• June 3, 2010

ELA Medical, based in Colorado, but with Minnesota offices, distributes pacemakers, defibrillators, and related equipment.  It entered into a sales rep agreement with Advanced Cardiac Consultants (“ACC”) to sell such devices in Florida.  Then came allegations and investigations of kickbacks to physicians down there in Florida, followed by the termination of ACC, followed by litigation here in Minnesota.  Notwithstanding a forum selection clause in the sales rep agreement unambiguously providing for a Minnesota forum, ACC sought to have the case dismissed or transferred to Florida.

U.S. District Court Judge Ann Montgomery (D. Minn.) rejected ACC’s gambit, which was essentially premised on three arguments: (1) the lawsuit names not only ACC, a party therefore to the sales rep agreement, but also individuals, not, as such, parties to the forum selection clause, (2) ACC argued that the contract was a “contract of adhesion,” in which ACC had no bargaining power and had to enter into the contract as a matter of necessity, and (3) Florida is warmer.

OK, the summary of the last argument is not quite right.  The argument was that the vast bulk of evidence and witnesses would be in Florida.   This is admittedly a bit more compelling than attacking climatological vulnerability of Minnesota and Judge Montgomery gave ACC’s actual argument the consideration it deserved but, ultimately, laying emphasis on sophisticated businesses and business people knowingly entering into a contract with a clear forum selection clause, she denied the motion to dismiss.

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