## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Koss Cor p. v. Sachdeva , 2012 IL App (1st) 120379

Appellate Court Caption K O SS CO RP ORATI ON, Plaintiff-Appellant, v. SUJ ATA SACHD E VA
, Def endant ( Gra

nt Thornton, L L P, Defe ndant-Appe llee).

District & N o. First District, Six th Division Docke t No. 1-12-0379

Filed J uly 6, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) T h e t ri al court abused its discretion in dismiss ing an action alleg in g neg lige nce and fra

ud by defe n d ant acc ounting firm in the audit of plaintiff’s business acc ounts on the g round of forum n o n conveniens based on the finding that Wis consin was the proper fo ru m wh ere the private interest fac tors did no t fa v or either party and the public interest fac tors favor ed I llinois as a proper forum, especially when a signific ant amount of plaintiff’s a lleg ations were not considere d.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 10-L -7342; the Hon. Bill Taylor, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l J oseph A. Power, J r. , o f Power Roge rs & Smit h, P.C., of Chicag o, and Michae l J

. Avenatti and Alexander L

. Conti, both of Eag an Avenatti, L L P, of Newpor

t Be ach, Ca lifornia, for

appellant.

L inton J

. C h i l d s and Br ian S. Shull, both of Sidley Austin L L P, of Chicag o, Sidley Austin L L P, of New York, New York (Ga ry F. Be ndinge r, of counsel), and Robbins, Russell, Eng ler, O rsec k, Untere iner & Sauber L L P, of Washington, D.C. (Ga ry A. Orsec k, o f counsel), for appellee

.

Panel PRES I DI NG J USTI CE GORDO N delivere d the j udg ment of t he court, with opinion.
J ustices L ampkin and Palmer c oncurr ed in the judgment and opinion.

OP INION

¶ 1 After plaintiff Koss Corporation’s senior vice- president, Sujata Sachdeva
, was acc used of embezz ling approxi mately $34 milli on from Koss betwe en 2004 to 2008, Koss brought claims of neg lige nce, fr au d
, and neg lige nt misrepre sentation ag ainst defe ndant Gra nt Thornton, L L P (Thornton), Koss’s a uditor duringthis period of time. ¶ 2 The trial cour t gra n t ed T h o rn t o n’s motion to dismiss on the g round of forum non

conve niens in favor of

an ac tion in Mi lwaukee County , Wis consin. This appea l followed. ¶ 3 For the rea s o n s d i s cu s s ed b el ow, we find that the trial court abused its discretion by g ranting Thornton’s motion to dismiss on fo ru m n o n conve niens g rounds. First, the trial court overlooke d a signific ant portion of Koss’s fac tual alleg ations in making its analy sis. The case at bar arose out of two distinct sets of fac tual claims. Koss alleg es t h at: (1) Thornton’s auditing team failed to discover the embezzlement in its audits of Koss during the fiscal y ear s ending J une 30, 20 0 4
, throug h J une 30, 2008; and (2) inadequate firm-wide policies, proce dures, and auditor training established by corpor ate headqua rters led to the inadequate audits. Second, althoug h many rele vant witnesses reside in Wis consin and the alleg ed embezzlement and audits all took place in Wisconsin, many rele vant wit nesses also reside

or work in Cook Coun t y and Thornton is headqua rtere d there

. Third, most of the documentar

y evidenc e is online and thus is equally acc essible i n Milwaukee and C hicag o. Four th, the other private and public fac tors do not favor transfe r. L ast, we take judicial notice that Milwaukee is only an hour and a half’s drive from d o wn t o wn Chicag o. I ll. R. Evid. 201(b) (ef

f. J an. 1, 2011). Given these fac ts, and considering that Thornton has the burden 1

“( b) K ind s of Fac ts

. A j udi ci al ly not ic ed fa ct m ust be one not sub

j ect to re aso nab le dis put e 1 in tha t it is *** (1) genera ll y known wit hin the te rr it ori al j uri sdi ct ion of the tr ia l cour t ***.” I ll . R. Evid. 20 1(b ) ( ef

f. J an. 1, 20 11)

.
-2-to prove that the r eleva nt fac tors strong ly

favor transfe r, we find that the trial cour t abused its discretion and should have de nied the motion to dism iss for forum non conve niens

.

¶ 4 BA CKGROUND ¶ 5 I . The Parties ¶ 6 P l ai n t i ff Koss Corporation (Koss) is a public corpor ation whose princi p al p l ac e o f business is in Milwau

k e e , Wi s c o n s in

. K o s s ma

rkets and manufa cture s stereo headphone s and related ac cessor

y products. ¶ 7 Def

endant Thornton is a corpor ate public acc ounting firm wit h i t s p rincipal place of business in Chicag o, I llinois

. Thornton has office s in 26 states. In addition to its headqua rters in Chicag o, Thornton has I llinois office s in Oakbr ook Terr ace and Schaumburg

. Thornton’s Wis consin offic es ar e loca ted in Milwaukee , Madison, and Appleton.

¶ 8 I I . The Claims in the Complaint ¶ 9 There is no dispute that during the fiscal y ear s endingJ une 30, 2004, through J une 30, 2008, Koss’s former vice president of financ e, Sujata Sachdeva
, embezzled more than $30 milli on from Kos s

. S ac h d eva pleade d guilty to wire fra ud char g es in the United States District Court for the Ea stern District of Wisconsin on J uly 16, 2010. ¶ 10 The complaint alleg es that during the y ear s in which Sachdeva em b ez z l ed the funds, Koss eng ag ed Tho rnt on to audit Koss’s financ ial statements and to conduct revie ws of K o s s ’ s u naudited quarte rly financ ial statements and they failed to disclose th e e mb e zzl e me nt. ¶ 11 In th e case at bar, Koss filed a three -count complaint in Cook County
, I llinois , ag ainst Thornton for (1) profe ssional neg lige nce, (2) fra ud an d d ec eit, and (3) neg lige nt misrepre sentation. These counts arose out of two distinct sets of fac tual claims. First, Koss alleg es that Thornton’s auditing team failed to discover the embezzlemen t i n i ts audits of Koss during the fiscal y ear s ending J une 30, 2004, t h ro u g h J une 30, 2008. Second, Koss alleg es t hat i nadequate firm-wide policies, proce dures, and auditor t raining es t abli shed by Thornton’s cor

porate headqua

rters le d to the inadequate audits.

¶ 12 I I I

. Forum Non Conveniens Motion and Related Discove ry ¶ 13 On October 25, 2010, Thornton moved to dismiss Koss’s complaint pursuant to I llinois Supreme Court Rule 187 base d on the doctrine of forum non conve niens

. I ll. S. C t. R. 187 (ef f. Aug

. 1, 1986). The trial court g rante d leave to conduct discovery relating to Thornton’s motion to dismiss prior to de ciding the issue. Koss propounded written interrog atories and document reque sts, and serve d depositio n n o ti c e s u p o n Thornton. The following people wer e deposed: Melissa Koeppe l, a Th o rn t o n partne r; Amy Hense lin, Thornton’s corpor ate repr esentative in this case ; and Meg Haf er, human resour ces manag er at Thornton i n Milwaukee

. On J anuar

y 10, 2012, the trial court g rante d Thornton’s motion to dismiss

. This appea l followed.

-3-¶ 14 IV. Summary of Discove ry ¶ 15 Ko ss aver s in its attorney ’s aff idavit submitt ed in response to Thornton’s f o r u m n o n

conve niens motion claims that Thornton’s national h eadquarter s located in downtown Chicag o is 91.3 miles from the courthouse in Milwaukee County

. The aff idavit also provides 2009 statistics that in Cook County
, more ca s es wer e disposed of than newly filed, and in Milwaukee County
, more case s wer e opened than disposed of. Howeve r, these numbers tell us nothing about the re lative spee d with which these two c ounties could handle a complex

case

. Thornton aver s in its attorney ’s af fidavit in support of its moti on to dismi ss that both Koss and Thornton r etained attorney s in I llinois and Wisconsin to li tigate this case. ¶ 16 Since we find that the trial court overlooke d Koss’s fac tual claim conce rningThornton’s firm-wide policies and training
, the discovery below is org anized into the two distinct fac tual claims: the auditing team’s failure to uncover the embezzlement, and t h e co rp o rate headqua rters’ failure to implement adequate policies and tra in its auditors.

