Court Allows MBE/UPS Store Franchisees to Move Forward with Jury Trial
LOS ANGELES (Blue MauMau) - On Tuesday, a federal court in California ruled that two groups of franchisees under the moniker Brown Shield Association (BSA) were entitled to a jury trial, in spite of franchisor Mail Boxes Etc. and The UPS Stores filing a motion against it. Judge Otis D. Wright II stated that although the franchisees were "sophisticated investors, not hapless or necessitous men," the franchise company had slightly more bargaining power with respect to its "take it or leave it transaction," referring to the franchise contracts.
The Brown Shield Association is one of several franchisee groups bringing litigation against the company after UPS purchased Mail Boxes Etc. and converted the concept to its new model. Each litigant group has four chosen plaintiffs representing approximately 200 other franchisees. The first trial set for January 20, 2009, will be for those who bought into The UPS Store concept. The second scheduled for March 10, will be for Mail Boxes Etc. franchisees who later converted to UPS's new model. Both groups claim they were deceived into investing in the franchise which has proven to be economically unviable. Mail Boxes Etc. argued in the case that the franchisees voluntarily waived their rights, clearly stated in the franchise agreements they signed.
But as the court conducted its inquiry into the legal dispute, it explored whether the UPS Store operators understood that they were waiving their rights to a jury trial. MBE attempted to show that they were inconsistent in their arguments. They explained, first they said they didn't understand the waiver, but then argued that they did know they were waiving their rights only if such waivers are permitted under California laws. But Judge Wright ruled in the franchisees' favor saying that it was obvious from discussions of the franchisees that they misunderstood the waiver provision in their contracts.
The court further stated that although the waiver provision was indeed in all capital letters in a stand-alone section of the agreements, that wasn't enough. It found that to be counterbalanced with the fact that the provision was in a lengthy agreement with numerous exhibits attached. Therefore, the court was reluctant to find that the waiver clause was conspicuous.
Attorneys Michael Hankes and Peter Lagarias, representing the two groups, said they were extremely pleased with the ruling. "We are obviously very happy with the decision stating we get to keep the jury," said Hankes in an interview. "This is the first case that will be in a jury setting, as the others were sent to arbitration."
Lagarias agrees, stating, "The right to a jury trial is one of our greatest constitutional rights in this country, and the court has ruled consistent with federal case law. It analyzed the fact that these are take it or leave it agreements and reached the conclusion that this wasn’t a knowing waiver." He said they are ready to proceed and develop the case for a jury trial.
Hankes has been representing MBE and UPS Store franchisees since 2001. Lagarias was brought in to the litigation in 2003.
In response to this latest ruling, Mail Boxes Etc. issued a statement from its Public Relations Department saying, "Tuesday's ruling has nothing to do with the merits of the case; it is merely procedural. We respect the courts ruling, however, continue to maintain our position that we have violated no laws or elements of the franchise agreement and we look forward to the opportunity to present our case to the jury."
As one anonymous franchisee stated, "This is a big win for the Brown Shield Association. Mail Boxes and UPS were fighting like hell to keep this out from in front of a jury."
Related articles:
- Appeal Court Reverses Decision, Sends Mail Boxes Etc. to Trial
- Mail Boxes Etc. Remains Confident It Will Prevail in Court
- California Superior Court Rules for Franchisor Mail Boxes Etc.
| Attachment | Size |
|---|---|
| MBE Decision on Jury Trial.pdf | 48.56 KB |
- Franchise topic:
jd, post the Court File number and I will take a look.
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
My My My---the things you read in depositions.
This is from the in house attorney for Mail Boxes Etc, Rich Kohlman,
the plaintiff's attorney, Boulter is taking the depo:
Q. Were you aware that the Boston Consulting Group came to the conclusionthat 77 percent of the network -- when I say "network," I mean 77 percent of thestores -- were operating in what it called either an at risk or worse status?A. No.Q. And assuming that fact were true, that they -- franchisees -- 77 percent ofthe network was operating at a -- poorly performing financially, would you agreewith me that that information should be disclosed to prospective franchisees?MS. BARRETT: Same objections. Well, no, because it's not. I'm sorry.Asked and answered was my last objection. Calls for a legal opinion, may call forattorney-client privileged information, also calls for work product, including mentalimpressions of this witness. (Instruction not to answer.)BY MR. BOULTER: Q. Would you agree with me that that would beimportant information for a franchise to know?MS. BARRETT: Same objection as the prior one and instruction. (Instructionnot to answer.)They didn't have to spend so much money to find out if The UPSS was a failure.
