{ "id": 5147802, "name": "CAROL CUSAMANO, Plaintiff-Appellant, v. NORRELL HEALTH CARE, INC., Defendant-Appellee", "name_abbreviation": "Cusamano v. Norrell Health Care, Inc.", "decision_date": "1992-12-23", "docket_number": "No. 4\u201492\u20140248", "first_page": "648", "last_page": "658", "citations": [ { "type": "official", "cite": "239 Ill. App. 3d 648" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "528 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "173 Ill. App. 3d 939", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3478683 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/0939-01" ] }, { "cite": "549 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 431", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2497244 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0431-01" ] }, { "cite": "415 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171755 ], "weight": 6, "pin_cites": [ { "page": "53-54" }, { "page": "161" }, { "page": "56-57" }, { "page": "163" }, { "page": "1024" } ], "opinion_index": 0, "case_paths": [ "/us/415/0036-01" ] }, { "cite": "9 U.S.C. \u00a71", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1988, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "460 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188858 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "22" }, { "page": "784" }, { "page": "940" } ], "opinion_index": 0, "case_paths": [ "/us/460/0001-01" ] }, { "cite": "Cal. Corp. Code \u00a731000", "category": "laws:leg_statute", "reporter": "Cal. Code", "year": 1977, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "465 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11334479 ], "weight": 30, "year": 1977, "pin_cites": [ { "page": "7" }, { "page": "10" }, { "page": "856" }, { "page": "13-16" }, { "page": "13-16" }, { "page": "859-61" }, { "page": "4" }, { "page": "8" }, { "page": "855" }, { "page": "4" }, { "page": "8" }, { "page": "855" }, { "page": "5" }, { "page": "9" }, { "page": "855-56" }, { "page": "16" }, { "page": "15-16" }, { "page": "861" }, { "page": "10" }, { "page": "11-12" }, { "page": "858" }, { "page": "18" }, { "page": "16" }, { "page": "862", "parenthetical": "Stevens, J., concurring in part and dissenting in part" }, { "page": "20" }, { "page": "18" }, { "page": "863", "parenthetical": "Stevens, J., concurring in part and dissenting in part" } ], "opinion_index": 0, "case_paths": [ "/us/465/0001-01" ] }, { "cite": "530 N.E.2d 431", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "435" } ], "opinion_index": 0 }, { "cite": "124 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217704 ], "pin_cites": [ { "page": "426-28" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0418-01" ] }, { "cite": "473 U.S. 614", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204792 ], "weight": 3, "pin_cites": [ { "page": "634" }, { "page": "460" }, { "page": "3357-58" } ], "opinion_index": 0, "case_paths": [ "/us/473/0614-01" ] }, { "cite": "500 U.S. 20", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6216237 ], "weight": 9, "pin_cites": [ { "page": "30-31" }, { "page": "39-40" }, { "page": "1654" }, { "page": "26" }, { "page": "37" }, { "page": "1652" }, { "page": "35" }, { "page": "43" }, { "page": "1657" } ], "opinion_index": 0, "case_paths": [ "/us/500/0020-01" ] }, { "cite": "580 N.E.2d 191", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "199" } ], "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 530", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5802130 ], "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0530-01" ] }, { "cite": "238 Ill. App. 3d 187", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5155448 ], "weight": 6, "pin_cites": [ { "page": "192" }, { "page": "194" }, { "page": "194" }, { "page": "195" }, { "page": "195" }, { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0187-01" ] }, { "cite": "456 N.E.2d 889", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "895-96" }, { "page": "895-96" } ], "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 663", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629363 ], "weight": 2, "pin_cites": [ { "page": "670-72" }, { "page": "670-72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0665-01" ] }, { "cite": "505 N.E.2d 