¶ 17 A. Claims Concerningthe Audits and the Embezzlement ¶ 18 1. Potential W itnesses ¶ 19 Melissa Koeppe l, a par tner at Thornton, aver s the followingin her a ffidavit: ¶ 20 Koeppe l was the Thornton partne r in char g e of the Koss audit during the fiscal year s ending J une 30, 2004, throug h J une 30, 2008. Koeppe l resides in Br ookfield, Wis consin, and has maintained an office in Thornton’s downtown Chicag o office since April 2011, as well as the Milwauke e off

ice. ¶ 21 The indi viduals who performed the Koss audits are called th e Ko s s en gag ement team. The Koss eng ag ement team comprised a total o f 1 8 Thornton employ ees during the fiscal
y ear s ending J u n e 3 0
, 2 0 04 throug h J une 30, 2008. The eng ag ement team worke d out of Thornton’s Milwaukee office
, and 17 members reside in Wis consin. Three reside in Milwaukee . Four

teen r eside in other cities closer to Mil wauke e than Chica g o. One r esides in New Yor

k. ¶ 22 Thornton’s audits and revie ws o f Ko s s we re p lanned and perf ormed in Milwaukee, Wis consin. ¶ 23 Other Thornton profe ssionals who wer e not eng ag ement team members also billed time to the Koss audits. Thornton ca lls these employ ees “ other timekeepers.” ¶ 24 Thornton provided the followingin its responses to written interrog atories. ¶ 25 Three of the other timekeepe rs reside in I llinois : Mark Scoles is a Thornton partne r and billed time to Koss in 2004. S co l es re s ides in Nape rville, I llinois

. Robert B. Emkow, a former senior manag er, al s o b i l l ed time to Koss in 2004. Emkow resides in Park Ridge
, I llinois

. Emily Pratt, a former senior associate
, also billed time to Koss in 2004, and resides in Chicag o. ¶ 26 T h o rn t o n ’s co rp o ra t e re p resentative in this case , Amy Hense lin, testified as to the followingin her de position. ¶ 27 The other timekeepe rs on the Koss audits provided support to the eng ag ement team, for example, consulting on spec ific matters.

-4-¶ 28 Wis consin auditors h ave regularly trave lled to Chicag o and elsewhe re in I llinois for other

audit eng ag ements, partne rship interviews, and client meeting s. Other than complaints about
trave l in g ener al, no one has complained to Hense lin that coming to Chicag o is inconvenient. ¶ 29 T h o rn t o n n am ed 1 5 curr ent and former Koss direc tors, office rs, and empl o y ee s as subjects of potential testimony in its amende d mem o ra n dum in support of its motion to dismiss

. This list in cl u d es former employ ees Trac y Malone and J ulie Mulvaney
, who alleg edly colluded in Sachdeva ’s embezzlement. Eig ht reside i n Milwaukee County

. Six reside in c ounties closer to Milwauke e than Chica g o. One dire ctor re sides in Kentucky

. ¶ 30 Michae l Koss aver red the following in his aff idavit in opposition to the motion for forum

non conve niens

. ¶ 31 The Koss direc tors, J ohn Koss, J ohn Stoll enwoe rk, Thomas Doer r, T h eo d o re Nix on, L awr ence Mattson, and himself, are not inconvenienc ed by litigating this matter in Cook Cou n t y

. Ko s s will do what is nece ssary to ensure that the company ’s employ ees and members of its board are available to testify at trial, subject to any applicable objections other than those based on location or reside n ce

. Also, more than approximately 30 Koss share holders re side in I llinois

. 2 ¶ 32 Koss’s attorney in this case , Michae l J

. Avenatti, named in his aff idavit in opposition t o the motion for

forum non conve niens the following potential third-par ty witnesses in I llinois : ¶ 33 J ames J

. Hess is the vice president of the Chicag o branc h of Ba nk of Americ a (for

merly L aSalle Ba

nk) from which Sachdeva made unauthorized wi re t ra n sfer s and withdrawa ls. Carolann Gemski and Kar a Washington are Securities and Ex chang e Commi ssi o n (SEC) attorney s who investigated Sachdeva

. Donald Ry ba was the SEC acc ountant on the case

. The SEC investi g ation was ba sed in Chicag o. ¶ 34 Thornton’s att o rn ey in this case , Fr ank B. Vanke r, prese nted four potential third-par ty witnesses in his affida

vit in support of the motion for forum non conve niens

. ¶ 35 J ames Malone was Sachdeva ’s employ ee who was paid with funds embezzled from Koss and resid es in Milwaukee

. Ba ker Tilly Virchow Kra

use L L P (B aker Tilly) was the 3

acc ounting firm that succe eded Thornton as Koss’s auditor afte r Sachdeva ’s embezzlement

was discovere d. Individual partne rs and employ ees of Ba ker Tilly who worke d on the Koss audit reside in Wisconsin and may be subjec ts of potential testimony

. Specifica lly , Way ne T. Morg an is a partne r at Ba ker Tilly

. Morg an resides in Waukesha, Wis consin. J ef ferson Wells was the acc ounting firm reta ined by Koss to investigate and assist in re s p o n s es to

4 Sachdeva ’s embezzlement. In d i vidual partne rs and employ ees of J eff erson Wells who provided s u ch service s to Koss reside in Wis consin and may be subjects of potential testimony

. ¶ 36 In sum, althoug h most Koss employ ees and most Thornton auditors who worke d on the

T he r eco rd doe s no t d is cl ose th e s pec if ic ci ti es in I ll ino is inwhi ch t hey re si de. 2

T he r eco rd doe s no t d is cl ose th e l oca ti on o f Ba ker T il ly. 3

T he r eco rd doe s no t d is cl ose th e l oca ti on o f J ef fe rs on W el ls

. 4

-5-Koss audit reside in Wis consin, there is no showing that these people would be

inconvenienc ed by coming to Cook County

. As detailed above, there are also potential thirdparty witnesses in I llinois

.

¶ 37 2. Documenta ry Evidence ¶ 38 Fr an k B. Va nker, an attorney for Thornton, provided the following information in his aff idavit in support of the motion for forum non conve niens

. ¶ 39 Koss has made available 80 to 90 box es of documents of acc ounting and business rec ords in Milwaukee

. Koss has posted more than 1 milli on pag es of documents elec tronically to a

secur e I nterne t site. Thornton has elec tronically provided approxi mately 170,000 p age s of documents, includingaudit and re view wor k paper s relatingto Koss eng ag ements. ¶ 40 Amy Hense lin testified in her deposition that Thornton’s serve rs are located in Oakbrook Terr ace , I llinois ; Thornton’s auditors’ e-ma il and elec tronic audit work paper s are located

on these ser

vers; the a

udit work paper s also exis t in hard copy in Thornton’s local office s; and since most documentar y evidenc e exis ts elec tronically
, it should be rea dily available in either f orum.

¶ 41 B. Claims Concer ning T hornton’s Policies, Procedur es, and Tr aining ¶ 42 1. Potential W itnesses ¶ 43 a. Witnesses ConcerningThornton Policies and Proce dures ¶ 44 Thornton provided the followingresponse s to written interrog atories. ¶ 45 Eig ht Thornton employ ees wer e primarily respons i b l e fo r reviewing or approvingthe issuance of audit manuals used in the revie w and audit service s perf ormed for Koss for fiscal
y ear s endingJ une 30, 2004 through J une 30, 2008. ¶ 46 Five of these indiv i du al s re s i d e i n I l l i n o i s

. J o h n Ar ch am b au l t i s the senior p a r tn e r–prof essional standards and g lobal public policy

. Arc hambault resides in L ibe r ty v il le

. Maria Manasse s is direc tor, national profe ssional standards group, and resides in Orland Park. Keith Newton is the United States pa rtner in c harg e of audit methodologie s/auditing standards, and resides in Oak Park. J .W. Starr is the former manag ing partne r of strateg ic service s, and resides in Chicag o. Russell W ieman is the chief financ ial office r, and resides in Western Springs. ¶ 47 J ennife r C arne y is the par tner in charg e of audit training and knowledge resour ces and is the head of the g roup updating Thornton’s audit manual and overse eing its audit training materia ls, and resides in L incoln, Nebr aska. Howeve r, Amy Hense lin testified in her deposition that Carney

works out of Thor

nton’s Chicag o office

. ¶ 48 Hense lin also testified to the following in he r deposition. ¶ 49 Thornton’s reg ional partne r in char g e of profe ssional standards (RPPS ), now called the national profe ssional standards partne r, helps implement the firm’s acc ounting and auditing policies and is involved in risk manag ement. Mark Scoles was the RPP S until 2008. Mike Santay succe eded Scoles and was the RPP S at the time Koss discovere d Sa ch d ev a’s

-6-embezzlement in Decembe r 2009. B urt Fox succee ded Santay

.

