author: SHADUR, District Judge.

text:
    AM INTERNATIONAL LEASING CORPORATION, Plaintiff, v. NATIONAL COUNCIL OF NEGRO WOMEN, INC., Defendant.
    No. 85 C 4780.
    United States District Court, N.D. Illinois, E.D.
    Jan. 31, 1986.
    Nathaniel Baccus III, Baccus, James & Padgett, Washington, D.C., Ronald S. Sam-uels, Washington, Kennon, Hunter & Sam-uels, Chicago, Ill., for defendant.

      Alan J. Lirtzman, Parker F. McMahan, Jr. & Assoc., Ltd., Chicago, Ill., for plaintiff.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

AM International Leasing Corporation (“Leasing”) sues National Council of Negro Women, Inc. (“NCNW”) to recover $87,-324.93 in deficiencies on two defaulted office-equipment leases. NCNW initially filed an alternative motion to dismiss or transfer. This Court’s October 28, 1985 memorandum order (the “Order”) denied that motion, rejecting all grounds asserted by NCNW and holding (Order at 1-2):

1. Venue was proper in the Northern District of Illinois because Leasing’s principal place of business is here (see 28 U.S.C. § 1391(a)).
2. Nothing supported NCNW’s contention that the choice-of-law provisions of the Lease Agreements — which deem each to have been made at Palatine, Illinois and choose Illinois law to govern the validity, performance and construction of the Agreements — were invalid contracts of adhesion or improper attempts to limit jurisdiction to a particular forum.
3. No adequate factual showing supported NCNW’s request for transfer under 28 U.S.C. § 1404(a) (“Section 1404(a)”).
4. NCNW’s labeling of Shaw Industries, Inc. (“Shaw”) as an indispensable party was “arrant nonsense.”

NCNW now renews its motion, reasserting as well the failure to join Shaw as an allegedly indispensable party. For the first time it also claims the absence of personal jurisdiction. For the reasons stated in this memorandum opinion and order, NCNW's renewed motion suffers the same fate as the original.

Facts

NCNW’s national headquarters are in Alexandria, Virginia (Height 2d Aff. ¶ 1), and it is “either incorporated or registered to do business” in Washington, D.C., Virginia, New York, Georgia, California, Louisiana and Mississippi (id. 113). Some time before December 16, 1980 NCNW established an economic development project in Mississippi (the “Factory Project”), funded by various federal agencies (Gavin Aff. 112). Staff for the Factory Project placed bid solicitations for office equipment (the “Equipment”) in the Jackson, Mississippi daily newspaper {id. HU 3, 5). Among the published specifications was one obligating the bidders to provide financing for the Equipment {id. II6).

Two of the successful bids came from AM Varityper (“Varityper”) and AM Multi-graphics (“Multigraphics”) {id. 11117-8). Details of the transactions were negotiated at meetings between Factory Project Director Vern Gavin (“Gavin”) and local salespersons of Varityper and Multigraph-ics. All those meetings took place at NCNW’s Mississippi factory {id. 119).

Financing of the Equipment was accomplished via two 60-month Leases, the 1980 Lease Agreement (Ex. A) covering the Mul-tigraphics items and the 1981 Lease Agreement (Ex. E) covering the Varityper items. In each instance the lessor was Leasing, not Varityper or Multigraphics.' NCNW applied for the leases by mailing application forms to Leasing’s Illinois offices for approval, and the Lease Agreements were approved and “executed” there (Fry Aff. ¶¶ 3-4).

Forms related to the 1980 Lease Agreement listed, in handwriting or typewriting, the “Division” or “Sales Division” as Multi-graphics, while the corresponding reference in the 1981 Lease Agreement and related documents was to Varityper (Exs. A, B, E, F; NCNW R.Mem.Ex. B at 5, 7). But as already stated, all forms used in connection with the transactions — including the Lease Agreements themselves — specifically identified the lessor as Leasing, headquartered in Palatine, Illinois. And each Lease Agreement further specified:

12. CHOICE OF LAW. This Lease shall be deemed to have been made in Palatine, Illinois regardless of the order in which the signatures of the parties shall be affixed, and the validity, performance and construction of this Lease shall be governed by the laws of the State of Illinois.

Once the Equipment was installed, payments were to be made to Leasing in Illinois as provided in each Lease Agreement (Exs. A, E):

2. LEASE TERM AND PAY-MENTS_Lessee agrees to pay to Lessor (at its principal place of business in Illinois) the total number of lease payments specified....

Whatever payments were made complied with that requirement (Fry Aff. 115).

NCNW fell behind in its payments, apparently because its federal funding dried up. Gavin “notified all of the companies with leases of this situation” (Gavin Aff. 1113) and had “numerous telephone conversations” with Leasing during 1982 about “late rental payments and possible settlement of the dispute” (Leasing Mem. 4). Leasing eventually repossessed the Equipment and on January 11, 1983 wrote NCNW, to Gavin’s attention, announcing a forthcoming sale of the Equipment. That sale took place two weeks later, leaving the deficiencies Leasing now seeks to recover.

Meanwhile, a year earlier, NCNW had sold the Factory Project’s assets to Shaw, including (NCNW R.Mem.Ex. B at 1):

all right, title and interest in and to any and all furniture, equipment, leases, deposits, contracts ... including but not limited to each and every item of equipment, furniture, lease as described on the copies of the leases, purchase agreements, furniture and equipment listing, attached hereto and incorporated herein by this reference.

Attached to the NCNW-Shaw agreement were some of the documents relating to the Lease Agreements (but not the Lease Agreements themselves), as well as a listing of all property to be transferred. That listing (NCNW R.Mem.Ex. B at 17, 19) clearly shows the “owner” of the Equipment as “AM Leasing, Inc.” or “AM Leasing Corporation.”

Some time before Leasing foreclosed on the Equipment, Shaw attempted to negotiate assumption of NCNW’s leases. However, no agreement was reached with Leasing (Fry Aff. H 7).

Personal Jurisdiction

Illinois personal-jurisdiction law provides the analytical framework here, for as Nelson, 717 F.2d at 1123 put it:

A federal court has personal jurisdiction over the parties in a diversity action only if a court in the state in which the federal court is sitting would have jurisdiction.

Since Green v. Advance Ross Electronics Corp., 86 Ill.2d 431, 436-37, 56 Ill.Dec. 657, 660, 427 N.E.2d 1203, 1206 (1981) and Cook Associates, Inc. v. Lexington United Corp., 87 Ill.2d 190, 197-98, 57 Ill.Dec. 730, 733, 429 N.E.2d 847, 850 (1981), it is plain the test for personal jurisdiction in Illinois has two steps (see State Security Insurance Co. v. Frank B. Hall & Co., 530 F.Supp. 94, 96-97 (N.D.Ill.1981)):

1. Courts must first look to Illinois’ long-arm statute, Ill.Rev.Stat. ch. 110, ¶ 2-209 (“Section 2-209”), to determine whether it provides for jurisdiction. If the answer is no, the analysis is at an end.
2. Only if the statutory answer is affirmative must a court go on to consider whether assertion of personal jurisdiction in the particular case would violate the Due Process Clause under the “minimum contacts” test of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) and its progeny.

Instead the parties have completely bypassed statutory analysis, focusing entirely on the constitutional question. Virtually all the cases cited in the briefs were decided before Green and Cook Associates (under the earlier regime of Nelson v. Miller, 11 Ill.2d 378, 389, 143 N.E.2d 673, 679 (1957), the scope of the long-arm statute had been thought coextensive with the reach of minimum-contacts analysis). See Petty v. Cadwallader, 135 Ill.App.3d 695, 697, 90 Ill.Dec. 518, 520, 482 N.E.2d 225, 227 (4th Dist.1985).

Section 2-209 provides in relevant part:
(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person ..to the jurisdiction of the courts of this State as to any cause of action arising from the doing of such acts:
(1) The transaction of any business within this State;
******
(c) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon this Section.

Thus the first question to be answered is whether the NCNW-Leasing transactions were “the transaction of any business within this State” by NCNW. That determination amounts to weighing “[a] wide variety of factors” (First National Bank of Chicago v. Boelcskevy, 126 Ill.App.3d 271, 274, 81 Ill.Dec. 380, 383, 466 N.E.2d 1182, 1185 (1st Dist.1984)) to arrive at what is more a factual finding than the fairness determination mandated by International Shoe. Nonetheless Green and Cook Associates are new enough so that courts must perforce rely to some extent on earlier decisions, at least as to the list of factors to be considered and the weight to be given them. See, e.g., Boelcskevy, 126 Ill.App.3d at 274-75, 81 Ill.Dec. at 383-84, 466 N.E.2d at 1186-86.