1325", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "1327" }, { "page": "1327" } ], "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 373", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3607531 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "376" }, { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0373-01" ] }, { "cite": "594 N.E.2d 391", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "392-93" }, { "page": "392-93" } ], "opinion_index": 0 }, { "cite": "229 Ill. App. 3d 909", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5217105 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "911" }, { "page": "911" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0909-01" ] }, { "cite": "574 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "641" }, { "page": "641" } ], "opinion_index": 0 }, { "cite": "143 Ill. 2d 377", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591736 ], "weight": 2, "pin_cites": [ { "page": "387" }, { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0377-01" ] }, { "cite": "298 Md. 96", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1984002 ], "weight": 2, "pin_cites": [ { "page": "107" }, { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/md/298/0096-01" ] }, { "cite": "530 N.E.2d 439", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "443" }, { "page": "445" }, { "page": "445" } ], "opinion_index": 0 }, { "cite": "124 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218645 ], "weight": 4, "pin_cites": [ { "page": "445" }, { "page": "447-48" }, { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0435-01" ] } ], "analysis": { "cardinality": 985, "char_count": 23565, "ocr_confidence": 0.755, "pagerank": { "raw": 1.79732979479468e-07, "percentile": 0.7158650948375754 }, "sha256": "d392c0abdfe2b3591bcea38a37342fb1ec3084dc0832281af34575f803932822", "simhash": "1:bfc635fcbef0ed85", "word_count": 3764 }, "last_updated": "2023-07-14T16:51:04.850958+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "KNECHT and LUND, JJ., concur." ], "parties": [ "CAROL CUSAMANO, Plaintiff-Appellant, v. NORRELL HEALTH CARE, INC., Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn October 1991, plaintiff, Carol Cusamano, sued defendant, Norrell Health Care, Inc., seeking $40,000 in damages and rescission of a franchise agreement between plaintiff and defendant. Plaintiff based her claim on defendant\u2019s precontract, allegedly fraudulent misrepresentations that violated the Franchise Disclosure Act of 1987 (Act) (Ill. Rev. Stat. 1991, ch. 121\u00bd, par. 1701 et seq.). The franchise agreement contained an arbitration clause under which the parties agreed to submit all questions \u201carising out of or in relation to\u201d the agreement to arbitration. In November 1991, defendant filed a motion to dismiss, arguing that plaintiff must submit her claim to arbitration. In February 1992, the trial court granted defendant\u2019s motion, and plaintiff appeals.\nWe vacate and remand.\nI. Background\nDefendant operates a temporary health care employment service based in Atlanta, Georgia. In October 1988, plaintiff and defendant signed a franchise contract under which plaintiff would open and operate a franchise office for defendant in central Illinois. In short, this contract required plaintiff to spend at least $500 to purchase office space, furnishings, and equipment, and provided that defendant would pay plaintiff 40% of the gross profits from the office. The contract did not provide for any further compensation, nor did it set a suggested or required maximum that plaintiff could spend to open the franchise.\nDuring the first few months, plaintiff claims that she spent close to $40,000 to open the franchise office, and that the 40% commission did not provide her with even \u201ca minimal income.\u201d As a result, plaintiff sued to recover the $40,000 and rescind the contract. Plaintiff in effect claimed that the franchise contract should be rescinded because defendant did not provide her with a disclosure statement, thereby violating the Act. (Although she did not cite the particular section, we note that section 5(2) of the Act requires a person offering or selling a franchise to provide the prospective franchisee a disclosure statement. See Ill. Rev. Stat. 1987, ch. 121\u00bd, par. 1705(2).)