¶ 50 Thornton’s response s to interrog atories sta t e t h at Scoles, Santay
, and Fox work out of Thornton’s Chicag o office

. ¶ 51 M eg Ha fe r, human resour ces manag er at Thornton in Milwauk ee , t es t i fi ed i n h er deposition that the partne r responsible for the Midwest reg ion, Mike Hall, also has his office in Chicag o. Hall’s role includes over seeingthe re g ional office s’ financ ials and per sonnel. ¶ 52 I n sum, most potential witnesses conce rning T h o rn t o n ’s fi rm -w i d e p o l i ci es an d proce dures r eside in I llinois

.

¶ 53 b. Wit nesses Conce rningThornton Tra ining ¶ 54 Am y Henselin testified in her deposition that a majorit y o f T h o rn t o n ’s n at i o n al mandatory training for auditors from 2004 to 2011 took place at the Q Center in St. Charles, I llinois

. ¶ 55 Michae l J

. Avenatti, Koss’s attorney , provided th e f o ll o w in g in his aff

idavit in oppositi on to the motion for forum non conve niens

. ¶ 56 Prog rams at the Q Center in St. Charles included core training for audi t o rs an d audit interns, audit leade rship confe renc es, and a udit senior development. ¶ 57 Koss eng ag ement team members made a total of 33 trips to the Q Center betwee n 2004 and 2008. Melissa Koeppe l trav el ed t o C ook County 78 times betwee n 2004 and 2011 in

connec tion with her work at Thornton. Other timekeepers o n t h e Kos s eng ag ement took a total of 71 trips to the Q Center. ¶ 58 There are 37 individuals involved in Thornton’s training programs who reside in I llinois

. J im Maure r is the national manag ing partne r of strateg ic lear ning (the g roup responsible for

cre ating teac hing materia ls), and his office is in Chicag o. Maria Taylor is the meeting team manag er and a contac t person for arr ang ing Q Center training programs, and her office is in Oakbr ook Terr ace

. Another 35 instructors from I llinois
, among many from around the country , are involved in trainingauditors who wor ked on the Koss e ng ag ement. ¶ 59 Since s ev er al T h o rn t o n t ra i n i n g programs occur in I llinois and sever al individuals invol v ed i n training Thornton auditors reside in I llinois
, I llinois appea rs to be a rele vant forum on the f

actua l claim of Thornton’s policie s, proce dures, a nd auditor training

.

¶ 60 2. Documenta ry Evidence ¶ 61 a. Evidenc e Conce rningThornton Policies and Proce dures ¶ 62 Amy

Hense lin testified to the following in he r deposition. ¶ 63 Thornton’s audit and assura nce service s manual (audit m an u al ) s et s forth the firm’s policies and proce dures. The audit manual is updated annually and ref lects Thornton’s interpre tation and application of gene rally acc epted auditi n g standards (GAAS). Thornton auditors are required to follow the audit manua l. Thornton’s bulletins provide information

on upcoming pronounce ments and chang es to firm guidance

. The bul l et i n s al so ref lect Thornton’s interpre tation and application of GAAS and must be followed by firm auditors.

-7-¶ 64 The Gra nt elec troni c l i b ra ry s t o re s T h ornton’s audit manuals, bulletins, and var ious templates and prac tices. The Gra nt elec tr o n i c l i b rary is maintained in Oakbr ook Terr ace

. Updated audit manuals, bulletins, and other materia ls are disseminated to auditors nationally from Oa kbrook Ter

rac e as w ell. ¶ 65 Since these materia ls are disseminated nationally
, they should be avai l ab l e i n eit her forum. ¶ 66 b. Evidence ConcerningThornton Tra ining ¶ 67 Michae l J. Avenatti’s aff idavit in opposition t o the motion to dismiss provided that the final v ersions of training materia ls for instructors and participa nts of core training
, audit leade rship confe renc es, and other national audit training are stored on serve rs in O akbrook Terr ace

. ¶ 68 In sum, documentar y evidenc e both co n ce rn i n g T h o rn t o n p o licies and conc erning Thornton trainingexis ts electronic ally , and should be a cce ssible from either forum.

¶ 69 C. Motion t o Strike Testimony ¶ 70 On Dec ember 19, 2011, Koss file a notice of motion to strike portions of the aff idavit of Meg Haf er, Thornton’s human resour ces manag er in its Milwaukee office , filed in suppor t of Thornton’s motion to dismiss for forum non conve niens

. The motion conce rns para g raphs 4, 5, 6, 7, 9, 11, 12, and 13. Koss alleg es that Haf er’ s testimony in her deposition establishes that the evidenc e prese nted in these eight para graphs of Haf er’ s aff idavit “lac ks foundation, lacks persona l knowledg e, and is inadmi s sible hear say .” There fore
, Koss argues, these para g raphs must be stricke n. ¶ 71 The para g rap h s i n qu es t i o n aver red that Haf

er “re viewed” or “obtained” information prese nted i n two exhibi ts that wer e attached to her affidavit. Ex hibit 1 listed t h e ro l es , the counties of resi d en ce, the s tate that issued cer tified public acc ountant (CPA) licenses, and th e cu rr en t Thornton employ ment status of the 18 eng ag ement team members. Ex hibit 2 listed the names and the counties of residenc e of 11 Koss direc tors, office rs, and employ ees. ¶ 72 Paragraph 4 aver s, “I revie wed Gra nt Thornton rec ords perta ining to the 18 individuals whose ro l es are identified on Ex hibit 1 and deter mined that 11 of the 18 individuals are former Gra nt Thornton partne rs or e mploy ees a s indicated.” ¶ 73 Paragraph 5 aver s, “I obtained h o m e ad d re s s es for eac h of the individuals listed on Ex hibit 1 from Gra

nt Thornton’s rec ords. Ex hibit 1 acc urate ly ref lects t h e county that

corr esponds to the home addre sses for eac h individual maintain ed i n Gr ant Thornton’s

rec ords.” ¶ 74 Paragraph 6 aver s, “I revie wed publicly available information to deter mine whether eac h individual listed on Ex hibit 1 is curr ently l i ce n s ed as a CPA in Wis consin or in I llinois

. Ex hibit 1 acc urate ly ref

lects whether eac h of the individuals is curr ently licensed as a CPA in Wi sconsin or I llinois .” ¶ 75 Paragraph 7 aver s, “I revie wed information from the L exis Nexis® Ac curint® data base
to deter mine the counties in which the following individuals listed on Ex hibit 2 maintain residenc es: Trac y Malone, Cheryl Mike, and J ohn Koss, Sr. Ex hibit 2 acc urate ly ref lects the

-8-county , or count i es, included in the L exis Nexis® Acc urint® databa se wher e these

individuals li kely

maintain residenc es.” ¶ 76 Paragraph 9 aver s, “I revie wed information from www.whitepa g es.com to deter mine the home addre sses of the rema ining individuals listed on Ex hibit 2. Ex hibit 2 acc urate ly ref lects the counties corr esponding to the home addre sses for these individuals obt ai n ed from www.whitepa g es.com.” ¶ 77 Paragraph 11 aver s, “It is my understanding
, based upon inquiry
, that co p i es o f Gr ant Tho rn t o n ’s electronic work paper s and hard copy work paper s for Gra nt Thornton’s Koss annual financ ial statement audits and Gra nt Thornton’s quarte rly revie ws of Koss unaudited quarte rly financ ial statements ar e ac cessible or located in Milwauke e.” ¶ 78 Paragraph 12 aver s, “Many Gra nt Thornton training materia ls are in elec tronic form and

are acc essible on-line in Gra nt Thornton’s Milwaukee office .” ¶ 79 P ar agraph 13 aver s, “Gr ant Thornton’s curr ent audit and assura nce service s manual is

acc essed on- line and is ac cessible in the Milwauke e off ice.” ¶ 80 Haf

er testified in her deposition that she did not persona lly contac t the individuals li sted in the exhibi ts or independe ntly rese arc h the information listed. She testified that an attorney g ave her the information from t h e d at ab ases, and she revie wed that information. Haf er testified that she “wa s able to acc ess [current Thornton employee’ s] ad d re ss[ es] from our internal HR sy stem.” ¶ 81 On J anuar

y 10, 2012, the trial cour

t denied Koss’s motion to strike portions of Haf er’ s aff idavit.