Here the parties dispute which of two cases, both dealing with non-Illinois-citizen defendants, this case resembles more closely: O’Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir.1971) (finding jurisdiction) or Telco Leasing, Inc. v. Marshall County Hospital, 586 F.2d 49 (7th Cir.1978) (finding no jurisdiction). In the best tradition of Edward Levi’s Introduction to Legal Reasoning, a factual comparison of the two cases becomes profitable.

O’Hare presented the following factors (437 F.2d at 1175):

1. Defendant initiated lease negotiations by phoning the Illinois lessor’s Chicago office.
2. Defendant traveled to Illinois to negotiate part of the lease.
3. Execution of the lease took place in Illinois (that is, the lessor was the last to sign).
4. Payments were to be sent to Illinois.
5. In addition to the lease, defendants furnished a guaranty, which provided it was to be construed according to Illinois law.

In Telco the factors were (586 F.2d at 51):

1. Defendant negotiated with two non-Illinois manufacturers to purchase equipment.
2. Those manufacturers had no organizational relationship to the Illinois lessor.
3. Contact with the lessor was initiated by the manufacturers and was directed to the lessor’s agent in Texas.
4. That agent sent lease forms to defendants in Mississippi and directed they be returned to him, along with an initial payment, in Louisiana.
5. Defendant sent copies of the lease to the lessor in Illinois.
6. In the lease was a clause providing the lease was binding “when accepted by lessor in the State of Illinois.”
7. There was also an Illinois choice-of-law clause.
8. For some two years thereafter, defendants communicated with lessor in Illinois by mail and telephone.

In finding no personal jurisdiction, Telco distinguished O’Hare because the latter’s out-of-state defendant initiated the whole lease transaction (586 F.2d at 52). In Telco the lease was a financing method arranged by a seller of goods on his own initiative. That distinction was also a major factor in Northern Trust Co. v. Randolph C. Dillon, Inc., 558 F.Supp. 1118, 1120 (N.D.Ill.1983), where the lease was also a form of financing arranged by an out-of-state seller for an out-of-state defendant, and the seller had no organizational relationship to the Illinois lessor.

Here the facts fall somewhere between O’Hare and Telco-Dillon. NCNW negotiated originally with agents of Varityper and Multigraphics who had no Illinois connections. But as NCNW frequently emphasizes in its submissions, its bids called for a package that included financing. It was obvious from the outset that if NCNW decided to accept the Varityper and Multi-graphics bids, it was going to get financing through Leasing — unless of course it chose, despite its own bid specifications, to go elsewhere. And it was never a secret Leasing was in Illinois.

As this Court pointed out in the Order, in explaining why the choice-of-law clause was not a contract of adhesion (Order at 2 n. 1), the choice of financing was NCNW’s, and the same must be said of the bids accepted. Financing was not negotiated by the seller after the deal was done. Instead NCNW advertised for an equipment-financing package, and that brought it directly into contact with Varityper, Multigraphics and Leasing. Further, though the agents of Varityper and Multigraphics doubtless set up NCNW’s contact with Leasing, NCNW applied directly to Leasing’s Illinois office to obtain the Lease Agreements. Those contacts were not initiated by Leasing. NCNW was free to look for its own source of financing or to accept that tendered by Varityper and Multigraphics — and it opted for the latter. See Madison Consulting Group v. State of South Carolina, 752 F.2d 1193, 1202-03 (7th Cir.1985) (emphasizing, under minimum-contacts analysis, the importance of the initiation-of-transaction factor).

Another element some courts have found persuasive is the choice-of-law provision. Ronco, Inc. v. Plastics, Inc., 539 F.Supp. 391, 396 (N.D.Ill.1982) (citations omitted) observed:

[D]efendants transacted business in Illinois by voluntarily seeking the benefits and protections of Illinois law. The contract which defendants entered stated it would be governed by the law of Illinois. By choosing to apply Illinois law to this transaction, defendants sought to invoke the protections and benefits of the law of Illinois.... When a defendant voluntarily invokes the benefits and protections of Illinois law, he transacts business within the meaning of the statute.

Obviously, that factor alone did not persuade the Telco court. Indeed, there may be some unreality in saying the parties “chose” Illinois law when that choice is a form clause — but absent a finding of adhesion, that is a problem that runs all through the law of contracts, and there would be little left to the sanctity of contracts if courts were to label all such form provisions nonconsensual. In any event, the choice-of-law clause (though not decisive in itself) is one more arrow in Leasing’s quiver.

Finally, NCNW’s own behavior shows it was aware of its business obligations in Illinois. Its sale of assets to Shaw identified Leasing as the owner of the Equipment, not Varityper or Multigraphics. NCNW’s present attempt to claim ignorance of Leasing’s role (R.Mem. 3) is simply lacking in candor.

Two factors remain to be considered: (1) payments to Leasing in Illinois and (2) communications from Gavin to Leasing in Illinois. Payment to the forum state was not enough in Telco or Dillon, but again, no one factor standing alone is enough. As for the phone calls, of course mere phone (or mail) communication with an Illinois plaintiff would not in itself be sufficient even to satisfy “minimum contacts,” much less Section 2-209 (see Lakeside Bridge & Steel Co. v. Mountain State Construction Co., 597 F.2d 596, 604 (7th Cir.1979)). But Gavin’s calls assist in showing the relationship between NCNW and Leasing was direct and, in a business sense, personal. Gavin’s attempts to extend payment terms under the Lease Agreement — attempts he initiated — help at least marginally to cement his contact with Illinois. See Club Assistance Program, Inc. v. Zukerman, 594 F.Supp. 341, 347 (N.D.Ill.1984) (“telephone calls between a plaintiff in Illinois and a defendant in another state satisfy the requirements of Section 2-209 if the defendant intends to affect Illinois interests and intends to communicate his message to Illinois”).

NCNW points out one factor present in O’Hare was a visit by a defendant to Illinois to negotiate with the lessor. No such visit was made here. But Telco itself, on which NCNW most strongly relies, made nothing of that as a distinguishing factor: It pointed only to the question of who initiated the transaction (586 F.2d at 52). At least since Pennoyer v. Neff, 5 Otto (95 U.S.) 714, 24 L.Ed. 565 (1878) and its notions of physical power over a defendant ceased to mark the limits of personal jurisdiction, courts have never viewed physical presence in the state as a sine qua non of “the transaction of any business within this State.”

In conclusion, it cannot be said under the present state of the law that any one of the many ingredients involved in the transaction of business across state lines is decisive for the existence of personal jurisdiction. Even Gulliver found himself bound in Lilliput by a plurality of finespun threads— and the ties that link NCNW to Illinois are far less tenuous, both individually and eol-lectively. Telco itself teaches (586 F.2d at 52):

[I]t is not the terms of the lease that are controlling, but all the facts and circumstances of the transaction, for it is from the total picture that we determine whether or not the exertion of jurisdiction would comport with the notions of fair play and substantial justice.

And the same “totality” approach applies to the more factual inquiry under Section 2-209. Here the total picture supports a conclusion NCNW transacted business in Illinois within the meaning of the statute.

It then becomes necessary in theory to consider the due process question. But the Illinois courts have consistently held Section 2-209 is, if anything, narrower in scope than the constitutional “minimum contacts” test, so that if the first is met, so is the second. That was in fact the principal lesson of Green and Cook Associates. See, e.g., Petty, 135 Ill.App.3d at 697, 90 Ill.Dec. at 520, 482 N.E.2d at 227.

In sum, the Rule 12(b)(2) portion of NCNW’s motion to dismiss must be denied. Only a brief discussion of the remaining aspects of its motion is needed.

Transfer

NCNW alternatively reasserts its motion to transfer this action to Mississippi “[sjince all testimony will come from persons in Mississippi” (Mem. 5). Though Section 1404(a) gives this Court broad discretion to transfer “[f]or the convenience of parties and witnesses, in the interest of justice,” the picture NCNW paints is incomplete in terms of those criteria (even as to witnesses, the only factor NCNW really addresses at all).

On that latter score, Leasing names (Lirtzman Aff. 112) three of its Illinois-based personnel whom it expects to call to testify as to the procurement of the leases and (especially) as to Leasing’s version of NCNW’s conduct leading to the defaults. In response NCNW names (Baccus Aff. 112), in addition to Gavin, three former Factory Project employees it says it may call. Two of those (Eugene Roland and Sharon Harris) currently reside in Mississippi, while the third, Brenda Wynn, lives in Nashville, Tennessee.

