June 18, 1999
COMDISCO, INC., PLAINTIFF-APPELLANT,
THE DUN & BRADSTREET CORPORATION, DUN & BRADSTREET COMPUTER LEASING, INC., AND FILLUPAR LEASING PARTNERSHIP, DEFENDANTS-APPELLANTS.
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. Nos.97 CH 1181, 95 CH 2471 HONORABLE STEPHEN A. SCHILLER, JUDGE PRESIDING.
The opinion of the court was delivered by: Justice Campbell
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Plaintiff Comdisco, Inc., appeals an order of the circuit court of Cook County ordering plaintiff and defendants Dun & Bradstreet Corporation (D&B), Dun & Bradstreet Computer Leasing (D&BCL), and Fillupar Leasing Partnership (Fillupar) to arbitrate a dispute regarding the fair market value of computer equipment that was the subject of sale/leaseback transactions between the parties.
This case is related to this court's prior decision in Comdisco, Inc. v. Dun & Bradstreet Corp., 285 Ill. App. 3d 796, 674 N.E.2d 902 (1996) (Comdisco I), which is briefly summarized here. On March 20, 1995, Comdisco filed a "Verified Complaint for a Declaratory Judgment and Other Relief" in the circuit court of Cook County. In this complaint, Comdisco alleged that on or about September 3, 1991, it entered into two sale/leaseback transactions with D&B and Fillupar (which later came under the control of D&BCL); given that the agreements used "virtually similar" language, the complaint refers to the transactions as one. For example, both leases provided that Comdisco had the right to terminate the leases on an "early termination date". In the event that Comdisco exercised this option, it would pay D&B the "early termination value" of the equipment. One definition of the "early termination value" was the "fair market value" of the equipment on the "early termination date". "Fair market value" was also defined in the leases. Each lease involved several categories of IBM and Amdahl equipment; each category had a different "early termination date."
Comdisco exercised its early termination rights as to all categories of equipment on the respective early termination dates. In June 1992, a dispute arose between the parties regarding the value of the equipment. The parties exchanged letters in June 1992 and met in July 1992 in an effort to resolve the dispute, but were not successful.
In September 1992, the parties exchanged letters regarding a proposed arbitration of their dispute. A draft of an agreement to submit the dispute to arbitration was being discussed by the parties by May 1994. In November 1994, the parties executed an Arbitration Agreement (Agreement). The first paragraph of the Agreement reads as follows:
"1.AGREEMENT TO ARBITRATE. The parties hereto hereby agree to submit to binding arbitration, in accordance with the terms of this Agreement, the disputes which have arisen (A) between Fillupar and Comdisco concerning the amounts, if any, owed by Comdisco to Fillupar under the terms of the Equipment Leases as a result of Comdisco's exercise of its early termination options with respect to each category of leased equipment, and (B) between Dun & Bradstreet and Comdisco concerning the amounts, if any, owed by Comdisco to Dun & Bradstreet under the Equipment Value Certificates." On November 11, 1994, the parties retained former Judge Nicholas J. Bua to arbitrate the dispute.
The parties conducted discovery in March 1995. D&B allegedly raised claims that it was entitled to a "volume premium" and an "in- place premium" for the first time during this discovery period. D&B alleged that these premiums would result in Comdisco owing an additional $18 million above what Comdisco had already paid for the equipment.
Accordingly, count I of the complaint sought a declaration that the Agreement was null and void. Count II alleged breach of contract. Count III alleged a breach of the covenants of good faith and fair dealing. Count IV alleged that defendants fraudulently induced Comdisco to enter into the Agreement. Count V alleged that there was no "meeting of the minds" regarding the Agreement. Count VI sought injunctive relief, staying the arbitration until the court determined which issues were arbitrable.