¶ 82 ANALYSI S ¶ 83 Thornton appeals the t rial cour t’s dismiss al on forum non conve niens g rounds. For the followingrea sons, we find that the tria l court abuse d its discretion.

¶ 84 I . Interlocutory Appea l ¶ 85 This is an interlocutory appea l, taken pursuant to I llinois Supreme Court Rule 306 (ef f. Fe b. 16, 2011). The r

ule provides in re levant par t: “(a ) *** A party may petition for leave to appea l to the Appellate Court from the followingorder s of the trial c ourt:

*** (2) from an order of the circ uit court allowing or denying a motion to dismiss on the g rounds of

forum non conve niens ***.” I ll. S. C t. R. 306 (eff. F eb. 16, 2011). ¶ 86 Marc h 9, 2012, this court g rante d Koss’s petition fo r l ea v e t o appea l the trial court’ s dismiss al on the grounds of forum non conve niens

.

¶ 87 I I

. Forum Non Conveniens Doctrine ¶ 88 F

o r u m n o n co n ve n i en s i s an “e qu itable doctrine founded in considerat i o n s o f fundame ntal fairne ss and the sensible and eff ective administration of justice.” Langenhorst

-9-v. Norfolk Southern Ry. Co.
, 219 I ll. 2d 430, 4 4 1 (2 006); Gridley v. State Farm Mutual

Automobile Insurance Co.
, 217 I ll. 2d 158, 169 (2005). This doctrine permits a trial court to transfe r a case when a “trial i n an o t h er forum ‘would better serve the ends of justice.’ ” Langenhorst
, 219 I ll. 2d at 441 (quoting Vinson v. Allstate
, 1 4 4 I ll. 2d 306, 310 (1991)) ; Gridley , 217 I ll. 2d at 169. ¶ 89 The burden is o n th e p ar t y as k ing for the dismiss al to show that the rele vant fa ctors “strong ly favor ” transfe r. (Emphasis omitted.) Langenhorst
, 219 I l l. 2d at 443 (quoting Griffith v. Mitsubishi Aircraft International, Inc.
, 136 I ll. 2d 101, 108 (1990)) ; Vivas v. The Boeing Co.
, 392 I ll. App. 3d 644, 656-57 (2009) (in product liability case wher e plane cra sh

was in Peru with mostly Peruvian dece dents, burden was still on defe ndant Boe ing to show fac tors strong ly favor ed transfe r to Peru); W oodward v. Bridgestone/Firestone, Inc.
, 368 I ll. App. 3d 827, 833 (2006) (in product liability case wher e a vehicle acc ident was in Australia with an Australian plaintiff, burden was still on defe ndant to show fac tors strong ly favor ed transfe r to Australia)

.

¶ 90 I I I . Standard of Re view ¶ 91 “A trial court is aff orded considera

ble discretion in rul i n g o n a f o r um non conve niens motion.” Langenhorst
, 219 I ll. 2d at 441. An ap p el late court will reve rse a trial court’s decision on a forum non conve niens motion only if the “def endants have sh o wn that the circ uit court abused its discretion in balanc ing the rele vant fac tors.” Langenhorst
, 219 I ll. 2d
at 4 4 2 ; Gr idley
, 217 I ll. 2d at 169; Dawdy v. Union Pacific R.R. Co.
, 207 I ll. 2d 167, 17 7 (2003). The I llinois Supreme Co u rt has stated: “A circ uit court abuses its discretion in balanc ing the rele vant fac tors only wher e no rea sonable person would take the view adopted by the circ uit court.” Langenhorst
, 219 I ll. 2d at 442; Gridley
, 217 I ll. 2d at 169; Dawdy
, 207 I ll. 2d at 177. The issue then is not what decision we would have reach ed i f we were revie wing the fac ts on a clea n slate, but whether the trial cour t acte d in a way that no

rea sonable pe rson would.

¶ 92 IV. Preliminary I ssues ¶ 93 Be fore we conduct our full forum non conve niens analy sis, we must respond to three of Koss’s arguments that could impact our revie w. First, Koss claims that the trial court abused its discretion beca

use it overlooke d a signific ant portion of the complaint. S ec ond, Koss claims that the trial court abused its discretion beca use it did not hold Thornton to the corr ect evidentiar y burden for a motion to dismiss for forum non conve niens

. Third, Koss claims that the trial court abused its discretion when it denied a motion to strike portions of an aff idavit that was a lleg edly

not “fa ctually

sufficie nt.” We now addr ess ea ch ar gument in turn.

¶ 94 A. Scope of Koss’s Complaint ¶ 95 Koss claims that the trial court abused its discr etion beca use it did not c onsider the full scope of their complaint. First, Koss argues t hat t he trial court overlooked a portion of t he complaint and that this skewe d the trial court’s forum non conve niens analy sis. Second, Koss

-10-argues that the trial court place d an unfair burden on it to take extensive discovery and prove

up its entire case on a motion to dismiss for forum non conve niens motion. We wi l l n o t respond to Koss’s second a rgument beca

use it has no ef

fec t on our ana ly sis of whether the trial court a

bused its discretion in g rantingThornton’s motion for forum non conve niens

. ¶ 96 Koss’s co mp lain t a ll e g e s n e g lig ence , fra

ud, and neg lige nt misrepre sentations perpe trated by two distinct g roups o f p eo p l e: (1) by Thornton’s acc ountants who worke d on Koss’s eng ag ement team and direc tly cause d the alleg ed injury ; and (2) b y T h o rn t o n’s corpor ate headqua rters personne l who provided inadequate policies, proce dures, an d t ra ining to its

acc ountants, which indirectly cause d the alleg ed injury

. In g ranting T h ornton’s motion to dismiss for forum non conve niens , the trial court order overlooke d the second set of actor s, stating “the alleg ations i n the complaint surround auditing the books and rec ords in Wis c o n s in a

n d p r o v idin g r ep o r

ts a n d r ep rese ntations pursuant to eng ag ement letters executed in Wi sconsin.” ¶ 97 The ca s e at bar is compar able to Erwin v. Motorola, Inc.
, 408 I ll. App. 3d 261 (2011). Erwin involved a persona l injury action that alleg ed birth defe ct s ca u s ed by worke rs’ exposure to hazardous workingconditions. Erwin , 408 I ll. App. 3d at 262. This court he ld that the testimony of corpor ate office rs in I llinois was rele vant to injuries that took place in Texas and Arizona beca

use the corpor ate office rs cre ated policies that aff ecte d wo rk ing conditions. Erwin
, 408 I ll

. Ap p

. 3 d at 279-81. In the case at bar, Thornton corr ectly distinguishes that, in Erwin
, a small number of corpor ate office rs may have actua lly known about the hazardous working conditions, wher eas in the instant action Koss has not alleg ed that Thornton’s corpor ate personne l knew about their auditor’s alleg ed actions. Erwin
, 408 I ll. App. 3d at 279-81. ¶ 98 Howeve r, althoug h this is a distinguishing fac tor, we do not find it to b e a dis positive

one. In fac t, the court in Erwin observe d that three witnesses alleg edly had knowledg e of the risks involved, but also g ave considera ble weight to the need for 16 other corpor ate witnesses who wer e re sponsible only for c orpora

te policy making

. Erwin , 408 I ll. App. 3d at 271. ¶ 99 Thoug h Erwin may not be “on all fours” wi t h t h e ca s e at b ar , i t does illust rate the rele vance of Thornton’s corpor ate offi ce rs as witnesses. As discussed further below, Thornton’s audit manual and bulletins g overn Thornton’s auditors’ actions and are cre ated and revie wed in Thornt o n ’s Cook County headqua rters. In addition, most of Thornton’s training programs are cre ated and administered in I llinois

. Despite these fac ts, the trial court here overlooke d Koss’s alleg ations of cor porate inadequa cy