Section 1404(a) requires a balancing of conveniences, and NCNW has the burden of showing that balance “weighs significantly in favor of transfer” (Met-L-Wood Corp. v. SWS Industries, Inc., 594 F.Supp. 706, 710 (N.D.Ill.1984)). Leaving aside the witnesses’ convenience for the moment, Leasing starts off with two “interest of justice” considerations on its side of the balance:

1. Leasing’s choice of forum, although not so weighty a factor under the flexible Section 1404(a) as under the older doctrine of forum non conveniens (Associated Mills, Inc. v. Rush Hampton Industries, Inc., 588 F.Supp. 1164, 1165-66 (N.D.Ill.1984)), is still one element in Leasing’s favor (Club Assistance Program, Inc. v. Zukerman, 598 F.Supp. 734, 736 (N.D.Ill.1984)).
2. Almost certainly Illinois law will apply to resolution of the NCNW-Leas-ing dispute, as the Lease Agreements’ choice-of-law provisions provide. Again in the interest of justice (Letter-Rite, Inc. v. Computer Talk, Inc., 605 F.Supp. 717, 722 (N.D.Ill.1985), quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947)):
[I]t makes sense to hold the trial “in a forum that is at home with the state law that must govern the case.”

As is almost always true, the “convenience of parties” consideration (in the narrow sense) is a standoff: Each litigant would prefer to do battle on its home turf. Thus NCNW’s only real argument on its side concerns the convenience of its witnesses, who are no longer employed by NCNW and who — NCNW’s R.Mem. 7 simply asserts — “will not agree to appear voluntarily.” In sheer numbers, NCNW’s four-to-three advantage in identified witnesses really amounts to a wash. But more importantly, neither NCNW’s affidavit nor its briefs explain why most of its prospective witnesses are important to its case. From the facts stated, there is no suggestion NCNW intends to challenge the validity of the Lease Agreements, at least on grounds of fraud or duress or some other theory to which testimony concerning the negotiation process would be relevant. In fact NCNW made payments on the Lease Agreements until — it appears — its money ran out. Both it and Shaw used the Equipment until Leasing repossessed it as a result of the default in payments. Thus the principal factual inquiry would seem to center around the Gavin-Leasing attempts to address NCNW’s financial problems. If any of NCNW’s proposed witnesses (except Gavin himself) has anything to say about that, this Court has received no factual support to put on the scales.

Even as between the witnesses NCNW says it will need and those Leasing says it will need, then, NCNW appears to have the worse of it. Surely it has offered nothing meaningful to override the factors favoring Leasing for Section 1404(a) purposes. NCNW’s motion to transfer is again denied.

Shaw as an Indispensable Party

Finally, NCNW (presumably seeking a Rule 12(b)(7) dismissal) again labels Shaw an indispensable party. That argument gains nothing in the repetition. Leasing sues NCNW on their written Lease Agreement. Leasing had no agreement with Shaw. If it has some different cause of action against Shaw, it is not forced to link that claim with its breach-of-contract action against NCNW.

True, NCNW transferred its rights under the Leases to Shaw, but it is well established a party can only transfer its liabilities when the creditor (Leasing) consents. See 4 Corbin on Contracts § 866 (1951); 3 Williston on Contracts § 411 (3d ed. 1960). Here Leasing stoutly refused to assent to the NCNW-Shaw assignment (let alone to an attornment that would release NCNW), and thus NCNW is still fully on the hook to Leasing. NCNW’s potential rights as against Shaw are of no relevance here. Shaw is not a party indispensable to the full adjudication of rights as between NCNW and Leasing, nor would recovery by Leasing subject NCNW to multiple liability (see Rule 19(a)). That final element of NCNW’s motion is therefore denied.

Conclusion

None of the arguments for dismissal or transfer presented by NCNW has merit, and its renewed motion is therefore denied in full. NCNW is ordered to answer the Complaint on or before February 7, 1986.

      . Amended Complaint ("Complaint”) Count 1 claims a deficiency of $8,348.31 on a December 16, 1980 lease agreement (the "1980 Lease Agreement”). Count II claims a deficiency of $78,976.62 on a December 26, 1981 lease agreement (the "1981 Lease Agreement”).

      . NCNW’s motion is captioned:
      DEFENDANT’S RENEWED MOTION TO DISMISS OR TO CHANGE VENUE OR IN THE ALTERNATIVE RULE 60(b)(6) MOTION FOR RELIEF FROM ORDER.
      Any such reference to Fed.R.Civ.P. ("Rule") 60(b)(6) is obviously inapt. There is no sense in which the Order was a "final order,” the only type from which that Rule would be available to grant relief. See 7 Moore's Federal Practice ¶ 60.16[4] (1985).

      . For purposes of NCNW’s Rule 12(b)(2) motion, Leasing’s version of any disputed facts is to be credited, Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir.1983), cert. denied, 465 U.S. 1024, 104 S.Ct. 1277, 79 L.Ed.2d 682 (1984):
      To determine whether exercising personal jurisdiction is proper, a court may receive and weigh affidavits prior to trial on the merits. O’Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir.1971). During this preliminary proceeding, although the burden of proof rests on the party asserting jurisdiction, if the district court’s decision is based on the submission of written materials the burden of proof is met by a prima facie showing that personal jurisdiction is conferred under the relevant jurisdictional statute. Id.; see also Neiman v. Rudolf Wolff & Co., 619 F.2d 1189, 1190 (7th Cir.), cert. denied, 449 U.S. 920, 101 S.Ct. 319, 66 L.Ed.2d 148 (1980). Further, the party asserting jurisdiction is entitled to the resolution in its favor of all disputes concerning relevant facts presented in the record. Id.

      Here neither litigant has paid much attention to the distinction between an affidavit and a bald assertion of facts in the briefs, nor are the few submitted affidavits limited in scope to specific facts within the actual knowledge and competence of the affiants. But because neither party has offered objections to the present state of the record, this opinion will consider all facts— wherever presented — while following the Nelson admonition to resolve all squarely-presented factual disputes in Leasing’s favor. See United Steelworkers of America, AFL-CIO v. Fermet Reclamation, Ltd., 627 F.Supp. 1213, 1215 n. 8, (N.D.Ill.1986).

      . Leasing identifies itself as a subsidiary of AM International, Inc. ("International”) (Complaint preamble). Though the Complaint says nothing about Varityper or Multigraphics, Leasing Mem. 3 characterizes them as "divisions" of International (indicating they have no separate corporate existence).

      . Complaint Exhibits (hereafter cited "Ex. — ”), including the Lease Agreements, appear to indicate Multigraphics' Jackson, Mississippi office and Varityper's Memphis, Tennessee office were involved in the negotiations (Exs. A, B, E and F).

      . In fact Ex. A, the photocopy of the 1980 Lease Agreement attached to the Complaint, is a counterpart that shows no execution by Leasing at all. Ex. E, the photocopy of the 1981 Lease Agreement, is signed by both Gavin and a Leasing officer. Gavin’s signature is dated "2/23/81,” while the Leasing officer’s signature is dated either “2-16-81” or “2-26-81.” It is unclear whether the Fry Affidavit’s statement as to the Lease Agreements being "executed” in Illinois (1) is simply a legal conclusion or (2) is based on the affixing of a Leasing officer’s signature as the last act necessary to complete formation of the contracts (something not directly confirmed by the Exhibits) or (3) is a conclusion grounded on the parties’ agreement in the choice-of-law provisions of the Lease Agreements.

      .NCNW does not actually deny the conversations took place, though its R.Mem. 5 refers to them as "alleged telephone calls.”

      . Any such statements in the NCNW-Shaw agreement and its attachments satisfy the Fed.R. Evid. 801(d)(2)(A) definition of non-hearsay.

      . Fry Aff. ¶7 does not identify the person or persons at Shaw with whom negotiations took place. Gavin Aff. ¶ 13 says he "attempted to purchase” the Equipment from Leasing, which refused to sell. But his affidavit is silent as to whether he was negotiating on Shaw’s behalf or on behalf of NCNW. In any event, he is now "associated with” Shaw (NCNW R.Mem. 8).

      . Defendant denied making that call, but the court accepted plaintiff's version as true (see n. 3 of this opinion).

      . Defendant also denied the Illinois meeting.

      .Little weight was given that factor by the court, because plaintiff’s allegation was made "broadly" and defendant claimed those communications were pursuant to efforts at settling the lessor-lessee lawsuit.

      . True enough, Varityper and Multigraphics appear as "Divisions" or “Sales Divisions” on the Lease Agreements, but the lessor is plainly shown to be Leasing, and its location is specified as Illinois. And as the text reflects, NCNW plainly knew it.

      . Though Lakeside's total viability has been considerably impaired by such cases as Afram

        Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1364 (7th Cir.1985) and Madison Consulting Group, 752 F.2d at 1200, the limited proposition just stated in the text remains sound.

