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Foley & Lewis Racing, Inc. v. Burling

2008 WL 544655 (N.J. Super. App. Div. 2008) (Unpublished)

CONTRACTS; CHOICE OF FORUM — Where a commitment is followed by an agreement, if the agreement contains a choice of venue clause, then the commitment will be bound by that provision.

A company that promoted drag races signed a commitment with an advertiser and later entered into an agreement with the advertiser for the placement of advertisements on the company’s racing cars in exchange for financial sponsorship. The agreement contained a choice of forum provision under which any legal disputes were to be heard before a federal court located outside of New Jersey. The company later sued the advertiser for failure to make payments. The advertiser motioned for a change of venue to the court specified in the agreement. The company contended that the dispute centered on the commitment which was a separate contract from the agreement and did not contain a choice-of-venue clause. The Court found that treating the agreement and the commitment as different contracts made no sense because to do so would mean allowing the company to charge the advertiser twice for advertisements placed on the company’s cars. It also found that on the basis of the text of both contracts, the actual agreement superseded the earlier commitment. The Court also rejected the company’s argument that the choice-of-forum provision did not apply because the advertiser signed the agreement in his capacity as an official for his firm, and not as an individual. The Court found that as an official of the firm, the advertiser was closely related enough to the firm to have standing to enforce the choice of forum clause, noting that courts often defer to the forum choice requested by a party bringing suit but that such deference is not appropriate when choice of law is set forth in a contract. Here, the Court found that there was no compelling reason or principle of fairness that would have justified not transferring the matter to the jurisdiction specified in the agreement.


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