\nPlaintiff also alleged in her complaint that defendant fraudulently induced her to sign the franchise agreement by providing her -with a sample commission statement that grossly overestimated the amount of expected earnings. She claimed that the statement defendant provided her reflected commission earnings out of a company-run office, not an agency office of the type she would open. Because company offices use different accounting methods than agency offices to determine profits and commission, she argued that defendant\u2019s providing that commission statement to her as a sample constituted a fraudulent misrepresentation, entitling her to rescission and damages pursuant to the Act.\nDefendant filed a motion to dismiss, arguing that plaintiff must submit her claim to arbitration in Atlanta, Georgia, pursuant to an arbitration clause in the contract. The trial court conducted a hearing on this motion and granted it. Plaintiff appeals, arguing that she cannot submit her claim to arbitration because a Georgia arbitrator would have no authority to enforce Illinois law, upon which she bases her complaint.\nII. Analysis\nThe pertinent part of paragraph 21 of the franchise agreement between plaintiff and defendant reads as follows:\n\u201c(a) Any dispute or disagreement between the parties arising out of or in relation to this Agreement, and any extension[,] modification^] or renewal thereof, shall be settled by arbitration in Atlanta, Georgia[,] under the rules then obtaining of the American Arbitration Association, and any judgment upon the award of the arbitrator may be entered in any court having jurisdiction.\u201d\nAs a preliminary matter, we note that in Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 530 N.E.2d 439, the Illinois Supreme Court clarified whether a court or an arbitrator should initially determine if a party must submit a claim to arbitration. When the claim clearly falls within or clearly does not fall within the scope of the arbitration clause, the trial court should initially decide the arbitrability issue. (Donaldson, 124 Ill. 2d at 445, 530 N.E.2d at 443.) However, \u201cwhen the language of an arbitration clause is broad and it is unclear whether the subject matter of the dispute falls within the scope of [the] arbitration agreement, the question of substantive arbitrability should initially be decided by the arbitrator.\u201d (Emphasis added.) (Donaldson, 124 Ill. 2d at 447-48, 530 N.E.2d at 445.) The Donaldson court reasoned that \u201c \u2018[wjhether the party seeking arbitration is right or wrong is a question of contract application and interpretation for the arbitrator, not the court, and the court should not deprive the party seeking arbitration of the arbitrator\u2019s skilled judgment by attempting to resolve the ambiguity.\u2019 \u201d Donaldson, 124 Ill. 2d at 448, 530 N.E.2d at 445, quoting Gold Coast Mall, Inc. v. Larmar Corp. (1983), 298 Md. 96, 107, 468 A.2d 91, 97.\nWhether a party must submit a claim to arbitration depends entirely upon whether the parties have agreed to do so. (Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 387, 574 N.E.2d 636, 641.) In Rauh, the Illinois Supreme Court clarified this point as follows:\n\u201cThe parties to an agreement are bound to arbitrate only those issues which by clear language and their intentions expressed in the language show they have agreed to arbitrate. [Citations.] That is, arbitration agreements cannot be extended by construction or implication.\u201d Rauh, 143 Ill. 2d at 387, 574 N.E.2d at 641.\nSeveral Illinois courts have held that claims of precontract fraud in the inducement must be submitted to arbitration, even though they call the entire contract into question, unless the claim specifically attacks the arbitration clause. (See Nelson v. Roger J. Lange & Co. (1992), 229 Ill. App. 3d 909, 911, 594 N.E.2d 391, 392-93; Diersen v. Joe Keim Builders, Inc. (1987), 153 Ill. App. 3d 373, 376, 505 N.E.2d 1325, 1327; J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 670-72, 456 N.E.2d 889, 895-96.) In the present case, plaintiff claims that defendant\u2019s precontract fraud induced her to sign the contract. However, as opposed to the parties in Nelson, Diersen, and J & K Cement, who challenged the contracts in those cases based on common-law contract doctrine, plaintiff here challenges the contract based on the Act. Thus, we must determine whether plaintiff must submit her statutory claim of precontract material misrepresentation to arbitration.