They could have just listened to the FAC!
November 2, 2005
FAC Representative
Region 4
12430 Tesson Ferry Road
Saint Louis, MO 63128
314-849-4466
314-849-5270 fax
retterling1648@theupsstore.com
It seems like you guys are playing for market share during tough times. VERY SMART MARKETING.
Too much fun to be had, here are some more from the Kohlman depo. Doesn't seem like they think much of their franchisees
BY MR. BOULTER: Q. Are you aware of the fact that some UPS executiveshave expressed the view that MBE franchisees are only seeking corporate welfarewhen asking for increased incentives?A. No.Q. Okay.A. I'm not aware of that if it's a fact or a potential fact or not a fact.Q. Assuming that were established as a fact, is that something that MBEshould be disclosing to its franchisees?MS. BARRETT: Same objection and I'm adding speculation, yeah, no --never mind.MR. BOULTER: And –MS. BARRETT: Same instructions. (Instruction not to answer.)Motion to Compel Answers from Deposition Questions
Rich Kohlman is the deponent
Q. When you arrived at MBE and you were present -- and you saw that the risk factor disclosure was being made, did it occur to you that that was a helpful document for the franchisees?
MS. BARRETT: Objection; attorney-client privilege. Don't answer that.(Instruction not to answer.)
BY MR. BOULTER: Q. Okay. Did you ever consider taking --not -- not making the risk factor disclosure part of the UFOC?
MS. BARRETT: Objection; attorney-client privilege, work product, mental impressions. Don't answer that. (Instruction not to answer.)
MS. BARRETT: And as to the first objection, Counsel, I would like to add work product.
Q. Did anyone from UPS get a solicitation for input?
A. No.
Q. Why not?
MS. BARRETT: Objection; attorney – why not? You're asking why he didn't send it to UPS?
MR. BOULTER: That's my question.
MS. BARRETT: I'm going to instruct him not to answer and think about thisquestion for a second. All right? So just reserve it for the afternoon.
Q. Do you think that it would be helpful to have input from UPS personnel on the risk factors?
A. My opinion?
Q. Yes.'
MS. BARRETT: No, I'm not -- you know, all of these questions about UPS,I'm not going to let him answer right now.
Q. Have you ever rejected a – the suggestion from the top management atMBE that a subject should or should not be concluded – or should be included in the risk factors?
MS. BARRETT: Objection; attorney-client privilege, work product. Don'tanswer it. (Instruction not to answer.)
Q. You would agree with me that every --every Uniform Offering Circularre presentation has to be accurate as of the time that it's made, wouldn't you?
MS. BARRETT: Are you asking him for a legal opinion on that? Are you asking – asking him –
MR. BOULTER: That's not -- not a legal opinion.
MS. BARRETT: Well, what is it?
MR. BOULTER: It's a factual opinion.
BY MR. BOULTER: Q. Does -- does the UFOC have to be accurate at thetime that they're handed out to prospective franchisees?
MS. BARRETT: I'm not going to let him answer that. I mean, that's callinghim to ask --act as a lawyer to tell you what the various state laws say about accuracy. I'm not going to do it. (Instruction not to answer.)
BY MR. BOULTER: Q. You would agree with me that the statements madein the risk factors should be accurate at the time they are given to the franchisees;correct?
MS. BARRETT: Objection; attorney-client privilege, really calls for a legal opinion, beyond the scope of the deposition -- no, strike that one -- and mental impressions and work product. Don't answer it. (Instruction not to answer.)
Q. You would agree with me that MBE would not or should not make inaccurate statements in its risk factor disclosures. True?
MS. BARRETT: I'm going to write this one down. Inaccurate statements.Okay. Don't answer it now. (Instruction not to answer.)
Q. Why -- why does MBE use the term "primarily" on -- in -- as modifying"local marketing" or modifying "success or failure"?
MS. BARRETT: He's not going to interpret the document for you. It says what it says. (Instruction not to answer.)
BY MR. BOULTER: Q. What is your understanding of "primarily"?
MS. BARRETT: No, he's not going to define "primarily" for you. Don't answer that question. (Instruction not to answer.)