      . Leasing also asserts, as a ground supporting jurisdiction, the existence of an NCNW office at 407 South Dearborn Street, Chicago (Mem. 4). However, NCNW offers Height 2d Aff. ¶¶ 4-7 to show that office is apparently unconnected with NCNW's national operations. NCNW would know its offices better than Leasing, and in any event Leasing does not assert it has ever had any dealings with the Chicago office. In view of the conclusion already reached in the text, this Court need not address the effect Leasing’s allegation would have on the jurisdictional question.

      . Though it does not specify the predicate for its motion to transfer, presumably NCNW seeks to invoke Section 1404(a). Neither party has cited statutes or applicable case law.

      . This Court can only speculate whether a Nashville resident would find it more inconvenient to attend a trial in Chicago or Mississippi.


source: Caselaw Access Project

author: CRABB, Chief Judge.

license: Public Domain

text:
    Bruce T. MURSCH, Plaintiff, v. VAN DORN COMPANY, d/b/a Central States Can Company, Defendant.
    No. 85-C-847-C.
    United States District Court, W.D. Wisconsin.
    Feb. 3, 1986.

      Bryan Wycoff, Dempsey Law Offices, Whitewater, Wis., for plaintiff.
    Carolyn C. Burrell, Foley & Lardner, Milwaukee, Wis., for defendant.
   ORDER

CRABB, Chief Judge.

This action arises from plaintiffs discharge from employment as a sales representative for Central States Can Company. Plaintiff alleges that the sole reason for his termination was defendant’s desire to replace him with a younger man. Plaintiff asserts claims of wrongful discharge, breach of contract, and violation of the Wisconsin Fair Employment Act. Defendant has moved to dismiss the complaint for failure to state a claim, and has moved to strike all of plaintiff’s demands for relief other than lost wages.

FACTS

Taking the allegations of the amended complaint as true, and for the sole purpose of deciding this motion, I find the following facts.

Plaintiff Bruce T. Murseh is a resident of Helenville, Wisconsin. Defendant Van Dorn Company is an Ohio corporation with its home office and principal place of business in Cleveland, Ohio. Central States Can Company is a division of Van Dorn Company, with its principal place of business in Massillon, Ohio. At all times material to this action, defendant maintained commercial contacts with Wisconsin by selling products that it manufactures to Wisconsin businesses and by maintaining a sales territory in Wisconsin.

From May 18, 1981 to June 30, 1984, plaintiff was employed by defendant as a sales representative for the midwest region, pursuant to an oral contract for employment entered into on or about May 18, 1981. The employment manual given to plaintiff when he was hired contains standards for determining the circumstances under which employees of the defendant will be terminated. These standards implied and indicated to plaintiff that he would not be fired except for the reasons stated in the manual or for just and reasonable cause. The manual states that the company has a policy of equal employment regardless of age, sex, race, color, religion or national origin, and provides for punishing any employee who breaks this policy. Company personnel promised plaintiff that he would not be terminated as long as he increased his sales output. Plaintiff relied on these promises, guidelines and policies, and performed all duties, obligations and conditions of his employment. During his employment, plaintiff increased his sales output.

On May 22, 1984, plaintiff’s supervisor notified plaintiff that his employment was terminated. Prior to his termination, plaintiff’s superiors had made no complaints to him to indicate that they were in any way dissatisfied with his performance as a sales representative. Plaintiff was terminated without just or reasonable cause, for reasons unrelated to the performance of his duties. The sole reason for terminating plaintiff was his age (48 years old), in order to replace him with a younger person, contrary to defendant’s policies and standards for employment as stated in defendant’s employment manual. Because plaintiff is unable to explain his termination to the satisfaction of potential employers, he has lost numerous opportunities for employment. Despite diligent efforts to find new employment, plaintiff has been unemployed since he left Central States on June 30, 1984.

Central States, through its officers and representatives, hired a younger man to replace plaintiff. George Smart, president of Central States, Gerald Bowman, vice-president in charge of administration of Central States, Lawrence Jones, president and chairman of the board of Van Dorn, and Paul Weston, plaintiffs supervisor, knew that the reason plaintiff was fired was to replace him with a younger man, and each of them acted intentionally to terminate plaintiff or approve his termination because of his age.

As a result of his termination, plaintiff suffered extreme emotional distress, humiliation, physical illness, loss of professional reputation, loss of wages, and other pecuniary damages. Plaintiff seeks back pay, compensatory damages, punitive damages, and reinstatement to his position as sales representative.

OPINION

Wisconsin Fair Employment Act

In his first cause of action, plaintiff asserts that defendant’s actions violated the Wisconsin Fair Employment Act, Wis.Stat. §§ 111.31-111.395 (1983-84). Defendant argues that the administrative remedies available under the act are exclusive, and that plaintiff has no private right of action for violation of the act’s provisions.

The Wisconsin Fair Employment Act prohibits employment discrimination on the basis of age. See Wis.Stat. §§ 111.321 and 111.33. The act provides that the Department of Industry, Labor and Human Relations shall administer its provisions, and gives the department authority to investigate complaints of discrimination, hold hearings, and to order relief, including back pay. See Wis.Stat. §§ 111.375 and 111.39. Administrative findings and orders are subject to judicial review. See Wis. Stat. § 111.395.

The Supreme Court for the State of Wisconsin first discussed the availability of private actions under the state’s fair employment act in Ross v. Ebert, 275 Wis. 523, 82 N.W.2d 315 (1957). The court applied the general rule that when a statute creates a right and a remedy, the statutory remedy is exclusive. 275 Wis. at 528, 82 N.W. 315. The court held that, assuming the act had created a new right (to be free from racial discrimination in labor union membership), the administrative remedies established in the act were the exclusive remedies available to plaintiffs. The court acknowledged that the statutory remedies of investigation, publicity, and moral suasion provided plaintiffs with only “cold comfort.” Id. at 579, 82 N.W.2d 315. Id. at 528-29, 82 N.W.2d 315.

Nearly two decades later, the state supreme court reconsidered the exclusivity of administrative remedies under the Wisconsin Fair Employment Act in Yanta v. Montgomery Ward & Co., Inc., 66 Wis.2d 53, 224 N.W.2d 389 (1974). In Yanta, the Department of Industry, Labor and Human Relations had found that the plaintiff had suffered from employment discrimination, and awarded prospective relief in the form of reinstatement. After the administrative proceedings had concluded, the legislature amended the fair employment act, giving the department the authority to award back wages in addition to prospective relief. The court held that this amendment also conferred a private right of judicial action for back wages upon the plaintiff. The court reasoned that the amendment signalled the legislature’s intent that victims of employment discrimination should be able to recover back wages, and that the plaintiff should not be prevented from recovering back wages merely because the statutorily-provided administrative forum lacked authority to grant that relief at the time she made her complaint. 66 Wis.2d at 61-62, 224 N.W.2d 389.

Yanta did not expressly overrule Ross v. Ebert, nor did it expressly state that the private right of action is limited to claims accruing prior to the 1973 back pay amendment. See Comment, Wisconsin’s Fair Employment Act: Coverage, Procedures, Substance, Remedies, 1975 Wis.L.Rev. 696, 727 n. 219. Thus, the question remained whether Yanta broadly sanctioned private actions under the fair employment act. In Bachand v. Connecticut General Life Insurance Co., 101 Wis.2d 617, 305 N.W.2d 149 (Ct.App.1981), the Wisconsin court of appeals construed Yanta narrowly to have created a private cause of action only in the anomalous situation that occurred when the legislature expanded statutory remedies after an aggrieved plaintiff had exhausted administrative enforcement mechanisms.

Implicit in the [supreme] court’s framing of the issue [in Yanta] was the realization that while the legislature now mandated a benefit in the form of lost wages for discriminatory acts, that relief was unavailable from the administrative agency at the time the plaintiff pursued her DILHR action. Therefore, the plaintiff in Yanta had a right and a remedy but no forum. The supreme court concluded that it was the will of the legislature to allow a suit for lost wages. It inferred that since the new remedy was not available to the plaintiff in the DILHR action because the administrative remedy had already been terminated, it could be tried as a private action in the circuit court. The supreme court cautioned that judicial creation of a private cause of action would be contrary to legislative intent. The court stated, however, that in allowing the plaintiff to pursue a civil action, it was not creating a judicial cause of action. It was only giving the plaintiff a forum to pursue her rightful remedy as mandated by the legislature.

101 Wis.2d at 625, 305 N.W.2d 149. The court of appeals held that Yanta created a private cause of action only in cases in which statutory remedies were unavailable administratively. Id. at 626, 305 N.W.2d 149.