. ¶ 100 The burden rema ins with the movant to prove that the rele vant fac tors “strong ly favor [ ]” dismiss al for a more convenie nt forum. (Emphasis omitted.) Langenhorst
, 219 I ll. 2d at 442. Howeve r, even with d e f

endant’ s substantial evidentiar y burden, our supreme court has stated that “re quiring extensive investigation prio r t o d ec iding a forum non conve niens motion would defe at the purpose of the forum non conve niens motion.” Gridley
, 217 I ll. 2d at 167. In Piper Aircraft Co. v. Rey no , 454 U.S. 235, 258 (1981), the United States Supreme Court h eld that it is not nece ssary for “def endants seeking forum non conve niens dismiss al [ t o ] submit aff idavits identifying the witnesses they would call and the testimony these witnesses would provide if the t rial were held in the alternative forum.” It is unrea sonable to require

-11-a plaintiff to prove up its entire case on a motion to dismiss forforum non conve niens wher e

a def endant, with its grea

ter e videntiary

burden, ha s no such obliga tion. ¶ 101 The trial court reje cted Koss’s argument that defe ndant’s co rp o ra t e em p l o y ee s were rele vant, stating “[p] laintiff have not cited the signific ance o f any testimony potentially elicited from these individuals to further their claims of injury that took place in Milwaukee .” Howeve r, Koss’s complaint included a l i t any of alleg ations ag ainst Thornton’s corpor ate policies and training

. In a d dition, Koss’s answe r to Thornton’s motion to dismiss both named and descr ibed the rele vance of Thornton’s corpor ate personne l who may be called to testify
at trial. It wa s u n reasonable to require a plaintiff to compile further information throug h aff idavits from ea ch o f its prospec tive witnesses on a motion to dismiss for forum non

conve niens . There fore , we will dec ide this appea l on the rec ord below us. ¶ 102 Thornton argues that Koss’s alleg ations of corpor ate neg lige n ce , fra ud, and neg lige nt misrepre sentation are con clus ory and thus should be dismiss ed. Howeve r, Thornton’s argument is better suited fo r a m o tion to dismiss under section 2-615 of the C ode of Civil Procedur e with respe ct to pleading s for failure to state a claim. 735 I L CS 5/2-615 (West 2010). I n this motion to dismiss for forum non conve niens , preliminary discovery was limit ed
to forum non conve niens fac tors and it would be unrea sonable for this court to even consider T hornton’s argument that Koss has not pleade d a cause of action. Fur thermore
, the t ri al court’s order granting Thornton’s motion to dismiss for forum non conven iens did not discuss whether Koss’s claims are conclusory

. There fore
, Koss’s all ega tions ag ainst Thornton ar e not conc lusory and should have been g iven consider ation by the trial cour

t. ¶ 103 In order to revie w t h e propriety of t he trial court’s ruling, we wil l assess the motion to dismiss for forum non conve niens considering the indirect inj u ry al l egedly cause d by Thornton’s cor

porate personne l.

¶ 104 B. Thor nton’s Evidentiary

Bur den ¶ 105 Koss claims that the trial court abused its discretion beca use Thornton did not satisfy the evidentiar y burden on a forum non conve niens motion in two way s: (1) they did not provide aff idavits from witnesses stating that they would be unwilling to testif y at a trial in Cook County ; and (2) Thornton failed to proff er evidenc e that any witnesses in Wis consin are rele vant t o the trial. W e dis agree and find that the circ uit court did not abuse its discretion as it relate s to the allocation of e videntiary burdens. ¶ 106 Koss fi rs t ar gu es t h at T h o rn t on did not car ry its evidentiar

y burden to prove that witnesses would be unwilling to testify at t ri al

. As stated previously
, the burden is on the party asking for dismiss al to show that the rele vant fac tors “ ‘strong ly favor ’ ” transfe r. (Emphasis omitted.) Langenhorst
, 219 I ll. 2d at 442 (quoting Griffith
, 136 I ll. 2d at 107). In the case at bar, Thornton did not proff er any evidenc e that witnesses are unwilling to testify in Cook County or t hat I llinois would be an inconvenie n t fo rum , and Koss claims that the trial court thus abused its discretion when it held that Wis consin is a more convenie nt forum for witnesses. Howeve r, we know of no rule that bars a trial court from inferring the relative convenie nce of alterna

tive forums, based on its knowledg e of their residenc e and workplac e. ¶ 107 Koss relies on three case s to support its p ro p o s i t i o n t h at , on a forum non conve niens

-12-motion, the movant must produc e aff idavits f rom witnesses stating they will not trave l to a location. The Cradle Society v. Adopt America Network
, 389 I ll. App. 3d 73, 76 (2009); Erwin
, 408 I ll. App. 3d at 277; Brant v. Rosen
, 373 I ll. App. 3d 720, 728 (2007). Howeve r, in all three case s, the dispositi ve fac t o r was that the defe ndants did not produce names or addre sses of potential witnesses, y et they claimed that the plain tiff’s choice of forum was inconvenient. The Cradle Society
, 389 I ll. App. 3d at 76 (“[A]s the burden of proof lies with the defe ndant on this issue, we will not speculate about a wit n es s ’s wher eabouts or unwillingness wh er e [defendant] has not yet identified specific witnesses who would be unwilling to testify in I llinois .” (Emphasis added.) ); Erwin
, 408 I ll. App. 3 d at 277 (dismissing defe ndant’s forum non conve niens motion whe re defe ndant failed to ide ntify a single out-of-state witness); Brant
, 373 I ll. App. 3d at 728 (holding that the trial court could
not speculate about the prospec tive inconvenienc e of unnamed witnesses). These case s stand for the proposition that a court cannot speculate as to witnesses’ unwillingne ss to testify at t ri al where the witnesses have not yet been identified

. In the case at bar, the parties have named approximately 60 witnesses that reside clos er t o M i l wauke e than Cook County

. There fore
, the trial court was within its discretion to consider the inconvenienc e to witnesses residing in Wis consin without aff idavits from eac h witness stating his or her unwillingness to travel. ¶ 108 S ec o n d
, Ko s s argues that Thornton did not car ry its evidentiar

y burden to prove th e rele vance of out -of- state wit nesses. Koss relies on one deca des-old appe llate case, Schoon

v. Hill
, 207 I ll. App. 3d 601, 608 (1990), that require d a defe n d an t t o n ame which of its witnesses would testify

at trial and de scribe the ir testimony . In Schoon , the appe llate cour t aff irmed the trial court’s denial of a m o t i o n t o dismiss for forum non conve niens wher e defe ndant failed to indicate “which witnesses would actua lly be called to support its defe nse” and “what the testimony of potential witnesses would be, how their testimony would impact the defe nse or whether or not their depositions could be used succe ssfully at trial.” Schoon
, 207 I ll. App. 3d at 608. Howeve r, in Hernande z v. Karlin Foods Corp.
, 322 I ll. App. 3d 805, 810 (2001), our court aff

irmed a trial court’s infere nce that witnesses “who had knowledg e about the case ” could “re asonably be expected to testify at trial.” Simi larly
, in the case at bar, it can be rea sonably expected that Thornton’s employ ees on the Koss eng ag ement team are likely to testify g iven their direc t involvement in the alleg ed injury

. In addition, our supreme court has stated that “re quiring extensive investigation prior to deciding a forum non

conve niens motion would defe at the purpose of theforum non conve niens motion.” Gridley
, 217 I ll. 2d at 167. Our supreme court has held that it is not nece ssary for “def endants seeking forum non conve niens dismiss al [t o] submit aff idavits identifying the witnesses they would call and the testimony these witnesses would provide if the trial wer e held in the alterna tive forum.” Piper Aircr a

f t , 4 5 4 U.S. at 258-59. Koss also contends that 2 of Thornton’s 14 witnesses who reside in Wis consin will likely invoke the fifth amendm en t an d thus their testimony will not be rele vant. U.S. Const.
, am en d

. V. We do not find this argument persua sive and decline to hy pothesize whether prospec tive witnesses will or will not invoke their fifth ame n d m en t ri ght. There fore
, the trial court did not abuse its discretion wher e it considere d the lik el i hood that sever al Wis consin residents would testify about the Koss audits.