\nIn order to address this issue, we must first decide whether the Act automatically becomes part of every franchise contract to which it applies. (See Ill. Rev. Stat. 1991, ch. 121\u00bd, pars. 1706, 1710.) We hold that it does. If we held otherwise, the arbitrator would have no authority arising out of the contract to enforce it and the circuit court should proceed to hear plaintiff\u2019s claim. The antifraud provisions of the Act apply automatically when the offeree is domiciled in Illinois (see Ill. Rev. Stat. 1991, ch. 121\u00bd, par. 1706), and the registration requirements automatically apply when the franchisee is domiciled in Illinois (see Ill. Rev. Stat. 1991, ch. 121\u00bd, par. 1710). Because plaintiff (the offeree-franchisee in this case) was domiciled in Illinois, the Act automatically became a part of the franchise contract in this case, regardless of any choice of law provision that might indicate that Illinois law does not otherwise apply to the contract.\nAlthough not necessary to this holding, we note that paragraph 20(b) of the contract between the parties bolsters this conclusion because it contains the following provision:\n\u201c(b) It is the intention of the parties that this Agreement comply with the provisions and requirements of all applicable laws. This Agreement shall be deemed to contain and shall be construed so as to contain and be consistent with all mandatory provisions and requirements of applicable laws, which provisions and requirements are hereby incorporated herein by reference.\u201d\nThe requirements of the Act therefore are clearly a part of the contract at issue in this case. The question thus is not whether plaintiff has a right to pursue her statutory claim, but rather where she must pursue it.\nPlaintiff argues that she had to bring her claim in Illinois circuit court because a Georgia arbitrator does not have the authority to enforce Illinois statutory remedies. The First District Appellate Court has recently agreed. In Barter Exchange, Inc. v. Barter Exchange, Inc. (1992), 238 Ill. App. 3d 187, 192, that court held that only the circuit court can decide a claim that the Act was violated, thereby voiding the franchise contract because the franchisor\u2019s compliance with the Act was a condition precedent to forming a valid franchise contract in this State. Because the defendant in Barter admitted that it violated the Act by not registering with the Attorney General, the court held that a condition precedent to enforcing the contract did not exist. (Barter, 238 Ill. App. 3d at 194.) The court then held that the absence of this condition precedent rendered the contract subject to rescission (Barter, 238 Ill. App. 3d at 194), which implicitly invalidated the arbitration agreement within that purported contract. Thus, without an agreement to arbitrate, the plaintiff did not need to submit its claim to arbitration.\nHowever, the Act does not provide grounds by which a plaintiff-franchisee can deny that a contract exists; instead, it provides grounds by which a plaintiff-franchisee can rescind a contract. (See Ill. Rev. Stat. 1991, ch. 121\u00bd, par. 1726.) The remedy of rescission presumes that a valid contract exists; it does not negate that a contract ever existed. (See Felde v. Chrysler Credit Corp. (1991), 219 Ill. App. 3d 530, 542, 580 N.E.2d 191, 199 (\u201crescission means the cancellation of a contract and restoration of the parties to their initial status\u201d (emphasis added)).) Accordingly, we respectfully disagree with the decision of the First District Appellate Court that compliance with the Act is a \u201ccondition precedent\u201d to a franchise contract. Instead, we hold that because a suit brought under the Act to rescind a franchise contract does not challenge the existence of the contract, the question of rescission can go to arbitration.\nThe court in Barter also added that a defendant-franchisor\u2019s ability to compel arbitration would allow \u201cunscrupulous franchisors\u201d to avoid the requirements of the Act by allowing them to establish themselves out of State and to sign franchise agreements with Illinois residents without complying with the Act. The Barter court feared that when a case arose under the Act, these unscrupulous franchisors could then \u201cinvoke the arbitration agreement, compel arbitration, and remove the case to their home States for resolution.