Q. Do you ever recall discussing the subject matter of risk factors in any ofthose meetings?
MS. BARRETT: Objection; attorney-client privilege. Don't answer that question. (Instruction not to answer.)
MR. BOULTER: Well, let me ask you, Ms. Barrett, how am I going to find out from any witness at MBE what things should or should not have been and what things were discussed about being put into the risk factors?
MS. BARRETT: I don't know. I'm not here to be deposed. You –
MR. BOULTER: Well, you're instructing this witness not to answer?
MS. BARRETT: Correct.
MR. BOULTER: And you're going to instruct MBE management not to answer based –
MS. BARRETT: Depends on your question, all depends on your question.
BY MR. BOULTER: Q. Do you recall a meeting where – any meeting whatsoever where the subject of risk factors was discussed with any top management at MBE?
MS. BARRETT: No. Don't answer that question. (Instruction not to answer.)
MS. BARRETT: Object; attorney-client privilege.
BY MR. BOULTER: Q. Do you recall meeting with any executive at MBE where the subject matter of risk factors was discussed?
MS. BARRETT: Don't -- objection; attorney-client privilege. (Instructionnot to answer.)
Q. Are you aware of any executive from MBE making any decisions withrespect to the risk factors?
MS. BARRETT: Objection; attorney-client privilege. (Instruction not toanswer.)
BY MR. BOULTER: Q. Are you aware of any changes that were made to therisk factors at the direction of any MBE executive?
MS. BARRETT: Objection; attorney-client privilege. (Instruction not toanswer.)
Q. Would you agree with me -- or are you aware of the fact that if UPS sets the maximum prices too low, that a franchisee's profitability will suffer?
A. I don't know.
Q. Do you think that it's incumbent upon you to find that out inmanufacturing or creating these risk factors?
MS. BARRETT: Are you asking him his opinion on that? Don't answer, if that's the case. (Instruction not to answer.)
BY MR. BOULTER:Q. If you're responsible for drafting the content of the risk factors in consultation with your client, isn't it true that you need to be looking for other risks that are out there that you should be advising the franchisees of?
MS. BARRETT: Well, don't answer that right now. (Instruction not to answer.)
MS. BARRETT: Attorney-client privilege, work product, mental impressions. Let me write that one down. Can you read it back to me, Ms.Reporter, I didn't get the whole thing. (Record read.)
MS. BARRETT: All right. I -- I don't need to -- I will stand on my objection; attorney-client privilege, work product. Instruction not to answer.)
A. If UPS offers a profit margin on UPS shipping, will there be less of a profit margin on the shipping for the franchisees?
Q. Yes.
A. Yes, by its own terms of what you just said.
Q. And is that not a risk that MBE thinks it should be disclosing to itsfranchisees?
MS. BARRETT: Objection; work product, attorney-client privilege. Don't answer that. (Instruction not to answer.)
Q. Okay. Would you agree with me that the description of the risks should not be misleading?
MS. BARRETT: I'm going to object to that question. I don't know what -- I think that's a legal -- asks for a legal opinion as to what "misleading" means.
BY MR. BOULTER: Q. Do you understand –
THE WITNESS: Am I allowed to answer?
MS. BARRETT: Huh-uh. (Instruction not to answer.)
Q. Have you -- are you aware of the fact that the model -- the business model, is designed to achieve profitability in three years?
A. No, I -- I'm -- no.
Q. All right. Assuming that fact is true, is that something that you think should be disclosed in the risk factors?
MS. BARRETT: Objection; calls for a legal opinion and his mental impression, assumes facts not in evidence and I don't even know if you have a good faith belief that's true, so he's not answering that. (Instruction not to answer.)
MR. BOULTER: Well, I can meet that latter objection, but assuming I meet it, you're going to let him answer it?
MS. BARRETT: No, you're asking him for his mental impressions as a lawyer of this company and therefore it's a legal opinion.
BY MR. BOULTER: Q. Okay. Are you aware of the fact that Mr. Inzunza has told outside -- people outside MBE that the model was designed to achieve profitability in three years?
A. No. I'm -- I'm not aware of that fact, if it is a fact.
Q. All right. Are you aware of the fact that Mr. Drisaldi has told people outside MBE that the model was designed to achieve profitability in three years?
A. I'm not aware of that fact, if it is a fact.
Q. Have you -- as a -- as a representative for MBE, as you sit here today,assuming those facts are true, that this model is not designed to achieve profitabilityuntil three years, is that something that MBE should be disclosing to itsfranchisees?
