that parties cannot create fact issues by contradicting prior sworn testimony). CSI offers no explanation for its attempted contradiction of its discovery admissions, such as newly discovered information or the need to clarify earlier discovery responses. See ibid. Accordingly, pursuant to the parties' admitted agreement, the court applies Illinois law to the remainder of its discussion.
Still, CSI contends that the document does not reflect the parties' agreement. Again, CSI admitted the accuracy of the document in its discovery response. See Id. Based upon CSI's admission, the court finds that the document reflects the parties' agreement except to the extent that the document refers to a commission term, and makes no finding about that term.
The remaining question is whether the Illinois Sales Representative Act, 820 ILCS 120/.01-120/3 ("ISRA") applies to the instant case, where Mescalero solicited business for CSI outside the State of Illinois. ISRA § 1(4) defines "sales representative" as "a person who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission, but shall not include one who places orders or purchases for his own account for resale or one who qualifies as an employee of the principal pursuant to the Illinois Wage Payment and Collection Act." ISRA § 1(4). This definition contains two parts: the first describes what a "sales representative" is, the second what it is not.
The first part of the definition accurately describes the parties' arrangement. According to the document which CSI itself admits sets forth the actual agreement of the parties (except to the extent that it describes commissions), Mescalero was to solicit wholesale orders and was to be paid for this service by a commission. The second part of the statutory definition does not apply to the parties' agreement.
CSI argues that the reference to the Illinois Wage Payment and Collection Act ("IWPCA") indicates the Illinois legislature's intent to cover only solicitation occurring within the boundaries of Illinois. CSI cites no authority for this proposition. The Seventh Circuit has "made it clear that a litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority, forfeits the point." Doe v. Johnson, 52 F.3d 1448, 1457 (7th Cir. 1995).
Furthermore, both parties ignore recent case law holding to the contrary. In 1990, the Illinois legislature amended ISRA by deleting the words "within this state" from its provisions. Hammond Group, Ltd. v. Spalding & Evenflo Cos., Inc., 69 F.3d 845, 850 (7th Cir. 1995). Accordingly, ISRA applies to solicitation occurring outside the State of Illinois after 1990, like that at issue in the instant case. See id.
Also, the reference to the IWPCA appears only in the portion of ISRA's definition which does not describe the parties' relationship. ISRA's reference to the IWCPA is relevant only to the determination of whether one is an employee under the IWPCA. ISRA's mention of the IWCPA does not serve to corral ISRA's application into the borders of Illinois.
The court finds legislative intent to extend ISRA to all sales representation agreements having a constitutional connection to the State of Illinois such that jurisdiction would lie. International Shoe v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945), requires "minimum contacts" for jurisdiction to exist. The facts of this case indicate that minimum contacts are present, and Mescalero does not argue to the contrary. In the instant case, an Illinois corporation entered into a contract under Illinois law with a foreign corporation. See 735 ILCS 5/2-209(a)(1) and (a)(7). A choice of law provision is a factor in the minimum contacts test. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 2185-87, 85 L. Ed. 2d 528 (1985). Therefore, under International Shoe the application of the ISRA to the instant case is constitutional. See International Shoe v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945).
The court finds that the written agreement document embodies the parties' contract except to the extent that it describes commissions, that Illinois law applies, and that ISRA applies to solicitation outside of Illinois.
For the foregoing reasons, Mescalero's motion to strike the fifth affirmative defense is denied and its alternative for judgment on the pleadings is granted in part and denied in part.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court