-13-¶ 109 C. Koss’s Motion to S trike Testimony

¶ 110 Koss claims that the trial court abused its discretion when it d en i ed a m o t i o n to strike portions of an a ffidavit that was alleg edly not “ fac tually sufficie nt.” Our colleague, Just ice J oseph Gordon, aptly explained the suff i ciency require d in aff

idavits in forum non 5

conve niens case s in Botello v. Illinois Central R.R. Co.
, 348 I ll. App. 3d 445, 450-52 (2004). “Supreme Court Rule 1 8 7
, wh ich *** specific ally perta ins to aff idavits filed in support of

forum non conve niens motions, provides in pertinent part: ‘He aring s on motions to dismiss or transfe r the action under the doctrine of forum

non conve niens shall be schedule d so as to allow t h e p ar t i es sufficie nt time to conduct d i s co v er y o n issues of fac t raised by such motions. Such motions may be supported and opposed by aff idavit. In deter

mining issues of fac t raised by aff idavits, any competent evidenc e adduce d b y t h e p arties shall also be considere d. The deter mination of any issue of fac t in connec tion with such a motion does not constitute a deter

mination of the merits of the case or any aspec t there of.’ 134 I ll. 2d R. 187. As is the case with other non-Rule 191(a) aff idavits, aff

idavits filed under Rule 187 are deter mined by a differ ent standard than the sufficie ncy of those aff idavits require d under Rule 191(a) for motions for summary judge ment (sec tion 2-1005), involuntary dismiss al (sec tion 2-619), or juri s d i ct i o n o ver a person (sec tion 2-301(b) ). See W alker v. Iowa Marine Repair Corp.
, 132 I ll. App. 3d 621, 630, 477 N.E.2d 1335, 1341 (1985); see also Haring v. Chicago & North W estern Transport ation Co.
, 103 I ll. 2d 530, 533
, 470 N.E.2d 288, 289 (1984). Both fede ral and state courts agree t h at the sufficie ncy of aff idavits filed i n support of a forum non conve niens motion is measure d by the ex tent to which it allows the trial court to balanc e the private and public interest fac tors, which will be discussed in detail below. Piper Aircraft Co. v. Reyno , 454 U.S. 235, 257, 70 L

. Ed. 2d 419, 436, 102 S. Ct. 252, 266 (1981); Moore v. AT& T Latin America Corp.
, 177 F. Supp. 2d 785, 790-91 (N.D. I ll. 2001); Gasda v. Indian Harbor Belt R.R. Co.
, No. 98 C 8371 (N.D. I ll. August 2, 1999); Countryman & Lee v. Stein Roe & Farnham
, 681 F. Supp. 479, 483-84 (N.D. I ll. 1987); W alker
, 132 I ll. App. 3d at 630, 477 N.E.2d at 1341; Haring
, 103 I ll. 2d at 533, 470 N.E.2d at 289. These case s do not require t h at t he information contained in the aff idavit ne cessa

rily be based upon first-hand knowledg e,

as long as the aff

idavits are fac tually sufficie nt. See W alker
, 132 I ll. App. 3d at 630, 477 N.E.2d at 1341; see also Haring
, 103 I ll. 2d at 533, 470 N.E.2d at 289. The courts agree that, base d up o n t h e differ ence in the stag e of litigation which invokes the issue of summary judgme nt and that which invokes forum non conve niens , an af fidavit filed in support of a forum non conve niens motion require s less specific ity and less detail. S ee Piper Ai rcraft Co. v. Reyno , 454 U.S. 235, 258, 70 L . Ed. 2d 419, 437, 102 S. Ct. 252, 266 (1981) (finding that at the forum non conve niens stag e of the litigation some leewa y in specific ity of an aff

idavit must be g iven); W

alker
, 132 I ll. App. 3d at 630, 477 N.E.2d

J ust ic e J ose ph Gor don pas sedaway on J une 26, 2012

. 5

-14-at 1341 (holding that so l o n g as the aff idavit can show that information and witnesses

nece ssary to the trial are located in c ounties far more convenie nt to the action, no more specific ity is require d). This distinction which the courts have drawn betwee nforum non

conve niens and summ ar y j udg ment motions as to specific ity and level of detail is consistent with the fac t that the aff idavits filed under Rule 187 ar e o m i t t ed from the prer equisites s et fo rt h in Rule 191(a)

. 210 I ll. 2d R. 191(a)

. Acc ording ly
, we are not convince d that aff

idavits should be considere d insufficient even if they contain elements of hea rsay

. Piper Aircraft Co. v

. Reyno , 454 U.S. 235, 257, 70 L . Ed. 2d 419, 436, 102 S. Ct. 252, 266 (1981); W

alker
, 132 I ll. App. 3d at 630, 477 N.E.2d at 1341; Haring
, 103 I ll. 2d at 533, 470 N.E.2d at 289; ac co rd B utcher v. Gerbe r Products Co.
, No. 98 CI V 1819 (RWS ) (S.D.N.Y. August 3, 1998) (findingthat one aff idavit including a

g ener al
statement of the nature of witness testimony is sufficie nt and the p l ai n t i ff need not p ro cu re an aff

idavit from eac h individual witness outlining his or her specific testimony).” Botello , 348 I ll. App. 3d at 450-52. ¶ 111 In Botello
, th e risk manag er for the defe ndants railroa d and railroa d company filed an aff idavit in support of the defe ndants’ moti o n to dismiss based on forum non conve niens

. Botello , 348 I ll. App. 3d at 447. The aff idavit se t f

orth the names and addre sses of ra ilroad employ ees, police office rs at the s cene of t he accident, respondingmedical pe rsonnel, and the location of employ

ment rec ords. Botello
, 348 I ll. App. 3d at 453. The court held that “the
contents of the *** aff

idavit suffic i en t l y demonstrated that there wer e witnesses and information nece ssary to the trial of the case that could be more convenie ntly produce d if the

case was tried in the sug g ested a lternate forum.” Botello , 348 I ll. App. 3d at 453. ¶ 112 W

alker conce rned an injury o f a shi p eng ineer while working in the s hip eng ine room. W alker
, 132 I ll. App. 3d at 622. The defe ndant filed an aff idavit in support of its motion to dismiss for

forum non conve niens , which set forth the names and counties of residenc e of coworke rs and the port eng ineer
, as well as the location of employ ment rec ords and company repr esentatives. W

alker
, 132 I l l

. App. 3d at 630. The court held that “The contents of the motion and aff

idavit are sufficie nt to show there fore that information and witnesses

nece ssary to the trial are located in c ounties far more convenie nt to this action than Cook.” W alker , 132 I ll. App. 3d at 630. ¶ 113 Haring conce rned the injury of a ra i l ro ad em p l oy ee. Haring
, 103 I ll. 2d at 531. The defe ndant ra ilroad’s a ffidavit in support of its motion to di smiss on t he basis of forum non

conve niens set forth the names and addre sses of railroa d cowor kers, supervisors, and other witnesses of the acc ident. Haring
, 103 I ll. 2d at 532-33. The court held that “[t] he contents of [defendant’ s] aff

idavit are sufficie nt to demonstrate that there are witnesses nece ssary to the t rial of this case whose testim o n y ca n be more convenie ntly produce d [i n the alternate forums].” Haring
, 103 I ll. 2d at 533. Howeve r, the plaintiff’s aff idavit copied a list of more than 250 names of the def endant’ s manag ement employees a nd asser ted that some m ay be witnesses. Haring , 103 I ll. 2d at 533. The cour t stated this affidavit wa s deficie nt. Haring
, 103 I ll. 2d at 533. ¶ 114 L ike the fac tually sufficie nt aff idavits in Botello
, W

alker
, and Haring
, Haf

er’ s aff idavit
sets forth specific information on the locations of specific Thornton and Koss personne l and specific documents. Un li k e the defic ient plaintiff’s aff idavit in Har ing, Haf

er’ s aff idavit does

-15-not prese nt mere ly “g ener al alleg ations.” Haring
, 103 I ll. 2d at 532. Thoug h Ex hibit 1

attache d to Haf

er’ s aff idavit did not include the names of the 18 eng ag ement team members, their names wer e easily asce rtainable in other evidenc e in support of the motion to dismiss

. ¶ 115 Thoug h Haf

er d i d n o t conduct orig inal rese arc h on the information prese nted in her aff idavit, she revie wed and prese nted evidenc e, including the locations and roles, of specific potential Thornton and Koss witnesses. Fur thermore
, Haf

er’ s deposition testimony does not

nece ssarily contra dict or undermine the statements in he r aff idavit. T he statements that she “re viewed ” o r “obtained” the information in question encompa ss revie wing information g iven her by an attorne y

. ¶ 116 There fore
, we hold that the trial court did not abuse i t s d i s cr et i o n i n d enying K oss’s motion to s trike portions of Ha fer ’s af fidavit.