Federal district courts in Wisconsin have disagreed whether the court of appeals interpreted Yanta correctly in Bachand. At least two judges in the Eastern District of Wisconsin have read Yanta broadly as creating a private right of action under the WFEA. See Zimmer v. Manitowoc Shipbuilding, Inc., 603 F.Supp. 1159, 1162 (E.D.Wis.1985) (Judge Warren); Shanahan v. WITI-TV, Inc., 565 F.Supp. 219, 222 (E.D.Wis.1982) (Chief Judge Reynolds). Other district courts have concluded that there is no private cause of action under the fair employment act other than in the particular situation in which Yanta arose. See Gunderson v. Riverview Hospital Association, case no. 84-C-533-S (W.D.Wis. Dec. 21, 1984) (Judge Shabaz); McCluney v. Jos. Schlitz Brewing Co., 489 F.Supp. 24, 26 (E.D.Wis.1980) (Judge Gordon).

In Elbe v. Wausau Hospital Center, 606 F.Supp. 1491, 1500 (W.D.Wis.1985), I stated that I agreed with Judge Reynolds’ conclusion in Shanahan that despite Bachand, the Wisconsin supreme court has continued to adhere to the view that there is a private right of action under the fair employment act. However, in light of recent cases decided by the Wisconsin supreme court and the Court of Appeals for the Seventh Circuit, I have reexamined that conclusion. I now conclude that Bachand interpreted Yanta correctly, and that plaintiff does not have a cause of action under the Wisconsin Fair Employment Act.

Those courts that have rejected Bac-hand’s narrow interpretation of Yanta have based their decisions primarily on the assumption that the Wisconsin supreme court reaffirmed the existence of a private right of action in two cases decided subsequent to Yanta. See Elbe, 605 F.Supp. at 1500; Zimmer, 603 F.Supp. at 1162-63; Shanahan, 565 F.Supp. at 223. In Kurtz v. City of Waukesha, 91 Wis.2d 103, 113, 280 N.W.2d 757 (1979), the Wisconsin supreme court stated that Yanta “recognized that violation of the Act gives rise to a civil cause of action for damages for lost wages resulting from the discrimination.” However, in Kurtz, as in Yanta, the discriminatory acts occurred before the 1973 back pay amendment to the fair employment act. See Kurtz, 91 Wis.2d at 106, 280 N.W.2d 757. Thus, the plaintiff in Kurtz would have had a private cause of action even under Bachand’s restrictive interpretation of Yanta. Moreover, the issue in Kurtz was not whether there was a private cause of action under the act, but whether Wis. Stat. § 118.20 provides the exclusive remedy for teachers suffering discrimination, or whether § 118.20 is supplementary to fair employment act remedies. Id. at 112-16, 280 N.W.2d 757.

In the recent case of Watkins v. Labor & Industry Review Commission, 117 Wis.2d 753, 345 N.W.2d 482 (1984), the state supreme court again stated that Yanta held that there was a private cause of action for lost wages under the Wisconsin Fair Employment Act. 117 Wis.2d at 760, 345 N.W.2d 482. However, Watkins was not a private action against the employer, but a review of administrative proceedings before the department, so the question of a private right of action was not before the court. Also, as in Yanta and Kurtz, the alleged acts of discrimination in Watkins occurred several years before the 1973 amendments to the act authorizing administrative awards of back pay. Id. at 755, 345 N.W.2d 482.

Thus, while Watkins and Kurtz reaffirmed the Yanta holding that there is a private cause of action under the fair employment act, neither case expanded the availability of that action to cases in which the full range of statutory remedies is available administratively.

In considering the scope of the private right of action created in Yanta, it is significant that the Wisconsin supreme court has recently reaffirmed the general rule of exclusivity of statutorily vested remedies relied upon in Ross v. Ebert. See Brockmeyer v. Dun &. Bradstreet, 113 Wis.2d 561, 576 n. 17, 335 N.W.2d 834 (1983) (citing Ross v. Ebert). Because the general rule of exclusivity of statutory remedies is clearly the law of Wisconsin, and because the supreme court has never extended the private cause of action created in Yanta to cases in which the full panoply of statutory remedies is available administratively, I conclude that the decision of the court of appeals in Bachand accurately states the law of Wisconsin.

This conclusion is supported further by the recent decision of the Court of Appeals for the Seventh Circuit in Koehn v. Pabst Brewing Co., 763 F.2d 865 (7th Cir.1985). In Koehn, the plaintiff alleged that he was fired because he was handicapped, and that his termination violated the public policy against employment discrimination against the handicapped articulated in the fair employment act. The court of appeals held that in light of Brockmeyer, one cannot maintain an action for wrongful discharge in violation of public policy unless one has exhausted the administrative remedies available under the Wisconsin Fair Employment Act. Id. at 866. Although Koehn involved an action for wrongful discharge, not an action under the act, the rationale of that decision applies with even greater force to actions asserting violations of the act. If the existence of statutorily created administrative remedies precludes a common law wrongful discharge action based on violations of the policies enunciated in the act, these remedies should also preclude private actions founded directly on violations of the act.

Finally, I note that in holding that a private cause of action is available under the Wisconsin Fair Employment Act, at least one court was influenced by the act’s directive that it be liberally construed to accomplish its purposes. See Zimmer v. Manitowoc Shipbuilding, Inc., 603 F.Supp. at 1162. Because the act contained a similar liberal construction directive at the time the court held in Ross v. Ebert that the administrative remedies are exclusive, see Ross v. Ebert, 275 Wis.2d at 527, 82 N.W.2d 315, I do not believe that this directive evinces a legislative intent to create a private cause of action in addition to administrative remedies.

Having concluded that the Bachand holding is the definitive statement of Wisconsin law on the issue whether the Wisconsin Fair Employment Act creates an implied private right of action for employment discrimination, I will dismiss plaintiff’s fair employment act claim for failure to state a claim.

Wrongful discharge contrary to public policy

In Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, the Wisconsin supreme court adopted an exception to the at-will employment doctrine, holding that an at-will employee has a cause of action for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law. 113 Wis.2d at 573, 335 N.W.2d 834. In his second cause of action, plaintiff asserts that his discharge violated the public policy against age discrimination in employment articulated in the Wisconsin Fair Employment Act. Defendant argues that a discharge in violation of that act is not a public policy violation actionable under Brockmeyer.

Resolution of this question is controlled by the recent decision of the Court of Appeals for the Seventh Circuit in Koehn v. Pabst Brewing Co., 763 F.2d 865. As noted above, the plaintiff in Koehn alleged that he was fired because he was handicapped, and that his termination violated the public policy against employment discrimination against the handicapped evinced by the Wisconsin Fair Employment Act. The court of appeals assumed that such a discriminatory firing violated a well-defined public policy within the meaning of Brockmeyer. 763 F.2d at 865. Thus, Koehn supports plaintiffs argument that discharge in violation of the fair employment act’s prohibition against age discrimination contrary is the type of public policy violation that may support a wrongful discharge action under Brockmeyer.

However, Koehn also provides the basis for dismissal of plaintiff’s wrongful discharge claim. In Koehn, the plaintiff had not sought administrative redress for the discrimination he suffered. The court of appeals noted that administrative remedies are available under the Wisconsin Fair Employment Act for age discrimination. Although the court stopped short of holding that the administrative remedies under the act are the exclusive remedies for wrongful discharge, it did hold that when administrative redress is available, one cannot bring a suit for wrongful discharge unless one has exhausted administrative remedies. 763 F.2d at 866. See also Shanahan v. WITI-TV, Inc., 565 F.2d at 224-25.

In this case, plaintiff has not alleged that he has exhausted the administrative remedies available under the Wisconsin Fair Employment Act for age discrimination. Under Koehn, therefore, plaintiff may not maintain an action for wrongful discharge based on violation of the public policy against age discrimination enunciated in the Wisconsin Fair Employment Act.

Breach of contract

In his third cause of action, plaintiff alleges that his termination breached contractually binding provisions set forth in the employment manual he received when he was hired. Defendant contends that the manual did not transform an at-will relationship into an enforceable contractual relationship.

In Ferraro v. Koelsch, 124 Wis.2d 154, 368 N.W.2d 666 (1985), the Wisconsin supreme court held that an employment handbook may convert an at-will relationship into one that may be terminated only in accord with contractual terms. 124 Wis.2d at 157-58, 368 N.W.2d 666. In Ferraro, the employment handbook contained statements by the employer concerning various policies and procedures, including the procedures to be followed when disciplining or terminating an employee. The employer required the employee to sign a statement acknowledging that he had received the handbook and that he understood the rules and procedures and accepted them as a condition of employment. The supreme court held that the employer’s promise of employment on stated terms and the employee’s promise to continue employment under those conditions constituted an express contract that superseded the at-will nature of the employment. 124 Wis.2d at 164, 368 N.W.2d 666.

