression of material facts, 

amounts to fraudulent misrepresentation. Munjal v. Baird & Warner, Inc., 485 N.E.2d 

855, 862-63 (Ill. App. Ct. 1985). 

In their motion for summary judgment, MAN Capital and MAN Roland attack 

Faust’s complaint on the fourth and fifth elements, asserting that (i) Faust could not have 

reasonably relied upon MAN Capital’s alleged representation; and (ii) that Faust was not 

damaged by MAN Capital’s alleged fraud. 

MAN Capital and MAN Roland contend that Faust could not have reasonably 

relied on any representation made by the defendants that MAN Roland and MAN Capital 

were the same company (and thus suggesting that Faust would have financial recourse 

against the defendants if the press failed to perform) because any such representation 

conflicts squarely with the explicit language of the lease. Illinois courts have long 

recognized that “a party is not justified in relying on representations made when he has 

ample opportunity to ascertain the truth of the representations before he acts. When he is 
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afforded the opportunity of knowing the truth ... he cannot be heard to say he was 

deceived by misrepresentations.” Davis v. G.N. Mortg. Corp., 396 F.3d 869, 882 (7th 

Cir.2005) (quoting Schmidt v. Landfield, 169 N.E.2d 229, 232 (Ill. 1960)); see also Miller 

v. William Chevrolet/GEO, Inc., 762 N.E.2d 1, 9 (Ill. App. Ct. 2001). More specifically, 

Illinois courts have consistently refused to extend the doctrine of fraudulent inducement 

to vitiate contracts where the complaining party could have discovered the fraud by 

reading the instrument and had the opportunity to do so; this is the so-called “duediligence” rule. Kolson v. Vembu, 869 F.Supp. 1315, 1322 (N.D. Ill. 1994); Davis, 396 

F.3d at 882. 

MAN Capital argues that the language of the Master Lease Agreement alone 

controls because it is unambiguous and explicit that the obligation to make payments was 

absolute and unconditional and not subject to any defenses, abatements, or set-offs due to 

non-performance. Therefore, according to MAN Capital, any other representations made 

to Faust outside of the four corners of the Lease are irrelevant. Likewise, the “Hell or 

high water clause” of the Master Lease Agreement allegedly obligated Faust to payment 

for the full term of the Lease, regardless of any other circumstances or representations. 

MAN Capital points to the same non-recourse language in the Machinery Contract to 

prove that Faust can hardly have been ignorant of this provision in both agreements. 

Therefore, according to MAN Capital, given the clear and unambiguous language of the 

contracts, Faust could not have reasonably believed that it would have recourse against 

MAN Finance should the press fail to function to its specifications, and Faust remained 

obligated to make the payments required by the Master Lease Agreement. 
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MAN Capital also argues that Paragraph 22(e) of the Master Lease Agreement 

provides that the “Lessor may sell, assign, transfer, grant security interests in, or 

otherwise dispose of any or all of its interests in or rights under this Agreement or any 

Schedule hereto (sic), together with its obligations, and Lessee hereby consents to the 

same.” MAN Capital contends that even had Faust believed it was entering into the 

Master Lease Agreement with the manufacturer of the press, that lease was still 

assignable by MAN Capital at any time. 

Faust counters with the contention that, under Illinois law, contractual terms are to 

be viewed in context, and the contract must be considered as a whole in order to ascertain 

the parties’ intent. See Utility Audit, Inc. v. Horace Mann Service Corp., 383 F.3d 683, 

687 (7th Cir. 2004). Faust argues that if the language of the Master Lease Agreement is 

ambiguous, then as a matter of law it must be construed against the drafter and extrinsic 

representations may be considered by the court. Bourke v. Dun & Bradstreet Co., 159 

F.3d 1032, 1036 (7th Cir. 1998) (citing Dowd & Dowd, Ltd. v. Gleason, 693 N.E.2d 358, 

368 (Ill. 1998). The question, then, is whether the language of the contract is ambiguous 

upon the subject of Faust’s obligations to pay without recourse. 

