Nearly identical provisions in business agreements meant a media owner had to file his complaint against another communications company by the statute of limitations deadline in Virginia, not in Indiana.
In 2000 and 2002, Alan Brill, owner of radio stations and newspaper in medium markets including Evansville, signed confidentiality agreements with Regent Communications Inc. as part of the negotiations to sell his radio stations. Both contracts contain nearly identical choice of law language that the provisions will be interpreted under the laws of the Commonwealth of Virginia.
Brill and Regent disputed the scope of the choice of law language when negotiations fell apart.
In August 2008, Brill filed a complaint against Regent and other defendants for breach of contract, fraud and additional acts of malfeasance. A month later, he filed an amended complaint. In January 2009, he filed a second amended complaint naming Regent as the sole defendant.
Regent responded in August 2010 by filing an Indiana Trial Rule 12(B)(6) motion to dismiss Brill’s second amended complaint. The company claimed Brill had filed after the Virginia five-year statute of limitations had expired.
The trial court denied the motion and Regent appealed.
Before the Indiana Court of Appeals, Brill argued the choice of law provision applied only to substantive law and that Indiana law applied to procedural issues. Therefore, he filed his second amended complaint well within the Indiana six-year statute of limitations.
Regents countered that Virginia law applied in both substantive and procedural matters.
The Court of Appeals agreed with Regent and reversed the denial of the motion to dismiss in Alan R. Brill, Business Management Consultants, LP f/k/a/ Brill Media Company, LP, and the Non-Debtor Companies v. Regent Communications, Inc., n/k/a Townsquare Media, Inc., 82A01-1304-PL-174.
Pointing to OrbusNeich Med. Co. v. Boston Scientific Corp., 694 F. Supp. 2d 106 (D. Mass. 2010), the COA found the additional phrase in the Brill-Regent agreements indicated the parties’ intent that Virginia law governs both substantive and procedural issues.