MS. BARRETT: No. You're not going to answer that question. (Instructionnot to answer.)
Q. Were you ever aware of a possible fact that the breakeven for franchiseesis 17- to 18,000in STR monthly?
A. No.
Q. Looking on the previous page -- well, let me ask you this: Assuming thatthat fact is true, do you think that should be disclosed to franchisees?
MS. BARRETT: Objection; calls for work product, mental impressions. Not-- please don't answer that question. (Instruction not to answer.)
Q. Were you aware of the fact that as you add new stores, averageprofitability goes down?
A. I'm not aware of that, if it's a fact or not a fact. Either way, I'm not awareof it or wasn't aware of it.
Q. Right. If that were a fact, would that be important information for afranchisee to know?
MS. BARRETT: Objection; incomplete hypothetical, calls for a legalopinion and mental impressions. (Instruction not to answer.)
BY MR. BOULTER: Q. Do you believe –
MS. BARRETT: And work product. I'm telling you not to answer it.(Instruction not to answer.)
BY MR. BOULTER: Q. All right. Would MBE -- should MBE have disclosed that fact, if it were true, in the risk factors section of the Franchise Offering Circular?
MS. BARRETT: Same -- same -- can I say "same objection --"
MR. BOULTER: Yes.
MS. BARRETT: -- without waiving it? Okay. Same objections.
MR. BOULTER: And instruction?
MS. BARRETT: Same instruction. (Instruction not to answer.)
Q. Would you agree that if MBE executives were concerned about the levelof growth, that fact should have been disclosed to franchisees?
. BARRETT: Same objection. Do you want me to state it again?
MR. BOULTER: No. Same instruction not to answer?
. BARRETT: Same instruction. (Instruction not to answer.)BY MR. BOULTER: Q. Were you aware of the fact that MBE executivesheld the view that incentives – UPS incentives on ground products needed to beenhanced? I'm referring to page 1483.A. No. I was not aware of it as a fact or potential fact.Q. Would that have been something you thought you might disclose tofranchisees if you had been aware of it?MS. BARRETT: Same objection and instruction. (Instruction not to answer.)BY MR. BOULTER: Q. Did you ever disclose that to franchisees in theOffering Circular or the risk factors?A. Disclose -- say that again.Q. Assuming it is a fact –A. What?Q. -- that MBE executives knew or believed that UPS needed to enhance theincentives on ground products, was that ever disclosed to franchisees?A. That they knew it?Q. Yes.A. No. The FOC and the exhibits to the FOC don't disclose what someofficer supposedly knew. I mean that they -- the fact that they knew something, it'snot the job of the Offering Circular to describe what our officers know.Q. Well, if it's a risk factor, it is, isn't it?MS. BARRETT: What are you asking him about?BY MR. BOULTER: Q. Well, if they know something as a risk factor thatneeds to be disclosed; correct?MS. BARRETT: No. You're asking him for a legal opinion here, he's notgoing to do that. I will instruct him not to answer on the basis that it calls for a legalopinion and his mental impressions and his work product. (Instruction not toanswer.) Q. Did you ever disclose to the franchisees in the Offering Circular or in therisk factors that the new model, the UPS term model, required a – a significanteffort to up sell to AIR in order to meet the same breakeven levels as under the oldmodel?A. As you -- as you say that to me, I – I don't recall that being in the OfferingCircular.Q. Okay. Were you aware of that fact?A. I don't know if that is a fact.Q. Were you aware of that possible fact?A. No. I was not aware of that possible fact.Q. Is that something you think, if it were a fact, would need to be disclosed tothe franchisees?MS. BARRETT: Same objection and instruction. (Instruction not to answer.) Q. Are you aware of the fact that UPS actively solicits six-digit accounts inthe territories of its franchisees?A. No.Q. And I'm talking about MBE franchisees.A. Same answer.Q. If you were aware of that fact, do you think you would disclose that in therisk factors?MS. BARRETT: Same objection and instruction. (Instruction not to answer.)BY MR. BOULTER: Q. Would you agree with me that would be importantinformation for a franchisee to know?MS. BARRETT: Same objection and instruction. (Instruction not to answer.)BY MR. BOULTER: Q. Were you aware of the fact that the pricing levelthat UPS sets for UPS shipping services, the maximum price UPS sets for shippingservices, is driven only by what the competition is pricing their shipping servicesat?A. No.Q. If you