The language in the “Hell or high water clause” quoted in footnote 2 supra is 

contained within a clause (Clause 4) entitled “Net Lease” and is preceded by a brief 

sentence stating that: “Each Lease shall be a net lease.” A net lease is one which 

generally puts the burdens of ownership on the lessee, who pays all taxes and operating 

expenses on the property so that the owner receives a fixed or “net” rental. Chicago City 

Bank & Trust Co. v. Ceres Terminals, Inc. 417 N.E.2d 798, 805 (Ill. App. Ct. 1981). 

Faust argues that because the clause was preceded by the “net lease” declaration, a plain 
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reading of the clause’s language is that Faust was not yielding all rights of recourse 

against MAN Capital (or MAN Roland), but rather that it was not entitled to set off 

against the rental payments the amounts that Faust was going to have to pay for the taxes, 

insurance and similar payments the Lease required Faust to make. Moreover, Faust 

claims that the language of the second sentence of the clause reading, “Except as 

otherwise specifically provided for herein or in any Schedule hereto...,” qualifies the 

“absolute nature of the subsequent text.” Faust then points to clause 11(b) of the Master 

Lease Agreement which provides in part that: 

In the event of any damage to the Equipment or any other loss, lessee shall 

immediately give notice of such damage or loss to the Lessor, and to the 

insurers that have insured against such risks and Lessor shall have the 

option, exercised in its sole discretion, to either repair or replace the 

equipment or declare the lease to be terminated. 

Faust asserts that the 11(b) language indicates a willingness by the lessor to stand 

by the machine and financial recourse against the lessor should the press fail to 

perform to specification. 

 Faust counters the defendant’s argument concerning the assignability of 

the Master Lease Agreement by pointing out that the language of Clause 22(e) 

states that the right to transfer or assign the Lease carries with it the obligations of 

the Lessor, and it contends that those obligations include the responsibilities of 

the Lessor to ensure that the press functioned as specified. 

When the court considers a motion for summary judgment, it considers the 

evidentiary record in the light most favorable to the nonmoving party. Lesch, 282 F.3d at 

471. Looking at the language of the contract in a light most favorable to Faust, its 

interpretation of the language of the contract could be reasonably construed as supporting 
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its interpretation of the terms contested here, as opposed to the construction championed 

by MAN Capital and MAN Roland. The “net lease language” of Clause 4 of the Lease 

could be reasonably construed to support Faust’s meaning, i.e., that Faust was obligated 

for all additional required payments (as in a net lease) that the Lease required it to make. 

Likewise Faust’s interpretation of Clause 11(e) is not unreasonable. The language 

of the clause (omitted in defendant’s motion brief) states that the obligations of the 

Lessor transfer with the Lease in addition the rights conferred by it. Thus, if Faust 

believed that MAN Roland and MAN Capital were, as the same company, financially 

responsible for the proper functioning of the press, then any transfer of the lease would 

require the transferee to assume the same obligation. The court cannot say whether such 

interpretations of the contractual language will prevail at trial, but that is not the standard 

required to survive a motion for summary judgment. 

Looking at the facts in the light most favorable to Faust, therefore, there are 

alternate reasonable interpretations of the Master Lease Agreement, and an ambiguity can 

therefore be said to exist. A contract term is ambiguous only if the language used is 

reasonably and fairly susceptible to more than one meaning. Lenzi v. Morkin, 452 N.E.2d 

667, 669 (Ill. App. Ct. 1983, (citing Chicago Investment Corp. v. Dolins, 418 N.E.2d 59, 

62 (Ill. App. Ct. 1981). When such an ambiguity exists within the four corners of the 

contract, extrinsic evidence may be admitted. Lenzi, 452 N.E.2d at 669. The question of 

whether a contract is ambiguous is entirely a matter of law to be determined by the court. 

Id. 

Therefore, Faust’s recitation of the alleged representations made to it concerning 

the relationship between MAN Capital and MAN Roland may be considered. The court 
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must view the statements made by Pierzchala that MAN Capital was “in-house 

financing,” and that MAN Capital was a part of MAN Roland, as well as the signature 

block on the original version of the Master Lease Agreement stating that the signatory 

(Pierzchala) represented MAN Roland in the light most favorable to Faust. Doing so, the 

court finds that the fourth element of fraudulent inducement is met, viz., that Faust acted 

reasonably in reliance on the truth of the statements made by MAN Capital. 

