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California Attorney General Joins the NorVergence Venue Fray
Karlen J. Reed, Assistant Attorney General Utilities Division, Office of the Attorney General, for the State of Massachusetts, has confirmed 13 states have filed an amici brief in the Ohio 8th District state Court of Appeals on March 16, 2005 challenging Preferred Capital's enforcement of NorVergence contracts using the floating forum selection clause. March 21 California Attorney General Bill Lockyer made it 13 states joining the Amici Curia; Connecticut, Florida, Illinois, Louisiana, Massachusetts, Michigan, New York, Ohio, Pennsylvania, Rhode Island, South Dakota and Texas “in support of the appellees.” The case involves the Equipment Leasing Association stance that the choice of venue is left up to the assignee of the “Equipment Leasing Agreement” and the specific location of jurisdiction did not need be agreed upon in advance by both parties (( further, that the location (cause of action )is not where the contract was signed, but that chosen by the assignee).) This has to do with "venue," then, the jurisdiction when the case may be held. It is also often called a “floating forum,” meaning the “assignee” may choose almost anywhere ( most likely their headquarter location, or can be assigned again.) In the paragraph before the conclusion of the brief by Karlen J. Reed, AAG, Scott D. Schafer, AAG, and Geoffrey G. Why, of the Massachusetts Office of the Attorney General, Public Protection Bureau, Boston Massachusetts, it is stated, " Preferred Capital will experience minimal financial harm if this court affirms the lower courts' decisions, especially compared to the harm that Appellees will fact otherwise. Even if Preferred Capital cannot sue Appellees in Ohio, Preferred Capital will not be denied its day in court. Instead of selecting a forum that would be unreasonable to the Appellees, Preferred Capital will merely need to re-file its action in the jurisdiction where Appellees reside." It does appear this ruling has been of “financial harm, “ as it appears Preferred Capital leases have been assigned to Bank of Huntington as NorVergence lessees report being contacted by the bank that they have taken over the “contract” for Preferred Capital. Bank of Huntington is a major creditor of Preferred Capital. The fact that the actual location of venue was not agreed by both parties should be of concern and not the cost to either party. In many states, even agreed upon venue can be changed due to circumstances, and is up to the court to rule upon. 12-state amici brief: http://leasingnews.org/PDF/AG_Amic_%20Brief-final.pdf Howard Wayne, Deputy Attorney General for California Attorney General Bill Lockyer |
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