had been aware of that fact, would that be something that would be-- you think should be disclosed in the Franchise Offering Circular risk factors?MS. BARRETT: Same objection and instruction. And I do want to note thatjust – I hope you're telling this witness these are all true facts, that you're assumingthey're all true facts. (Instruction not to answer.)MR. BOULTER: Well, I -- assuming -- I'm asking the question, assumingthose are true facts. I want him to know –MS. BARRETT: You're assuming -- okay.BY MR. BOULTER: Q. Assuming that these -- that is a true fact, is thatsomething that you think should be included in the risk factor?MS. BARRETT: Same objections and instruction. (Instruction not toanswer.)BY MR. BOULTER: Q. Would you agree with me that that would beimportant information for a franchisee to know?MS. BARRETT: Same objections and instructions. (Instruction not toanswer.)BY MR. BOULTER: Q. Were you aware of the fact in 2007, 2008 that UPStold Mr. Mathis that it had no room to improve incentives?MS. BARRETT: Assuming that fact is true, is that what you're saying? THEWITNESS: Can I answer?MS. BARRETT: Uh-huh. THE WITNESS: No, I'm not aware of that.BY MR. BOULTER: Q. If you were aware of that fact, do you think it wouldhave been disclosed in the recent risk disclosure documents?MS. BARRETT: Same objection and instructions. Instruction not to answer.)Q. Assuming that fact were true, would you agree with me that that would beimportant information for a franchisee to know?MS. BARRETT: Same objections and instructions. (Instruction not toanswer.)Q. All right. Have you ever -- are you aware of the fact that UPS has a policyin place whereby it will not make changes to incentives unless they are revenueneutral?A. I'm not aware of that.MS. BARRETT: I'm not either.BY MR. BOULTER: Q. If that -- assuming that fact were true, would that beinformation that would be disclosed in the risk factors?MS. BARRETT: Same objections and instructions. (Instruction not toanswer.)BY MR. BOULTER: Q. Assuming that fact were true, would that be --would you agree with me that that would be important information for a franchiseeto know?MS. BARRETT: Same objections and instructions. (Instruction not toanswer.) BY MR. BOULTER: Q. Are you aware of the fact that some UPS executiveshave expressed the view that MBE franchisees are only seeking corporate welfarewhen asking for increased incentives?A. No.Q. Okay.A. I'm Q. Assuming that were established as a fact, is that something that MBEshould be disclosing to its franchisees?MS. BARRETT: Same objection and I'm adding speculation, yeah, no --never mind.MR. BOULTER: And –MS. BARRETT: Same instructions. (Instruction not to answer.) not aware of that if it's a fact or a potential fact or not a fact.
you find it funny that the attorney is trying to protect her client.
If you are going to post some, why not scan them and post them all.
I'll restate:
You are having fun with the fact that the attorney is protecting their client.
JD: your comment is premised on the assumption that the attorney is protecting the client. I don't necessarily agree.
From the (admittedly, limited) segment posted above, I would lean towards Mr. Morrill's view that this is going to tick off the Judge.
I don't know why an attorney is being deposed, and that might be pertinent here. But even assuming that UPS might have valid claims of privilege, if the Judge did not quash or set parameters (sua sponte or on motion) on the deposition, then I suspect that Ms. Barrett may have won the battle but risked losing the war.
Paul Steinberg
Franchisee Attorney, New York City, Ph: 212-529-5400
Paul Steinberg, Franchisee Attorney, New York City, Ph: 212-529-5400
Looks to me like Mr. Kolman is being hung out to dry by UPS. If his work product was less than competent and UPS approved of his contribution to the FOC, it seems they are still culpable of perpetuating fraud to future franchisees. There have to be records of who Kolman interviewed at MBE in his research of Risks.( And if he did not speak to MBE officers, can his work be considered competent?) Did he have appropriate financial analysis of the new "business model"? Can he prove he had NO knowledge of the Boston Consulting Group's report?
This continual claim of "privilege" is so arrogant that it makes me want to "hurl"! (That's MBE speak for vomit, right ,Rich?) The only way UPS has to cover their complicity is to try legal maneuvers and hope that the Judge isn't going to catch on. How sad.
Mr. Kolman is an employee of UPS not MBE. (Kolman Dep. 23:1) Mr.