Since there is thus a genuine issue of material fact concerning whether Faust 

reasonably relied upon MAN Capital’s representations concerning the Master Lease 

Agreement, defendants’ argument fails on this point. 

Defendants next argue that Faust has failed to establish that there is any genuine 

issue of material fact supporting the fifth element of fraudulent inducement, i.e., that 

Faust was not damaged by MAN Capital’s alleged fraud. MAN Capital argues that Faust 

is no worse off having entered into the Lease with it than it would have been if it entered 

into a similar contract with MAN Roland, as Faust believed it was. Defendants claim 

that regardless of the signatory on the Master Lease Agreement, any performance 

problems with the press would not act as a defense to Faust’s obligations to make the 

payments scheduled with the Lease, an obligation that was irrevocable under the explicit 

terms of the Lease. Thus, according the defendants, it makes no difference whatever 

whether it was MAN Capital or MAN Roland who was the signatory to the Master Lease 

Agreement. 

Furthermore, the Master Lease Agreement also contains a clause (“Clause 18”) 

which contains an express provision immunizing MAN Capital against any action by 

Faust for loss of anticipatory profits or consequential damages. Therefore, according to 
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MAN, this action cannot be brought by Faust under the terms of the Master Lease 

Agreement.4

Faust claims in turn that because it was fraudulently induced to enter the contract, 

believing (based on MAN Capital’s allegedly fraudulent representations) that through the 

Lease it would have financial recourse against MAN Roland. Under Illinois law, a 

contract that is fraudulently induced is voidable by the innocent obligor. Tower Investors 

LLC v. 111 East Chestnut Consultants, Inc., 864 N.E.2d 927, 939 (Ill. Appt. Ct. 2007) 

(citing Illinois State Bar Ass'n Mutual Insurance Co. v. Coregis Insurance Co., 821 

N.E.2d 706, 712-13 (Ill. Appt. Ct. 2004)). Moreover, Faust claims that Clause 18a of the 

Master Lease Agreement is inapplicable, because it addresses not breach of contract, but, 

rather, default by the Lessor, i.e., if MAN Capital had failed to lease the equipment to 

Faust. 

Under Illinois law, consequential damages such as lost profits may be limited or 

excluded by parties to a contract unless the limitation or exclusion is unconscionable. 

810 ILCS 5/2-719(3); CogniTest Corp. v. Riverside Pub. Co., 107 F.3d 493, 496 (7th Cir. 

1997). However, Faust’s claim that it was fraudulently induced into the Master Lease 

Agreement is predicated on the genuine issues of material fact described above. If it was 

so induced, then the contract may be voidable by Faust. Again, there is a genuine issue 

 

4

 The language of Clause 18 reads in part: 

Upon the event of a Lessor Event of Default, Lessee, at its option, may (i) cancel the lease and recover so 

much of the Rent previously paid by it or (ii) commence an action for specific performance against Lessor. 

NOTWITHSTANDING ANYTHING CONTAINED HEREIN OR IN A LEASE TO THE CONTRARY, 

IN NO EVENT SHALL LESSEE, REGARDLESS OF CAUSE, ASSERT ANY CLAIM WHATSOEVER 

AGAINST LESSOR FOR LOSS OF ANTICIPATORY PROFITS OR CONSEQUENTIAL DAMAGES. 

THIS SUBSECTION (a) CONSTITUTING THE EXCLUSIVE REMEDIES OF LESSEE AND 

LESSOR’S SOLE REPONSIBILITY AND LIABILITY TO LESSEE HEREUNDER. 

(capitalization in original). 
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of material fact that is contested by the parties, and MAN Capital’s motion for summary 

judgment is consequently denied. 

B. Faust’s claim that MAN Roland Fraudulently Induced it to Enter into the Machinery 

Contract.

Defendant MAN Roland, which entered into the Machinery Contract with Faust, 

disputes Faust’s contention that it fraudulently induced Faust to enter into the Contract. 

The principal dispute between MAN Roland and Faust centers upon the nature of the 

Series 700 press that was the object of the Contract. Specifically, the language of the 

Machinery Contract specifies delivery of: “One (1) New MAN Roland Series 700 Six 

Color Offset Press with Coater, Model R706 LV complete with standard equipment and 

optional accessories as described in attached quotation # WDQ10322.2 dated January 22, 

1998.” MAN Roland contends that, because of time pressures, the press that was 

delivered to Faust was an “inventory press,” i.e., one that had been manufactured for 

another client, Litho, Inc., (“Litho”) in 1996, but which had been sold instead to Faust. 

