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Applying a four-factor test used by courts to determine whether a waiver of the right to a jury trial was knowing and voluntary, the court rejects the lessee's arguments that the waiver should not be enforced. With regard to one of the factors ' whether the clause was inconspicuous ' the court notes that although the lessee had argued that the waiver was in fine print in a form agreement, the waiver provision in fact appeared in all-capital typeface, making it distinct within the text of the relatively short agreement.

Robert W. Ihne is an attorney with 25 years of experience in commercial financing, primarily in the areas of secured transactions and equipment leasing. Such experience has included drafting, negotiating and providing advice related to direct transactions, syndications, vendor financing arrangements, and various forms of credit enhancements such as guaranties and letters of credit. He may be reached at [email protected]. The author gratefully acknowledges the assistance of Erin Staton and Ed Gross of Vedder Price Kaufman & Kammholz, P.C. in the preparation of this update. This update is dedicated to Ed Groobert, soon-to-be ELFA General Counsel Emeritus.

Forum Selection, Jurisdiction and Choice of Law

Frontier Leasing Corporation v. Hunt, 2010-2813781 (N.C.App. July 20, 2010) (unpublished disposition ' see North Carolina rules before citing)

This North Carolina appellate decision affirms a trial court's order granting a motion by the original lessor's assignee to enforce a default judgment entered by an Iowa state court against the lessee, a golf professional in North Carolina. The lessee had signed a lease containing a consent to personal jurisdiction and venue in Iowa courts. (The facts underlying the litigation are common to many other cases involving the leasing of golf beverage carts with respect to which the lessees were told that payments to them for advertising on the carts would equal the payments owing under the leases. After the advertising payments stopped, many of the lessees stopped making payments under their leases.) This court finds that Iowa law would hold the forum selection clause enforceable notwithstanding the lessee's claims that the clause was not prominently displayed on the lease form and that he was not a sophisticated businessman. The court distinguishes the facts in this case from those in a Pennsylvania case in which that court declined to enforce the forum selection clause against a lessee who was an immigrant with limited understanding of the English language.

Waivers of Trial By Jury

Key Equipment Finance Inc. v. Poag & McEwen Lifestyle Centers, LLC, 2010 WL 2696195 (U.S.Dist.Ct. W.D.Tenn. July 6, 2010)

Applying a four-factor test used by courts to determine whether a waiver of the right to a jury trial was knowing and voluntary, the court rejects the lessee's arguments that the waiver should not be enforced. With regard to one of the factors ' whether the clause was inconspicuous ' the court notes that although the lessee had argued that the waiver was in fine print in a form agreement, the waiver provision in fact appeared in all-capital typeface, making it distinct within the text of the relatively short agreement.

Robert W. Ihne is an attorney with 25 years of experience in commercial financing, primarily in the areas of secured transactions and equipment leasing. Such experience has included drafting, negotiating and providing advice related to direct transactions, syndications, vendor financing arrangements, and various forms of credit enhancements such as guaranties and letters of credit. He may be reached at [email protected]. The author gratefully acknowledges the assistance of Erin Staton and Ed Gross of Vedder Price Kaufman & Kammholz, P.C. in the preparation of this update. This update is dedicated to Ed Groobert, soon-to-be ELFA General Counsel Emeritus.