Defendant asserts that Ferraro requires two elements before an employees’ manual changes an at-will relationship into an enforceable contractual relationship: the handbook must contain express promises by the employer, and the handbook must ask the employee for express responsive promises. Defendant argues that plaintiff has failed to allege either that the handbook made express promises or that he was required to make any express responsive promises. Plaintiff contends that by accepting the handbook and continuing to work, he agreed implicitly to be bound by the conditions of employment set forth in the handbook.

It is true that the court in Ferraro frequently noted the express nature of the promises made by both employer and employee. However, the court did not limit its holding to contracts based on express promises.

We need not linger over whether or not there was a contract by implication, a contract which ripened into an enforceable one by performance, or became a contract on the basis of some other theory whereby the reasonable expectations of the parties will be enforced by a court. Here there was an express contract....

124 Wis.2d at 164, 368 N.W.2d 666. This passage indicates that the court would have entertained various theories to determine whether there was a contract, but found it unnecessary to do so given the express nature of the mutual promises. Elsewhere, the court indicated that continued performance by an employee may constitute acceptance of the handbook’s terms.

We deem irrelevant whether the signing by Ferraro occurred in May or in August. Both dates preceded the facts giving rise to this lawsuit. We do not consider whether signing was even necessary, for Ferraro accepted, i.e., performed, in response to and with knowledge of the handbook contents.

124 Wis.2d at 159 n. 2, 368 N.W.2d 666. In this case, plaintiff has alleged he performed his duties in reliance on the guidelines and policies set forth in the employment manual. Such a statement is sufficient to allege acceptance of contractual terms.

Defendant also argues that plaintiff’s allegations with respect to defendant’s promises are inadequate under Ferraro, because plaintiff has not alleged that defendant made express promises, only that the handbook “implied” standards for determining when employees would be fired. As noted above, Ferraro is not limited to express contracts. Whether there was an implied or express contract between the parties is a question for the factfinder in this case.

I conclude that plaintiff’s allegations that the employment manual established conditions of employment and that he performed his work in reliance on the standards set forth in the employment manual, and that defendant terminated him in violation of these standards, are adequate to state a claim of breach of contract.

Damages

Plaintiff seeks compensatory damages for lost wages, emotional distress, physical illness, and loss of professional reputation, as well as punitive damages. Defendant has moved to strike plaintiff’s demands for all damages other than back pay.

Plaintiff’s only surviving claim is for breach of contract. Compensatory damages for breach of employment contract are limited in Wisconsin to lost wages and expenses incurred in obtaining new employment; damages for emotional distress, humiliation and loss of reputation are not recoverable. See Smith v. Beloit Corp., 40 Wis.2d 550, 589, 162 N.W.2d 585 (1968); see also O’Leary v. Sterling Extruder Corp., 533 F.Supp. 1205, 1209-10 (E.D.Wis.1982). Punitive damages are not permitted in employment contract actions. Dvorak v. Pluswood Wisconsin, Inc., 121 Wis.2d 218, 221, 358 N.W.2d 544 (Ct.App.1984).

Plaintiff attempts to avoid the damages limitations of contract actions by asserting that the amended complaint also states a claim of tortious interference with contract. However, the amended complaint is devoid of any mention of a claim based on tortious interference; the first hint of a tort claim comes in plaintiffs brief. Moreover, plaintiff has not named as a defendant any individual who is alleged to have interfered with his contract with defendant. Because plaintiff has not asserted any claim sounding in tort, his relief will be limited to contractual remedies.

ORDER

IT IS ORDERED that defendant’s motion to dismiss plaintiffs first cause of action (Wisconsin Fair Employment Act) and second cause of action (wrongful discharge) is GRANTED.

IT IS FURTHER ORDERED that defendant’s motion to dismiss plaintiff’s third cause of action (breach of contract) is DENIED.

IT IS FURTHER ORDERED that defendant’s motion to strike plaintiff’s demand for all damages other than lost wages is GRANTED.

      . The amended complaint alleges that the oral contract was entered into on May 18, 1984. In his brief in opposition to defendant’s motion to dismiss, plaintiff states that this is a typographical error, and that plaintiff entered into the oral contract on May 18, 1981.

      . Although federal courts generally give great weight to state intermediate appellate courts on matters of state law, they are not bound to follow a state intermediate appellate ruling that is inconsistent with a state supreme court ruling. See Williams, McCarthy, Kinley, Rudy & Picha v. Northwestern National Insurance Group, 750 F.2d 619, 624 (7th Cir.1984); Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 272 (7th Cir.1983).

      . As the Court of Appeals for the Seventh Circuit has observed, this statement in Brockmeyer was dictum contained in a footnote. Koehn v. Pabst Brewing Co., 763 F.2d 865, 866 (1985). However, the court of appeals also described this as a "pregnant footnote,” ibid, and I agree that this footnote is highly significant.

      . But see Shanahan v. WITI-TV, Inc., 565 F.Supp. at 223-25, holding that the availability of administrative remedies precludes a wrongful discharge action, but not a claim under the Wisconsin Fair Employment Act.

      . Plaintiffs damages under his two other claims would not differ from the damages available in a breach of contract action. Monetary damages under the Wisconsin Fair Employment Act are limited to back wages. See Yanta v. Montgomery Ward & Co., Inc., 66 Wis.2d at 62, 224 N.W.2d 389. Damages in wrongful discharge actions are limited to contract remedies. See Brockmeyer v. Dun & Bradstreet, 113 Wis.2d at 575, 335 N.W.2d 834.


author: WILLIAM C. LEE, District Judge.

text:
    Martha OLSON, Plaintiff, v. PAINE, WEBBER, JACKSON & CURTIS, INC., Defendant.
    Civ. No. F 85-397.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Feb. 3, 1986.

      Martin T. Fletcher, Rothberg, Gallmeyer, Fruechtenicht & Logan, Fort Wayne, Ind., for plaintiff.
    J. Timothy McCaulay, Helmke, Beams, Boyer & Wagner, Fort Wayne, Ind., for defendant.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendant’s Motion to Stay Proceedings and to Compel Arbitration filed on November 8, 1985. The motion has been fully briefed and a hearing on this matter was held on December 10, 1985. In a telephone conference held on December 12, 1985, plaintiff’s counsel contended that there existed further discrepancies in the form of agreement that plaintiff signed vis-a-vis the Commodity Futures Trading Commission’s regulation, 17 C.F.R. § 180.3, as amended in 1983. Plaintiff's counsel was therefore given five days to bring those discrepancies to the court’s attention. No such brief was filed. For the following reasons, defendant’s motion to stay the proceedings and compel arbitration will be granted.

Statement of the Facts

The undisputed facts in this case are as follows. In 1984 plaintiff Martha Olson (Olson) established an account with the defendant Paine, Webber, Jackson & Curtis, Inc. (Paine Webber) for the trading of commodities. Paine Webber is a corporation engaged as a commodity broker and is a futures commission merchant as defined by the Commodity Futures Trading Commission (CFTC) Regulations and the Commodity Exchange Act (CEA). 17 C.F.R. § 1.1 (1985); 7 U.S.C. § 2 (1980 and Supp.1985).

On January 25,1984, Olson signed both a Client Commodity Agreement and an agreement that required that any dispute between defendant and Olson be resolved by binding arbitration. The arbitration agreement contained the words “you need not sign this agreement to open an account

During the morning of June 5, 1984, Olson placed an order for the purchase of two (2) silver contracts at a price of $932.00 with Stan Ford (Ford), an account executive for Paine Webber. This order was filled during the afternoon of June 5, 1984, the same day the order was placed.

It is disputed whether Olson, at the time she placed her order with Ford, told him that she wanted the silver contracts bought before noon on June 5, 1984, and if this was not done the order was to be cancelled.

Since Olson planned to be out of town for several days, she called Ford around noon on June 5, 1984, to see if he had purchased the silver contracts. At this time, Ford told Olson that her order had not yet been filled. It was not until June 9, 1984, that Olson learned from her brother that Ford had purchased the silver contracts on the afternoon of June 5, 1984.

Olson promptly called' Ford to tell him that the contract had been filled against her instructions. Both Ford and the office manager of Paine Webber told Olson that they were unaware of any restriction that Olson had placed on her order of June 5, 1984. She was also told that she would have to “pay for” the filled order and suffer the consequences.

Since Olson failed to pay for the silver contracts and meet a margin call, Paine Webber proceeded to exercise its right of liquidation. As a result of this sale Olson lost approximately $17,000 to $18,000. During this time period the market price of the silver future contract declined from $932.00 to $870.00. Defendant’s net loss on the transaction was offset against positive cash deposits Olson had with Paine Webber, and a debit balance of about $400.00 remained in Olson’s account.