¶ 117 V. Koss’s Choice of For um ¶ 118 Be fore weighing the re l ev an t fa ctors, a court must first decide how m uch defere nce to g ive to a plaintiff’s choice of forum. Langenhorst
, 219 I ll. 2d at 448 (t h e s upreme court deter mined the appr opriate a

mount of defe renc e, bef

ore w eighing the rele vant fa ctors). ¶ 119 In the case at bar, the trial court did not acc ord rea sonable defe renc e to Koss’s choice of forum. The plaintiff’s choice of forum is a “sub s t anti al fac tor” in deciding a forum non

conve niens motion. Dawdy
, 207 I ll. 2d at 172; Griffith
, 136 I ll. 2d at 106. “Thus, when a plaintiff chooses his home forum or the site of the acc ident or i n j ury , i t i s reasonable to

assume that the choice of forum is convenie nt.” Gridley
, 217 I ll. 2d at 170; Dawdy
, 207 I ll. 2d at 173. ¶ 120 The trial court held, and Thornton argues, that Koss’s choic e o f fo rum deser ves less defe renc e beca

use it is neither Koss’s home forum nor the site of its injury

. Although Cook County is not Koss’s home forum, the alleg ed inadequate policies, proce dures, and training discussed above wer e mostly cre ated, revie wed, and approve d in Cook County

. Thus, Cook County is the site of a substantial por tion of the acts that g ave rise to Koss’s injury

. Koss’s choice of forum should be acc orded standard defe renc e and, there fore
, the trial court’s application of “ less defe renc e” w as improper

.

¶ 121 VI . Private Intere st Fac tors ¶ 122 Th e I l l i n o i s S upreme Court has held that a court must consider both “the private a nd public interest fac tors” in deciding aforum non conve niens motion. Langenhorst
, 219 I ll. 2d
at 443; Gridley
, 217 I ll. 2d at 170; Dawdy
, 207 I ll. 2d at 172-73. The private interest fac tors include: “ ‘(1) the convenie nce of the parties; (2) the relative ease of acces s t o s o u rc es of testimonial, documentar

y , and rea l evidenc e; and (3) all other prac tical problems that make trial of a case easy , expeditious
, and inexpensi ve ***.’ ” Langenhorst
, 219 I ll. 2d at 443 (quoting First American Bank v. Guerine
, 198 I ll. 2d 511, 517 (2002)) ; Gridley
, 217 I ll. 2d at 170; Dawdy , 207 I ll. 2d at 172. ¶ 123 First, the convenie nce of the parties does not weigh in favor of transfe r to Wi scon s i n

. Wit h re s p ec t t o this fac tor, “the defe ndant must show that the plaintiff’s chosen forum is

-16-inconvenient t o t h e defe ndant.” Langenhorst
, 219 I ll. 2d at 450. “[T] he defe ndant cannot

asser t that the plaintiff’s chosen forum is inconvenient to the plaintiff.” Langenhorst
, 219 I ll. 2d at 445. ¶ 124 One c onsideration is Thornton’s corpor ate headqua rters. Vivas , 392 I ll. App. 3d at 658 (location of defe ndant’s headqua rters in I llinois weighed ag ainst the situs of the plane cra sh in Peru); Erwin
, 408 I ll. App. 3d at 276 (locati o n o f defe ndant’s headqua rters and alleg ed

source of safe ty policies weighed ag ainst plaintiffs’ residenc es in Arizona and Texas). Thornton’s head qu art er s is in Chicag o, I llinois

. Whil e Gridley states that the defe ndant’s principal place of business is “not dis p ositive” and “only one fac tor to be considere d” ( Gridley
, 21 7 I ll. 2d at 173), this case is distinguishable. Gridley conce rned the defe ndant insurance company ’s compliance with state automobile salvag e laws. Gridley
, 217 I ll. 2d at 174. The defe ndant’s headqua rters was the only connec tion to I llinois
, and the headqua rters

was unconnec ted to the litigation, since the def endant “ handle[d] compliance with sa lvag e laws on a state-by-state basis.” Gridley
, 217 I ll. 2d at 174. The I llino i s S up re m e Court dismiss ed on the basis of

forum non conve niens

. Gridley
, 217 I ll. 2d at 161. Unlike Gridley
, Thornton’s cor

porate headqua

rters is connec ted to the litigation as the source of firm-w ide policies and a

uditor training

. ¶ 125 Fur

thermore
, althoug h most witnesses conce rning the Koss audit eng ag ements reside in Wis consin, sever al witnesses conce rning Thornton’s policies and auditor training reside in I llinois

. Koss h as av er re d that its direc tors are not inconvenienc ed by litigating in Cook County

. It is unclea

r whether Thornton’s Wis consin witnesses would be inconvenienc ed by comingto Cook Count y . The distance alone is not unrea sonable or inc onvenient. ¶ 126 Cook County is less than 1 0 0 miles from the courthouse in Milwaukee County . Whil e there is no bright-line rule of inconvenient distances, Thornton cites I llinois Supreme Court

case s holding that distances of 100 miles a nd less wer e still inconvenient. Peile v. Skelgas, Inc.
, 163 I ll. 2d 323, 341 (1994) (100 miles from the site of the acc ident was inconvenient) ; W ashington v. Illi nois Power Co.
, 144 I ll. 2d 395, 402 (1991) (30 mil es b et we en counties was inconvenient). However
, in Peile
, “virtually none of the wit nesses or other s o u rce s of proof [were] located in [t he plaintiff’s chosen county]

. ” P ei l e , 1 6 3 I ll. 2d at 340. Unlike Peile
, sever al witnesses for Thornton’s firm-wide policies and training are located in I llinois
, closer to Chicag o than Milwaukee

. In W ashington
, only the co rporate defe ndant was a resident of plaintiff’s chosen county , but i t was also a resident of the other county in question. W

ashington
, 144 I ll. 2d at 400. Ag ain, the prese nt case is also distinguishable from W ashington beca

use sever al witnesses reside in I llinois
, closer to Chicag o than Milwaukee

. ¶ 127 Second, the relative ease o f ac ce s s t o s o urce s of testimonial, documentar y and re al evidenc e does not require transfe r to Wis consin. Koss aver red that it would try to ensure that the company ’s employ ees and members of its board would be available to testify in Cook County

. Employ ees of Koss and Thornton ca n be compe lled to te stify in e ither state. I ll. S. Ct. R. 237(b) (ef

f. J uly 1, 2005). See The Cradle Society
, 389 I ll. App. 3d at 77 (“O hio repr esentatives employ ed by [defendant] are subject to compulsory proce ss in I llinois ”). Thornton employ ees identified as potential witnesses reside in both I llinois and Wis consin. This case is thus distinguishable from Satkowiak v. Chesapeake & Ohio Ry. Co.
, 106 I ll. 2d 224 (1985). In Satkowiak
, all but one of the witnesses resided in one state, and that single

-17-witness was not an employ ee of any of the parties. Satkowiak
, 106 I l l

. 2 d at 229. The

possibili ty of employ ees leaving the company and eludi n g compulsory proce ss favor ed dismiss al in that case

. Satkowiak
, 106 I ll. 2d at 230-31. In the case at bar, wher e employ ees reside in both states, this conc ern doe s not favor one forum or the other. ¶ 128 The documentar y evidenc e exis ts mainly elec tronically and, as such, is available in either fo ru m

. Wit h respe ct to hard- copy documents, the location of documents and rec ords h as become a les s s i gn ificant fac tor in forum non conve niens analy sis in the modern ag e of email, Interne t, telefa

x , copying machines and worldwide delivery service s, since they can now be e asily

copied a nd sent. W

oodward , 368 I ll. App. 3d at 834. ¶ 129 L astly
, the court must consider all the other “ ‘pra ctical problems that make trial of a ca se easy , expeditious
, and inexpensive.’ ” Langenhorst
, 219 I ll. 2d at 443 (quoting Guerine
, 198 I ll. 2d at 517). Both Koss’s and Thornton’s attorney s maintain office s in Cook County

. The I llinois Supreme Court has state d that, while little weig ht should be acc orded this fa ctor, a court may still consider it in the forum non conve niens analy sis. Dawdy
, 207 I ll. 2d at 179; W oodward , 368 I ll. App. 3d at 836. ¶ 130 In sum, the private inter est fac tors do not favor e ither par ty

.