\u201d (Barter, 238 Ill. App. 3d at 195.) Presumably, doing so would not only \u201cdeny Illinois courts the opportunity to interpret, construe and apply the *** Act to foreign franchisors,\u201d but it would also allow the unscrupulous franchisor to slip past the requirements of the Act. Barter, 238 Ill. App. 3d at 195.\nWe do not find persuasive the concerns expressed in Barter. In our view, the arbitrator \u2014 even a Georgia arbitrator \u2014 can provide the relief plaintiff requested in this case because, as we have held, the requirements of the Act become a part of every franchise contract to which it applies \u2014 especially when, as here, the parties specifically incorporate \u201call applicable laws\u201d into the contract.\nMoreover, if, as the Barter court conceded, Illinois indeed views arbitration as a favored means of settling disputes (see Ill. Rev. Stat. 1991, ch. 10, par. 102(a); Barter, 238 Ill. App. 3d at 192), then we should not presume that the arbitrator will collude with the defendant to help defendant avoid the requirements of the Act. Instead, we should presume that the arbitrator not only possesses the competence, but also the inclination, to grant all appropriate relief warranted under the Act. In Gilmer v. Interstate/Johnson Lane Corp. (1991), 500 U.S. 20, 30-31, 114 L. Ed. 2d 26, 39-40, 111 S. Ct. 1647, 1654, the United States Supreme Court recently rejected an attack on arbitration and wrote the following:\n\u201cSuch generalized attacks on arbitration \u2018res[t] on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,\u2019 and as such, they are \u2018far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.\u2019 [Citation.] ***\n[Petitioner] *** speculates that arbitration panels will be biased. However, \u2018[w]e decline to indulge the presumption that the parties and arbitral body conducting a proceeding will be unable or unwilling to retain competent, conscientious and impartial arbitrators.\u2019 [(Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985), 473 U.S. 614, 634, 87 L. Ed. 2d 444, 460, 105 S. Ct. 3346, 3357-58.)]\u201d\nIf the arbitrator does not address a particular issue at all, plaintiff can then file suit in the circuit court. See Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 426-28, 530 N.E.2d 431, 435 (prior arbitration of contractual claim between two parties does not collaterally estop plaintiff from bringing a retaliatory discharge claim not addressed by the arbitrator, even though both claims involved essentially the same facts).\nWhen the parties choose arbitration in their contract, the party later seeking to avoid arbitration should not be allowed to do so by merely alleging that no contract (and, implicitly, no arbitration agreement) exists. Indeed, the result in Barter could effectively end arbitration of contractual disputes in Illinois because almost any plaintiff can find some theory or claim upon which to allege that no contract existed, thereby avoiding arbitration. Because plaintiff here has not specifically alleged that defendant fraudulently induced her to sign the arbitration agreement, we give full credit to the clause of the franchise contract that states \u201c[a]ny dispute or disagreement between the parties arising out of or in relation to this Agreement *** shall be settled by arbitration.\u201d See Nelson, 229 Ill. App. 3d at 911, 594 N.E.2d at 392-93; Diersen, 153 Ill. App. 3d at 376, 505 N.E.2d at 1327; J & K Cement, 119 Ill. App. 3d at 670-72, 456 N.E.2d at 895-96.\nWe believe our conclusion consistent with the views expressed by the United States Supreme Court in Southland Corp. v. Keating (1984), 465 U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852. In Southland, the Supreme Court reversed a California State court decision that claims asserted under the California Franchise Investment Law (Cal. Corp. Code \u00a731000 et seq. (West 1977)) are arbitrable, and in so doing the Court discussed its view of the effect of the California court\u2019s ruling on arbitration, as follows:\n\u201cPlainly the effect of the judgment of the California court is to nullify a valid contract made by private parties under which they agreed to submit all contract disputes to final, binding arbitration. The [F]ederal [Arbitration] Act permits \u2018parties to an arbitrable dispute [to move] out of court and into arbitration as quickly and easily as possible.