On September 24, 1984, Olson commenced this present action against Paine Webber. Olson alleges four causes of action. Count I alleges a violation of both the Commodity Exchange Act, 7 U.S.C. § 1, et seq., and the Commodity Futures Trading Commission’s Regulations, 17 C.F.R. § 180.3. The second claim alleges a breach of fiduciary duty. Counts III and IV in effect allege that certain unauthorized trades in the plaintiff’s commodities account constitute a breach of contract and constitute a failure to exercise reasonable care.

On November 8, 1985, Paine Webber moved the court to stay proceedings and compel arbitration under the predispute arbitration agreement.

Issue Before the Court

The issue before the court is whether the predispute arbitration agreement form that Paine Webber provided Olson with, and Olson voluntarily signed, sufficiently complies with the CFTC’s Regulation § 180.3 to form a valid agreement to arbitrate disputes that arise between the parties.

In 1983 the CFTC added two entirely new sections to the existing § 180.3. New § (b)(4) requires that “the customer will have the opportunity to elect a qualified forum for conducting the [arbitration] proceeding.” The second addition to § 180.3, new § (b)(5), directs that the “agreement must acknowledge that the futures commission merchant, ... will pay any incremental fees which may be assessed by a qualified forum for provision of a mixed panel ... ”.

The arbitration agreement form that Paine Webber provided to Olson did not contain the information required by §§ (b)(4) and (b)(5) of the 1983 amendment to § 180.3. Apparently Paine Webber failed to update the form of its arbitration agreement to conform to these new requirements.

Applicable Law

For an arbitration agreement to be valid it must comply with the regulations adopted by the CFTC under the authority of the federal statutes. Regulation § 180.3 provides in pertinent parts:

(a) The use by customers of the dispute settlement procedures established by contract markets pursuant to the Act or this part or the arbitration or other dispute settlement procedures specified in an agreement under paragraph (b)(3) of this section shall be voluntary. The procedures so established shall prohibit any agreement or understanding pursuant to which customers of members of the contract market agree to submit claims or grievances for settlement under said procedures prior to the time when the claim or grievance arose, except in accordance with paragraph (b) of this section.
(b) No futures commission merchant, introducing broker, floor broker, commodity pool operator, commodity trading ad-visor, or associated person shall enter into any agreement or understanding with a customer in which the customer agrees, prior to the time the claim or grievance arises, to submit such claim or grievance to any settlement procedure except as follows:
(1) Signing the agreement must not be made a condition for the customer to utilize the services offered by the futures commission merchant, inroduc-ing broker, floor broker, commodity pool operator, commodity trading ad-visor or associated person.
(2) If the agreement is contained as a clause or clauses of a broader agreement, the customer must separately endorse the clause or clauses containing the cautionary language and other provisions specified in this section.
(3) The agreement may not require the customer to waive the right to seek reparations under section 14 of the Act and Part 12 of these regulations. Accordingly, the customer must be advised in writing that he or she may seek reparations under section 14 of the Act by an election made within 45 days ...
(4) The agreement must advise the customer that, at such time as he or she may notify the futures commission merchant, introducing broker, floor broker, commodity pool operator, commodity trading advisor or associated person that he or she intends to submit a claim to arbitration, or at such time as such person notifies the customer of its intent to submit a claim to arbitration, the customer will have the opportunity to elect a qualified forum for conducting the proceeding ...
(5) The agreement must acknowledge that the future commission merchant, introducing broker, floor broker, commodity pool operator, commodity trading advisor or associated person will pay any incremental fees which may be assessed by a qualified forum for provision of a mixed panel, unless the arbitrators in a particular proceeding determine that the customer has acted in bad faith in initiating or conducting that proceeding.
(6) The agreement must include the following language printed in large boldface type:
THREE FORUMS EXIST FOR THE RESOLUTION OF COMMODITY DISPUTES: CIVIL COURT LITIGATION, REPARATIONS AT THE COMMODITY FUTURES TRADING COMMISSION (CFTC) AND ARBITRATION CONDUCTED BY A SELF-REGULATORY OR OTHER PRIVATE ORGANIZATION. ...
BY SIGNING THIS AGREEMENT YOU: (1) MAY BE WAIVING YOUR RIGHT TO SUE IN A COURT OF LAW; AND (2) ARE AGREEING TO BE BOUND BY ARBITRATION OR ANY CLAIMS OR COUNTERCLAIMS WHICH YOU OR [NAME] MAY SUBMIT TO ARBITRATION UNDER THIS AGREEMENT....
YOU NEED NOT SIGN THIS AGREEMENT TO OPEN AN ACCOUNT WITH [NAME],

Arguments of the Parties

Olson argues that the arbitration agreement does not conform to the Commodity Futures Trade Commission’s Regulations, 17 C.F.R. § 180.3, as these regulations existed as of the date of the signing of the agreement, and therefore, the predispute arbitration agreement is void. Paine Web-ber, on the other hand, advances four arguments in support of its motion to stay the proceedings and to compel arbitration of all claims raised by Olson:

(1) the deficiencies in the agreement concern protection of customer’s rights and not whether the agreement was entered into voluntarily, therefore, these deficiencies can be corrected without any disadvantage to Olson;
(2) the present arbitration agreement tracks CFTC guidelines (but for two insubstantial alterations) and therefore is valid and enforceable;
(3) a strong federal policy to enforce predispute arbitration agreements under the CEA favors enforcement of the present agreement;
(4) all claims raised by Olson are within the scope of the arbitration agreement and therefore are required to be arbitrated.

Discussion

1. Deficiencies in a Predispute Arbitration Agreement

Olson relies on Curran v. Merrill Lynch Pierce Fenner & Smith, Inc., 622 F.2d 216 (6th Cir.1980), and Ames v. Merrill Lynch Pierce Fenner & Smith, Inc., 567 F.2d 1174 (2d Cir.1977), as providing support for her argument that arbitration agreements that do not conform to CFTC regulations are void. In both Curran and Ames the plaintiffs had signed the same standard form commodity agreement that included, within the body of the form, an agreement to arbitrate any disputes. This agreement did not require a separate signature for the arbitration agreement. While defendant’s form complied with earlier CFTC regulations, it did not comply with the regulations as they existed at the time of the suit.

In 1976 the CFTC adopted regulations under § 7a(ll) that provided that “no pre-dispute arbitration agreement may be enforced unless the agreement is contained in a separate document executed by the customer and contains adequate warnings in large print.” Curran, 622 F.2d at 226. The court in both Curran and Ames gave the CFTC regulation retroactive effect and found that the arbitration agreements were invalid because plaintiffs had not separately signed them. These violations of the CFTC regulations go to the conditions of formation of the arbitration agreement.

The purpose of the CFTC regulations are to ensure that the customer voluntarily enters into a predispute agreement to arbitrate. Three mandatory conditions with respect to predispute arbitration agreements required under 17 C.F.R. § 180.3 are: “1) that the agreement not be a condition of access to the market; 2) that the customer sign separately any arbitration agreement; and 3) that the arbitration agreement contain appropriate bold-faced warnings.” Ames, 567 F.2d at 1176 n. 2.

Olson cites Marchese v. Shearson Hayden Stone, Inc., 734 F.2d 414 (9th Cir.1984), as further support for her argument that an arbitration agreement that does not meet the requirements set forth in 17 C.F.R. § 180.3 is invalid. In Márchese, the Ninth Circuit affirmed a district court’s decision that held a predispute arbitration agreement invalid because the arbitration clauses were not “separately endorsed” and did not “contain cautionary language in bold-faced type.” Id. at 417. This deficiency existed at the stage of formation of the arbitration agreement. A subsequent version of an arbitration agreement that contained the required cautionary language was held valid. Id. at 417.

A common thread that runs through Curran, Ames and Márchese is that the § 180.3 deficiencies existed at the time that the customers signed the arbitration agreements and could affect the voluntariness of the agreement. These cases, however, did not involve a deficiency that affected the customer only at the arbitration stage.

2. Deficiencies that can be Remedied

First, defendant argues that the arbitration agreement is valid because the deficiencies are technical and insubstantial and do not concern protected rights. Defendants relies on Ingbar v. Drexel Burnham Lambert, Inc., 683 F.2d 603 (1st Cir.1982), as support for the position that an arbitration agreement is valid if the violation does not involve the formation of the agreement.

In Ingbar, the plaintiff claimed a technical violation of § 180.3(b)(3) because he was not notified by the defendant in writing of his right to seek reparations “at the time when [it] ... notifie[d] [him] of [its] intention to arbitrate.” Ingbar, 683 F.2d at 608. The court in Ingbar looked to the purpose behind the noncomplied with regulation noting that “the obvious purpose of the (b)(3) ‘notice’ requirement is to guarantee that a customer learns about his reparation rights in time to invoke it.” Id. The court found that since Ingbar’s elaborate arguments were based upon these regulations “he must have been aware of this right.” Id.