MAN Roland insists that the press delivered to Faust, although manufactured for Litho, 

and with Litho’s name imprinted on the operator’s manuals, was “new out of the box.” 

Moreover, MAN Roland contends that the Contract never specified that the press be 

manufactured in 1998, merely that the press be “new.” 

Faust asserts that, far from being new, the press was sold to, and returned by, 

Litho, that it lacked components and upgrades that would have been present in a 1998 

model, and hence performed less well. Faust also alleges that an unnamed MAN Roland 

operative attempted to conceal the age of the machine by altering the date stamped onto 

the press’ registration plate. 
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 In sum, the dispute centers on what is the definition of a “new” press and 

the expectations that the parties had (or were led to believe) at the formation of 

the contract. Faust believes that it was entitled to a newly-manufactured 1998 

press, and that MAN Roland attempted to conceal the actual age of the machine. 

MAN Roland contends that the 1996 inventory press was to all intents and 

purposes “new,” and that it in no way attempted to mislead or fraudulently 

induced Faust to contract for anything less than what Faust actually received. 

Since this reflects a dispute over a genuine issue of material fact, MAN Roalnd’s 

motion for summary judgment is denied. 

C. Faust’s Motion for Summary Judgment of Defendants’ Counter-Claim Alleging 

Breach of Contract.

MAN Roland and MAN’s counter-claim for breach of contract against the 

defendant’s is based on the nature and performance of the same Series 700 press. Faust 

alleges that defendants breached the Machinery Contract and the Master Lease 

Agreement by providing a press that was not “new” but had been manufactured for Litho 

and retained in inventory. Moreover, alleges Faust, the machine did not perform to the 

specifications recited in the Contract. Defendants MAN Capital and MAN Roland, 

dispute these allegations, claiming that the machine was not used prior to its acquisition 

by Faust and that the machine met its specified performance requirements, if not 

continuously. As summarized in the previous section, this represents a dispute over 

genuine issues of material fact sufficient to defeat Faust’s motion for summary judgment. 

D. Defendants’ Motion to Strike Faust’s Request for a Jury Trial.
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Man Capital and MAN Roland have moved to strike Faust’s request for a jury 

trial based upon the language of Clause 22(k) of the Master Lease Agreement (“Clause 

22(k)”). Clause 22(k) reads: 

(k) Waiver of Jury Trial. THE PARTIES HEREBY KNOWINGLY 

WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY 

CLAIM OR CAUSE OF ACTION LITIGATED IN ANY COURT 

BASED UPON, WITH RESPECT TO, IN CONNECTION WITH, OR 

ARISING OUT OF THIS AGREEMENT OR ANY SCHEDULE 

HERETO AND ANY AND ALL OTHER COMMON LAW AND 

STATUTORY CLAIMS. IN THE EVENT OF LITIGATION, A COPY 

OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT 

TO A TRIAL BY THE COURT. (capitals in original). 

Clause 22(k) is the final clause of the Lease and is printed in bold face 

type directly above the parties’ signatures. 

Faust argues that because the contract was fraudulently induced, the terms 

of the contract are therefore irrelevant to the issue of this case. Faust contends, 

without citing any authority to support its contention, that the clause applies only 

to claims “based upon, with respect to, in connection with, or arising out of this 

agreement” and that the alleged fraudulent inducement of the contract does not 

fall into any of these categories. 

The court disagrees. Illinois courts and federal courts applying Illinois law have 

held that similarly-word jury trial waivers and comparable contract clauses apply to 

claims of fraudulent inducement in addition to contract claims. See, e.g., Konewko v. 