Kolman testified that he had never seen the deposition notice and attached
document request at issue. (Kolman Dep. 12:22-13:4.) Mr. Kolman did not see
this Court’s full order compelling the deposition and production of documents.
(Kolman Dep. 13:14-16.) Mr. Kolman says he searched but did not “think” he
found documents relating to communications between MBE and outside counsel
ordered produced by the Court. (Kolman Dep. 15:25-16:10.) Mr. Kolman searched
his e-mails to and from outside counsel dating back to 2005 or 2006. (Kolman
Dep. 16:17-23.) But he did not search attachments to those e-mails. (Kolman Dep.
20:20-22.) And his computer crashed in summer of 2006 and he lost all of his prior
e-mails. (Kolman Dep. 30:1-7.) And while he tried and was unable to get the
emails restored for his own purposes he did not make an inquiry about whether
MBE could restore the e-mails in response to this instant deposition notice.
(Kolman Dep. 30:10-14.) Moreover, Mr. Kolman did not ask his outside counsel to
search their records for the e-mail communications. (Kolman Dep. 15:7-9.) Mr.
Kolman did not search his e-mails to and from area franchisees or to or from the
franchisee associations for possible communications on the risk factors. (Kolman
Dep. 42:23-43:8.) Although such groups apparently offered input on the content of
the UFOC and risk factors. (Kolman Dep. 35:18-25.) Mr. Kolman did not search
his calendar for relevant meetings as was called for in the notice. (Kolman Dep.
68:-4-13.)
The problem I have with this is that this poster is pulling out one piece of the depositions. Are we looking at all of the documents? No. The judge may have set parameters. we don't have the information.
H20 is playing this out on the website, just like other posters have(R&D, Tinker, etc). It's not until you see the whole body of work that you can gain a clear understanding of the situation.
You can hope for some money, but I doubt you will get the justice you seek.
The Truth Shall Set You Free!
TIF
The Truth Shall Set You Free!
TIF
http://www.axifile.com/fi.php?f=9788199&s=1216646110
Hankes is a very good lawyer. But even he must be amused by the way he won: the Court decided, in part, that since even the plaintiff attorneys did not understand the what the waiver of jury trial meant, the waiver was not clear!
The plaintiffs thought since California law prohibited waiver of jury trial, except for some exceptions which did not apply, then they could sign the waiver without giving up their rights under California law.
Oops, federal law and not California law applies when there issues in diversity. No federal law which prohibits waivers to jury trial.
So, California law doesn't apply - which would have prohibited the waiver of jury trial.
But since Federal law does apply, the Judge looked at the 4 elements in the test: concluding that since even the plaintiff's lawyers misunderstood the significance of the waiver clause, the plaintiffs likely misunderstood it significance.
Cool - you are wrong, but since you are wrong, then you win.
Michael Webster PhD LLB
Franchise News
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
When a contract provides for something that is against the public policy of the state in which the franchisee is located, the franchisor is required in his state specific disclosures exhibit to odisclose that in that state the clause about waiver of jury trial (in this instance) will not be enforceable in California.
If the plaintiffs were California franchisees, that is the basis on which it should have been decided, and vaguness should not have been an issue.
If that is not the governing principle because these were not California franchisees, then the court had to look elsewhere for guidance.
However, in a diversity case, one looks to state law, not Federal law unless a specific federal statute is in play. One would look to Federal law if the question were procedural rather than substantive. Waiver of jury trial is part procedural and part substantive. But if there is an applicable state statute present, one does not look any further in the absence of a claim that the statute is unconstitutional.
The potential problem with the ruling is that if it is wrong, there wil be a successful appeal of any Plaintiff's victory, and the whole case will come back to the lower court for retrial.--
Richard Solomon, FranchiseRemedies.com, has over 45 years experience with franchise litigation and crisis management. He is a graduate of The Citadel and The University of Michigan Law School
Richard Solomon, FranchiseRemedies.com, has over 45 years experience with franchise litigation and crisis management. He is a graduate of The Citadel and The University of Michigan Law School
The Court wrote: "The right to a jury trial in federal court is governed by federal law. Simler v. Conner, 372 U.S. 221, 222 (1963)."
Right or wrong? Cites, if wrong.
But it won't make difference, under California law they were automatically entitled to a jury trial. Unless the federal decision is appealed, these folks will have their jury trial.