The court concludes that “[e]ven were the facts otherwise, it is doubtful that we would go beyond the remedy that the regulation would require to make a claimant whole — an extension of the 45-day time limit for electing reparation proceedings. (Citations omitted.) There is no reason here, however, to impose even that remedy, let alone (for purposes of deterrence, enforcement, or the like) so serious a sanction as invalidation of the arbitration agreement.” Id.

Ingbar was cited with approval by the court in Hagstrom v. Breutman, 572 F.Supp. 692, 700-01 (N.D.Ill.1983), when the court noted that “we are most reluctant not to enforce a broad arbitration agreement which was apparently entered into freely by the parties.” Id. at 701.

3. Application

The second argument that defendant raises is that the arbitration agreement tracks the CFTC regulations and that the deficiencies are two technical alterations that can be remedied.

Turning to the facts of the present case, Olson admits that there is an arbitration agreement in writing, voluntarily entered into and separately signed before the dispute arose. She does not admit, however, that the agreement is valid. Indeed, she claims that either the Commodity Exchange Act, 7 U.S.C. §§ 1-24, or alternatively, regulations of the CFTC, 17 C.F.R. §§ 180.1-180.6, make the agreement in this case invalid and therefore unenforceable.

Paine Webber concedes that the arbitration agreement is deficient in two respects: (1) the agreement provides that the broker shall select the forum not the customer, as regulation § 180.3(b)(4) requires, and (2) the agreement is silent on the fact that Paine Webber must pay “any incremental fees which may be assessed by a qualified forum for provision of a mixed panel, unless the arbitrators in a particular proceeding determine that the customer has acted in bad faith in initiating or conducting that proceeding.” 17 C.F.R. § 180.3(b)(5).

Paine Webber argues that if arbitration proceeded on the condition that: (1) Olson is allowed her right of selection of forum under § 183.3(b)(4) and that (2) Paine Web-ber is responsible for any incremental fees, pursuant to § 183.3(b)(5), the deficiencies in the predispute arbitration agreement would be corrected.

This court finds defendant’s argument persuasive in that it complies with § 180.3 and holds the parties to an arbitration agreement that they freely entered into. Paine Webber’s arbitration agreement tracks the CFTC regulations in spirit if not in letter. Olson voluntarily entered into a predispute agreement and cannot now look to technical deficiencies to defeat the agreement. This court finds that Olson is entitled to select an arbitration forum and to have the defendant pay for incremental fees unless the present suit is found to have been brought in bad faith, then Olson is required to pay the incremental fees under § 180.3(b)(5).

Federal Policy Favors Endorsement of Agreements to Arbitrate under the CEA

The third argument that defendant presents is that in addition to the statutory basis for enforcement of the arbitration agreement a strong federal policy compels enforcement of the arbitration agreement.

Arbitration lightens the courts’ workloads and it usually results in a speedier resolution of controversies. Sauer-Getriebe v. White Hydraulics, Inc., 715 F.2d 348, 352 (7th Cir.1983). Passage of the Federal Arbitration Act, 9 U.S.C. § 1, et seq., was motivated “first and foremost, by a Congressional desire to enforce agreements into which parties had entered ... Dean Witter Reynolds v. Byrd, — U.S. -,-, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985). Section 3 of the Arbitration Act requires a district court to “stay the trial of an action” if “the issue involved” is referable to arbitration under an agreement in writing for such arbitration. 9 U.S.C. § 3.

This strong federal policy favors the enforcement of privately made agreements to arbitrate when one of the parties files a motion to compel “even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.” Byrd, — U.S. at-, 105 S.Ct. at 1241.

There are, however, judicially created exceptions to the Arbitration Act. In cases involving protective legislation, such as the area of federal securities, the arbitral forum is not adequate to effectuate federal policies. Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953).

However, this case arises under the Commodity Exchange Act and “nothing in the Commodity Exchange Act or its legislative history indicates a Congressional intent that agreements to arbitrate claims arising under the Commodity Exchange Act should not be enforceable under the United States Arbitration Act.” Corcoran v. Shearson/American Express, 596 F.Supp. 1113, 1116 (N.D.Ga.1984); see Tamari v. Bache & Co. (Lebanon) S.A.L., 565 F.2d 1194 (7th Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978).

This court therefore finds that the arbitration agreement in this ease arising under the CEA is enforceable.

All Claims Raised by Olson are Subject to the Arbitration Agreement

The court turns to the question of whether plaintiff’s claims are within the scope of the arbitration agreement. Plaintiff apparently concedes that all of her claims are subject to arbitration if the arbitration agreement is valid, because she fails to raise any argument to the contrary. A brief discussion of this issue, however, is in order.

If all of the counts raised by plaintiff are to be arbitrated, and defendant is not in default seeking arbitration, then the stay should be granted. 9 U.S.C. § 3. As the Fifth Circuit has stated:

An applicant for a § 3 stay is entitled to obtain it, if he makes “a claim [to arbitration] which on its face is one governed by the [applicable] agreement.” ... And the court should grant the stay “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.”

Seaboard Coastline Railroad Co. v. National Rail Passenger Corp., 554 F.2d 657, 660 (5th Cir.1977) (citations omitted).

No issue has been raised that defendant is in default in seeking arbitration. Therefore, the only issue is whether plaintiffs claims are governed by the arbitration agreement.

Count I of plaintiff’s complaint alleges violations of the Commodity Exchange Act. As previously shown, the arbitration agreement between the parties is valid. This court is “unable to find a congressional signal that arbitration ought not be available in Commodity Exchange cases ...”. Smoky Greenhaw Cotton v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 720 F.2d 1446, 1448 (5th Cir.1983), and therefore the alleged violations of the Commodity Exchange Act are subject to arbitration. See, e.g., Corcoran v. Shearson/American Express, 596 F.Supp. at 1113.

Count II of plaintiffs complaint alleges breach of a fiduciary duty. Plaintiff argues that an order was placed contrary to the instructions she gave and that defendant attempted to cover the deficit by liquidating the silver futures contract and also using other funds that plaintiff had on account with defendant to cover the deficit. Such a claim has been found to be an appropriate claim subject to arbitration with respect to a commodities dispute situation. Marchese v. Shearson Hayden Stone, Inc., 734 F.2d at 422-23.

Counts III and IV of plaintiff’s complaint are governed by the arbitration agreement. These counts both involve alleged unauthorized trades in plaintiff’s commodities account. As such, they clearly present a “controversy arising out of or relating to [plaintiff's] account, to transactions with [defendant] for [plaintiff] or to this agreement or breach thereof ...” and are thus within the scope of the arbitration agreement. Paragraph 1 of the Client Commodity Agreement provides, in relevant part:

You are hereby authorized, at any time and from time to time without prior notice to the undersigned, to transfer from my (our) Regulated Commodity Futures Accounts) to any other account in Commodities or Securities held by you for me (us) such amount of excess funds which in your judgment may be reasonably required to aviod the calling of margins for, or to reduce a debit balance in such other accounts. This can and may include the purchase of Paine Webber Cash-fund.

(Defendant’s Motion to Stay Proceedings, Exhibit A).

In light of the above language the court cannot say “with positive assurance that the arbitration clause is not susceptible of an interpretation that covers” the allegations in Count III and Count IV. Seaboard Coastline Railroad Co. v. National Rail Passenger Corp., 554 F.2d at 660. As the Seventh Circuit stated in a similar situation that sought to defeat an arbitration agreement, the claims are “intimately founded in and intertwined with the underlying contract obligations.” Hughes Masonry Co. v. Greater Clark County School Building Corp., 659 F.2d 836, 841 n. 9 (7th Cir.1981).

This court holds therefore that these claims must be submitted to arbitration as well.

Conclusion

For the reasons stated above, defendant’s motion to compel arbitration is, therefore, GRANTED, and this action is hereby STAYED.

      . In support of this argument defendant draws a distinction between pre-1983 amendments to 17 C.F.R. § 180.3 and post-1983 amendments. The pre-1983 amendments, it is argued, are designed as protections against involuntary contract obligations, while the post-1983 amendments are designed to protect rights that already existed under § 180.3. A deficiency that occurs under the post-1983 amendments is characterized as technical, insubstantial and able to be corrected without a disadvantage to the customer. The present deficiencies, since they occur under the post-1983 amendments do not affect the volun-tariness of the contract and can be remedied without any disadvantage to Olson. While defendant’s argument may be correct, the example fails to fit the model since the defendant proceeds to use a case that was decided under the pre-1983 regulations, Ingbar v. Drexel Burnham Lambert, Inc., 683 F.2d 603 (1st Cir.1982), to support its argument,

      . 9 U.S.C. § 3 provides:
      If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.