Kidder, Peabody & Co., 528 N.E.2d 1, 5 (Ill. App. Ct..1988), (“[a]ny controversy or 

claim arising out of or relating to accounts of ... the undersigned or to this agreement [sic] 

or the breach thereof shall be settled by arbitration” required that fraudulent inducement 

claim be arbitrated); Matthews v. Rollins Hudig Hall Co. , 72 F.3d 50, 54 (7th Cir. 1995) 
17

(in arbitration provision, “relating to a breach of th[e] Agreement” encompassed 

fraudulent inducement claim); Jannotta v. Subway Sandwich Shops, Inc., No. 94 C 3834, 

1999 WL 184396, at *2-3 (N.D. Ill. March 29, 1999) (attorneys’ fees provision in 

contract applicable to claims of fraudulent inducement); (C.F.M.I., Inc. v. Felish, No. 96 

C 3547, 1996 WL 745347, at *4 (N.D. Ill. Dec. 24, 1996) (in arbitration provision, fraud 

in the inducement claim “certainly” was a “dispute between the parties ... in relation to 

this Agreement”). The language of Clause 22(k): “based upon, with respect to, in 

connection with, or arising out of this agreement” is sufficiently broad by this standard to 

be applicable to the fraudulent inducement claim brought by Faust. 

Faust also argues that it did not voluntarily and knowingly agree to the jury trial 

waiver and that it is therefore unenforceable. There is a general presumption against 

enforcing such waivers, and thus a waiver of the right to a jury trial must be made 

knowingly and voluntarily. Heller Financial Leasing, Inc. v. Gordon, No. 03 C 6326,

2004 WL 2806458, at *6 (N.D. Ill. Dec. 3, 2004). Four factors are analyzed to determine 

whether this test is met: (1) the parties' negotiations concerning the waiver provision, if 

any, (2) the conspicuousness of the provision, (3) the relative bargaining power of the 

parties and (4) whether the waiving party's counsel had an opportunity to review the 

agreement. Whirlpool Financial Corp. v. Sevaux, 866 F. Supp. 1102, 1105 (N.D. Ill. 

1994). Not all of these factors need be satisfied; rather, the court must balance the 

various factors. IFC Credit Corp. v. United Business & Indust. Federal Credit Union, 

474 F. Supp. 2d 945, 954 (N.D.Ill. 2006). 

In the instant case, neither side claims that there was any negotiation with respect 

to Clause 22(k), although MAN Capital alleges that other portions of the lease were 
18

negotiated and that MAN Capital altered two provisions of the Lease during these 

negotiations. No evidence is adduced by Faust that it was precluded from, or unable to, 

negotiate this specific clause, other than that it was told that the contract was “standard 

boilerplate.” This factor might weigh in Faust’s favor since the absence of specific 

discussions or negotiations concerning a contractual jury trial waiver weigh in favor of it 

being unenforceable. See In re Reggie Packing Co., 671 F. Supp. 571, 573 (N.D. Ill 

1987). Clause 22(k), as noted above, is certainly conspicuous; it is the final paragraph in 

a seven-page lease agreement, in capitalized, bold-faced print located directly above the 

signatures of the parties. Moreover, even if the location was less conspicuous, it is only 

in extreme cases that the courts invalidate a waiver clause due to its inconspicuous 

location in a contract. In re Reggie, 671 F. Supp. at 573. The parties in the instant were 

established businesses, with knowledge of business procedures and contracts, engaged in 

a protracted, arm’s length transaction (Faust had allegedly investigated and negotiated 

with other printing press manufacturers). There is no evidence to suggest that Faust’s 

attorney reviewed the contract before it was signed but, conversely, there is no evidence 

to suggest that Faust could not or did not have the opportunity to have an attorney review 

the contract. Moreover, prior review of a contract by an attorney is not required to render 

a waiver of jury trial provision enforceable. Tradewinds Aviation, Inc. v. Jet Support 

Services, Inc., 04 C 1406, 2004 WL 2533728, at *5 (N.D. Ill. September 28, 2004). 

Under this analysis, the balance of factors favors enforcing Clause 22(k) and granting 

MAN Capital’s motion to strike Faust’s request for a jury trial. 
19

III. CONCLUSION

 For the reasons specified above, MAN Capital’s and MAN Roland’s motions for 

summary judgment are denied. Faust’s motion for summary judgment is also denied. 

Finally, MAN Capital’s motion to strike Faust’s request for a jury trial is granted. 

ENTER: 

 /s/ ____ 

 JOAN B. GOTTSCHALL 

 United States District Judge 

DATED: December 14, 2007