¶ 131 VI I . Public Intere st Fac tors ¶ 132 When deciding a forum non conve niens motion, a court must also consider t h e p ub lic interest fac tors. These fac tors include: “(1) the interest in deciding controve rsies locally ; (2) the unfairne ss of imposing trial expense and the burden of jury duty on residents of a forum that has littl e connec tion to the litigation; and (3) the administrative difficulties prese nted by adding litigation to alre ady cong ested court dockets.” Lange n h orst , 219 I ll. 2d at 443-44 (citing Guerine
, 198 I ll. 2d at 516-17); Gridley
, 217 I ll. 2d at 170; Dawdy
, 207 I ll. 2d at 173. ¶ 133 First, Koss argues that Cook County has a signific ant interest in deciding the case at bar l o ca l ly

. Our supreme court has held that a forum has a signific ant interest in dec i d i n g a contr o v er s y locally wher e a cause of action that occur s within its border s g ives rise to an injury

. Dawdy
, 207 I ll. 2d at 183; see also Smith v. Jewe l Food Stores, Inc.
, 374 I ll. App. 3d 31, 34 (2007) (holding that Kenda ll Count y had a signific ant interest in a dispute wher e an automobile acc ident occur red within its borders). F urthermor e, a f orum has “an interest in ensuring the safe ty of the products that its corpor ations build and ship throug hout the world, particula rly when one of those corpor ations has its world headqua rters here .” Vivas
, 392 I ll. App. 3d at 661. Whil e the location of a corpor ate headqua rters is not a “dispositive” fac tor, it is st ill a fac tor we ma

y consider. Gridley , 217 I ll. 2d at 173. ¶ 134 In the case at bar, Koss alleg es t h at T h o rn t o n ’s co rp o ra t e p er s o n n el
, who ar e headqua rtere d in Cook County
, are responsible for inadequate poli ci es , p roce dures, and training

. I f these fac tual alleg ations are proven at trial, a substantive portion of the acts that g ave rise to Koss’s injury will have occur red within Cook County

. There fore
, like in Jewe l Food
, wher e a county had signific ant interest in an acc ident that occur red within its border s, Cook County has a signific ant interest in deciding the case at bar. Jewe l Food
, 374 I ll. App. 3d at 34. In addition, like in Vivas
, wher e the United S tates had an int ere st in ensuring the quality of products manufa cture d by a corpor ation headqua rtere d in the United States, in the

-18-ca s e at bar, Cook County has an interest in ensuring the quality of service s offe re d b y a

corpor ation headqua

rtere d in Cook County

. Vivas
, 392 I ll. App. 3d at 661. Thornton argues that Milwaukee County also has a simil ar interest in deciding this case beca use the audits at i s s u e took place within its border s and beca use the auditors are licensed by the S t at e o f Wis consin. Although Thornton’s argument illust rate s that Milwaukee County has an interest i n this controve rsy , it does not satisfy Thornton’s burden to show that the fac tor strong ly favor s dismis sal to an alter native for um since both jurisdictions are a ffe cted. ¶ 135 Second, Koss argues that, beca use Cook County has a signific ant connec tion to the case at bar, it is fair to impose trial expenses and the burden of jury duty on resi d en t s of Cook County

. We agree

. Our supreme court has instructed that the residents of one county “should

n o t be burdene d with jury duty” wher e the events at issue occur red in another co u n t y

. Dawdy
, 207 I ll. 2d at 183. Howeve r, as discussed above, a signific ant portion of the alleg ed
events took place at Tho rn t on’s headqua rters in Cook County

. There fore
, it is fair and

rea sonable to impose both trial expen s es and the burden of jury duty on residents of Cook County

. ¶ 136 Third, Koss argues that Cook County resolves civil suits faster than Milwaukee County and, thus, an analy sis of court cong estion fav o rs C o ok County

. We agree , althoug h our

s up re m e court has held t hat “[ w]hen deciding forum non conve niens issues, the t rial cour t is in the better position to assess the burdens on its own docket.” Langenhorst
, 219 I ll. 2d at 451. In the case at bar it is unref uted that the circ uit court of Cook C ounty disposes of its

case s faster th a

n M ilw a ukee County courts. The trial court here disreg ards this unref uted fac t. Howeve r, there is no evidenc e p re s ented by either party compar ing the courts’ docket of

case s and its aver ag e length of time to trial. ¶ 137 Finally
, Koss argues that choice of law is not an important consideration on a motion to dismiss for forum non conve niens

. We agree

. Although choice -of- law issues are a fac tor to consider, they are not usually dispositi ve. W

oodward , 368 I ll. App. 3d at 837. “An I llinois
court is competent to deter mine which law a

pplies to this controve rsy and to a pply the law of [W isconsin] if nece ssary .” W oodward
, 368 I ll. App. 3d at 837. In the case at bar, the trial court did not addre ss choice of law in its order grantingThornton’s motion to dism iss. ¶ 138 In sum, we find that public intere st factor s favor I llinois as a pr oper f

orum.

¶ 139 VI I I . Ba lancing ¶ 140 In deciding a forum non conve niens motion, the trial court “must balanc e the private and public inte re s t [ ]” fac tors. Dawdy
, 207 I ll. 2d at 172; Gridley
, 217 I ll. 2d at 169-70. The balanc ing should be done “without emphasizing any one fac tor.” Langenhorst
, 219 I ll. 2d at 443; Gridley
, 217 I ll. 2d at 169; Dawdy
, 207 I ll. 2d at 180. “On review, the trial court’s decision will be reve rsed only if *** the court abused its discretion in balanc ing the rele vant fac tors.” Dawdy
, 207 I ll. 2d at 172; Griffith
, 136 I ll. 2d at 106. The I llinois Supreme Court has stated: “A circ uit court abuses its discretion in balanc ing the rele vant fac tors only wher e

no rea sonable pe rson would t ake the view adopted by the circ uit court.” Langenhorst , 219 I ll. 2d at 442; Gridley , 217 I ll. 2d at 169; Dawdy , 207 I ll. 2d at 177. ¶ 141 In C

h u n g v. A d

vocate Health Care
, 336 I ll. App. 3d 789, 790-91 (2002), our cour t

-19-reve rsed a dismiss al based on forum non conve niens in a medical malprac tice case brought

in Cook County

. Fa ctors favor ing the alterna te forum included: the alleg ed malp ra ct i ce

occur red in the alternate forum, and 11 occur renc e witnesses, the plaintiffs, and most of the d ef en dants resided in the alternate forum. Chung
, 336 I ll. App. 3d at 794-95. Fa ct o rs favor ing Cook County

included: the hospital wher e the malpr actice occur red maintained a residenc e in Cook County ; the hospital the plaintiff later transfe rre d to was in Cook County ; two occur renc e wi t n es s es and “a number of phy sicians” from the transf er hospital resided in Cook Count y ; and other witnesses we re spr ead a cross va rious other c ounties and states. Chung
, 336 I ll. App. 3d at 795. This court held that, while both counties had ties to the case , the private and public interest fac tors did not strong ly favor the alternate fo ru m and we

reve rsed the trial court’s dismiss al on g rounds of forum non conve niens

. Chung
, 336 I ll. App. 3d at 795-96. ¶ 142 The case at bar is simil ar to Chung i n t h at t h er e are ties to both Cook County and the alternate forum; howeve r, the fac tors do not strong ly favor the alternate forum. First, Koss’s choice of forum deser

ved standard defe renc e beca use actions causing the alleg ed injury took place in part at Thornton’s headqua rters in Cook County

. Second, the private interest fac tors do not favor transfe r b ec au s e witnesses are sprea d betwee n Wis consin and I llinois and documentar

y evidenc e exis ted elec tronically

. Third, the public interest fac tors do not favor Thornton bec ause I llinois has a significant intere st in the controve rsy and, thus, it is fair to impose trial expenses and jury duty on I llinois residents. As the private a nd public interest fac tors did not weig h strong ly in favor of

transfe r and since the trial cour t did not consider

a signific ant amount of Koss’s alleg ations in its complaint, we find the trial court abused its discretion in transf

err ing this ca se.

¶ 143 IX. Conclusion ¶ 144 Fo r t h e fo re go i n g rea sons, we reve rse and rema nd the trial court’s order gra n t i n g Thornton’s motion to dism iss on forum non conve niens grounds.

¶ 145 Reverse d and re manded.

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