\u2019 Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 22[, 74 L. Ed. 2d 765, 784, 103 S. Ct. 927, 940] (1983).\nContracts to arbitrate are not to be avoided by allowing one party to ignore the contract and resort to the courts. Such a course could lead to prolonged litigation, one of the very risks the parties, by contracting for arbitration, sought to eliminate.\u201d Southland, 465 U.S. at 7, 79 L. Ed. 2d at 10, 104 S. Ct. at 856.\nWe further question the decision in Barter because it conflicts with the Gilmer and Southland decisions of the United States Supreme Court, which held that whenever a contract involving interstate commerce contains an arbitration clause employing broad language (like the clause in the present case), the Federal Arbitration Act (9 U.S.C. \u00a71 et seq. (1988)) requires that a plaintiff must submit to arbitration any claim \u2014 including a statutory claim \u2014 that arises out of the relationship established by the contract. Gilmer, 500 U.S. at 26, 114 L. Ed. 2d at 37, 111 S. Ct. at 1652; Southland, 465 U.S. at 13-16, 79 L. Ed. 2d at 13-16, 104 S. Ct. at 859-61.\nIn Southland, the plaintiff filed a class-action lawsuit on behalf of 800 7-Eleven franchisees against Southland (which owns the 7-Eleven franchise operation), alleging, among other things, fraud, misrepresentation, and failure to disclose under the California Franchise Investment Law. (Southland, 465 U.S. at 4, 79 L. Ed. 2d at 8, 104 S. Ct. at 855.) Southland petitioned to compel arbitration pursuant to the following arbitration clause in all its franchise agreements:\n\u201c \u2018Any controversy or claim arising out of or relating to this Agreement or the breach hereof shall be settled by arbitration ***.\u2019\u201d (Southland, 465 U.S. at 4, 79 L. Ed. 2d at 8, 104 S. Ct. at 855.)\nThe California Supreme Court held that this clause did not include the plaintiff\u2019s statutory claim because the California Franchise Investment Law \u201crequire[d] judicial consideration of claims brought under that statute.\u201d (Southland, 465 U.S. at 5, 79 L. Ed. 2d at 9, 104 S. Ct. at 855-56.) The California Supreme Court thus adopted the position that plaintiff here advocates: arbitration is not the proper forum for statutory claims.\nInvoking the supremacy clause of the United States Constitution, the United States Supreme Court reversed, holding that the Federal Arbitration Act preempts any State law that denies enforcement of an arbitration clause in any contract involving interstate commerce, even when the claim at issue is a statutory claim based on the public policy of the State. (Southland, 465 U.S. at 16, 79 L. Ed. 2d at 15-16, 104 S. Ct. at 861.) The Court explained its holding as follows:\n\u201cThe California Supreme Court interpreted [the California Franchise Investment Law] to require judicial consideration of claims brought under the state statute and accordingly refused to enforce the parties\u2019 contract to arbitrate such claims. So interpreted the California Franchise Investment Law directly conflicts with \u00a72 of the Federal Arbitration Act and violates the Supremacy Clause.\nIn enacting \u00a72 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration. *** Congress has thus mandated the enforcement of arbitration agreements.\u201d Southland, 465 U.S. at 10, 79 L. Ed. 2d at 11-12, 104 S. Ct. at 858.\nJustice Stevens argued in partial dissent that the Court should have given the States the right to implement \u201ccertain substantive state policies that would be undermined by enforcing certain categories of arbitration clauses.\u201d (Southland, 465 U.S. at 18, 79 L. Ed. 2d at 16, 104 S. Ct. at 862 (Stevens, J., concurring in part and dissenting in part).) Justice Stevens explained further that it was not clear that Congress intended to entirely displace State authority on which claims are subject to arbitration, and he argued that the Court should give deference to States which want to implement policies that only a court can litigate. (Southland, 465 U.S. at 20, 79 L. Ed. 2d at 18, 104 S. Ct. at 863 (Stevens, J., concurring in part and dissenting in part).) The majority tacitly rejected this position by instead holding that the Federal Arbitration Act requires that a plaintiff must submit to arbitration any claim arising out of or in relation to a contract that involves interstate commerce and contains a broad arbitration clause.