Michael Webster PhD LLB
Franchise News
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
So there are two bases to rule in favor of jury trial, and there will be no successful appeal. Even if the rationale of the decision is wrong, the right rationale will yield the same answer, so the error would be harmless error.--
Richard Solomon, FranchiseRemedies.com, has over 45 years experience with franchise litigation and crisis management. He is a graduate of The Citadel and The University of Michigan Law School
Richard Solomon, FranchiseRemedies.com, has over 45 years experience with franchise litigation and crisis management. He is a graduate of The Citadel and The University of Michigan Law School
Guest writes: "Part of the problem with this tricky FOC (FDD) is that a potential buyer plunks down $7,500 in non-refundable money before he or she even gets to see the volumous document"
Illegal practice which should be reported.
Guest writes: " I know what a waiver of jury trial is, but I might not understand what it means to me."
Guest don't feel bad, I will bet that 99/100 lawyers would have got the import of this clause wrong - I would have been one of the 99.
Yet another example of federal law trumping state rights.
Michael Webster PhD LLB
Franchise News
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
Don't really care what you are buying - read the judgment.
"Consequently, Plaintiffs mistakenly rely on an exception based on inapplicable law."
Michael Webster PhD LLB
Franchise News
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
Hoping and wishing is the plan! Although it is not a good plan.
The Truth Shall Set You Free!
TIF
The Truth Shall Set You Free!
TIF
TIF, the Plaintiffs won, in part, because the waiver clause was so complicated even very experienced attorneys couldn't make head nor tail of it - at least according to the Judge.
Michael Webster PhD LLB
Franchise News
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
I agree that UPS failed the general test, but it is a testament to tricky legal points that an agreement which on its face appears contrary to California law, when it reaches the federal level, changes its spots.
The applicable law becomes federal because of diversity. Don't you think that this trick is used by franchisor lawyers all the time?
I do.
Michael Webster PhD LLB
Franchise News
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
Why yes of course! However this "sue for peace" matter and the plaintiffs still have a tough row to hoe. However my personal opinion is that UPS has been a bad actor and they should settle, but they may fight and win.
The Truth Shall Set You Free!
TIF
The Truth Shall Set You Free!
TIF
Pretty sure that both Michael and Peter are not suing for peace, but rather very large damages.
Both of these attorneys have been on the cutting edge of this litigation for many years.
Suspect that they will prevail.
And this is sheer speculation - but from what I understand from the public record, it seems that there was a serious and sustained fraud here.
I could be wrong, but it appears that UPS knew that their test case, the Gold Shield Program, was a failure and nonetheless told prospects that the conversion program was viable.
Very hard to believe that a public corporation such as UPS would engage in this type of deception.
But what if it is all true?
Michael Webster PhD LLB
Franchise News
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
UPS should settle. They should have settled some time ago.
The Truth Shall Set You Free!
TIF
The Truth Shall Set You Free!
TIF
UPS should come to the realization that their business model is broken and work on a new one.
Unfortunately, they refuse to accept the basic business reality -partly for fear of liability.
But the basic business model is something that could easily be modeled and negotiated to a satisfactory resolution.
Michael Webster PhD LLB
Franchise News
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
Gosh, Michael, don't you have any real thieves in Canada?--
Richard Solomon, FranchiseRemedies.com, has over 45 years experience with franchise litigation and crisis management. He is a graduate of The Citadel and The University of Michigan Law School
Richard Solomon, FranchiseRemedies.com, has over 45 years experience with franchise litigation and crisis management. He is a graduate of The Citadel and The University of Michigan Law School
Hmm, two of biggest corporations Seagrams and Molson were built on bootlegging revenue.
And the character of Canada is exemplified by Bre-X, Nortel, and the very minor noble Conrad Black.
Draw your own conclusions.
Michael Webster PhD LLB
Franchise News
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
If MBE/UPS franchisees win at trial they are likely to be unsatisfied with the result. If the court rules in your favor it will determine a monetary value for loss that may be far below what you deem fair and before the franchisees get paid the lawyers will get their fees and expenses.
And remember you still have to prove your case to win. Oh and let's not forget about appeals.
The Truth Shall Set You Free!
TIF
The Truth Shall Set You Free!
TIF
First of all there are no criminal charges.
Secondly, whenever someone says it is not about the money you can bet its absolutely about the money.
Finally it's really hard to spend a pound of flesh.
The Truth Shall Set You Free!
TIF
The Truth Shall Set You Free!
TIF
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