\nIn Gilmer, the Supreme Court addressed the apparent conflict between Southland \u2014 which held that the plaintiffs must submit their statutory claim to arbitration \u2014 and a prior case, Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36, 53-54, 39 L. Ed. 2d 147, 161, 94 S. Ct. 1011, 1022\u2014which contained dicta stating that an \u201carbitrator has authority to resolve only questions of contractual rights,\u201d not statutory rights. Alexander also contained language that strongly doubted the competence and propriety of an arbitrator\u2019s addressing and applying statutory rights. (See Alexander, 415 U.S. at 56-57, 39 L. Ed. 2d at 163, 94 S. Ct. at 1024.) Nonetheless, the Gilmer Court upheld Southland and rejected any implication from the dicta in Alexander that an arbitrator does not have the authority or competence to resolve statutory claims, as long as the arbitration clause covers such claims. Gilmer, 500 U.S. at 35, 114 L. Ed. 2d at 43, 111 S. Ct. at 1657.\nBecause the contract in the present case clearly involves interstate commerce, and because plaintiff raises essentially the same claim as did the plaintiff in Southland (although based on an Illinois statute, not a California statute), Southland controls our result. (See Yates v. Doctor\u2019s Associates, Inc. (1990), 193 Ill. App. 3d 431, 549 N.E.2d 1010; Konewko v. Kidder, Peabody & Co. (1988), 173 Ill. App. 3d 939, 528 N.E.2d 1.) The trial court thus correctly held that plaintiff must initially submit her claim to arbitration.\nAlthough Southland requires this result, we want to ensure that plaintiff has a chance to present her statutory claims under the Act. We earlier held that the Act is part of the contract in the present case. However, we realize that the Georgia arbitrator (or any arbitrator, for that matter) might choose not to accept our interpretation of the contract. Moreover, as previously noted, in cases where it is unclear whether the claim falls within the arbitration clause, the arbitrator should initially decide if the claim is arbitrable. Donaldson, 124 Ill. 2d at 447-48, 530 N.E.2d at 45.\nIII. Conclusion\nFor the reasons stated, we vacate the trial court\u2019s order dismissing plaintiff\u2019s complaint and direct that the circuit court proceedings be stayed until the parties have arbitrated this matter. If the arbitrator decides that plaintiff\u2019s claims under the Act are not arbitrable and therefore refuses to address those claims, then the circuit court should lift the stay and proceed with this case. However, if the arbitrator decides that plaintiff\u2019s claims under the Act are arbitrable \u2014 in effect, accepting this court\u2019s holding that the Act is part of the contract between the parties \u2014 and makes a decision based thereon (regardless of what ultimate decision the arbitrator reaches), then the circuit court should dismiss the present action.\nOur remand will provide defendant the benefit of its bargain by allowing it to arbitrate all claims arising out of the agreement, but will not preclude plaintiff from bringing her claims under the Act in circuit court if the arbitrator does not address them.\nVacated and remanded with directions.\nKNECHT and LUND, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE STEIGMANN" } ], "attorneys": [ "Julie L. Galassi, of Hasselberg & Rock, of Peoria, for appellant.", "William F. Trapp, of Brown, Hay & Stephens, of Springfield, and John G. Parker and William J. Holley II, both of Paul, Hastings, Janofsky & Walker, of Atlanta, Georgia, for appellee." ], "corrections": "", "head_matter": "CAROL CUSAMANO, Plaintiff-Appellant, v. NORRELL HEALTH CARE, INC., Defendant-Appellee.\nFourth District\nNo. 4\u201492\u20140248\nOpinion filed December 23, 1992.\nRehearing denied February 19, 1993.\nJulie L. Galassi, of Hasselberg & Rock, of Peoria, for appellant.\nWilliam F. Trapp, of Brown, Hay & Stephens, of Springfield, and John G. Parker and William J. Holley II, both of Paul, Hastings, Janofsky & Walker, of Atlanta, Georgia, for appellee." }, "file_name": "0648-01", "first_page_order": 668, "last_page_order": 678 }