Judge Promises One-sided Decision after UPS Trial Ends
That concluded the reporting from correspondent Cynthia Cohen, Ph.D. for Courtroom View Network (CVN), after the second day of trial. She said that the judge indicated that he believes there are merits on both sides and he has taken this case under submission. He also invited the losing side to take their case to the Court of Appeals to look further at the issues. As they get the ruling from Judge Highberger, Cohen said CVN will report it.
Both sides gave their rebuttal to conflicting arguments of the trial. Michael Aguirre, attorney for the franchisee plaintiffs, made his key points asking “with what consent was given for unilateral change?” Referring to the Badie case, he said subject to provisions of the agreement there shall be no changes if they unreasonably , materially increase franchisees’ obligations. The second point Aguirre made was UPS giving bad faith reading. Referring to the Carma case he said they can do what they wanted to do. But he asserts, the franchisor had the right to tweak the name and they didn’t do that in 20 years. “That’s why the changing of the name is governed by good faith,” he argued.
After Aguirre raised the proposition referred to as the “reduction to the absurd,” he said “Mr McDonald said it could make any change without regard to good faith, what parties agree to, etc., that would be an absurd result,” according to Cohen’s report. But in Mark McDonald’s rebuttal, he started with that last point. He said he wanted to show the inconsistency of their position, stating, “It would be absurd to interpret it as if they wanted to renew, to sign a “then-current” contract…but then they showed a document that says, “well that’s the law”...that is clearly not an absurd proposition. Again we are not deciding issues of fact; we are interpreting a document,” CVN reported.
McDonald further explained that all franchisees operated for their full term without modifications. He said that contract came to an end. They agreed to the one condition of renewal: to abide by the terms and conditions of the “then-current” contract agreement. He again stated there is no language in the contract to support “evolutionary not revolutionary” change, which Aguirre argued in his opening statements.
Read the detailed report by Cynthia Cohen of Courtroom View Network after she sat in on the trial each day in Los Angeles and blogged about the proceedings that took place. ($25 subscription fee required to have access to all of the blogs)
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- Franchise topic:
any updates on this decision or upcoming trial?
...we haven't heard anything about this case since August? Can anyone, Michael Webster, Mario Herman, anyone at all explain to all of us TUPSS owners what the court is doing? I've been looking everywhere trying to catch up on part 2, the class-action, and cannot find anything anywhere on the Internet. Please advise.
Thanks in advance!
i am wondering the same.long time franchisee,getting destroyed!what can i do???
Many here are in direct contact with the Class Action attorneys..including me! Come to this website, and read! As news comes out, people here will be the first to know! ...and inform your fellow franchisees! Read bluemaumau.org!
nope not yet
Could you please explain why you feel Mr. Mcdonald has the better argument...I have even read the Badie case, (Can't find the Carma one) but would interested in your thoughts. thanks
And then that contract comes to an end.
And the new contract is different? Tuff nuggies, if you don't like it don't sign it. And if that destroys your business, well that is a risk if the business was based upon a short contract.
Now as to if there were any misrepresentation relied on in inducing the formation of that new contract, well that would be "phase two".
GB writes "And the new contract is different? Tuff nuggies, if you don't like it don't sign it. And if that destroys your business, well that is a risk if the business was based upon a short contract."
As usual, our MBA/Attorney/Franchisee fails to address the real issue: if you are given a renewal right to use the trademarks X, and then upon renewal you don't get those trademarks, is this a breach of contract?
The answer is: it depends upon what the franchise agreement says. But very few franchise agreements reserve the right to offer you substitute trademarks upon renewal.
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
MW has a valid point, but I would briefly address GB's assertion regarding contract "renewal."
Paul Steinberg, Franchisee Attorney, New York City, Ph: 212-529-5400
for six years the old marks were still being used by our corporate in the international arena. the mark was only recently sold.
It may be the STRONGER part of the Class Action case (for UPS) that they and MBE had a right to change it's name to TUPSS, but without doubt it is the WEAKER (for UPS) part of the case, the upcoming Aug 25th part, that UPS had the legal right to LIE when they implimented Gold Shield, NOT fulfilling promises made to INCREASE SHIPPING TRAFFIC, but rather doing EVERYTHING IN THEIR POWER to TAKE SHIPPING BUSINESS from TUPSS, thereby causing predictable and known (by UPS) FAILURE EN MASSE of these same Stores (see Boston Study Group report)! One cannot come in promising (the franchisee) to BUILD a business, then proceed to DISMANTLE it! This is no simple Breach of Faith (although it certainly is), rather it is an outright fraud perpetrated on each and every franchisee who was sold this "bad bill of goods"! GOLD SHIELD WOULD WORK ONLY IF UPS INCREASED SHIPPING TRAFFIC ( AS THEY ASSURED THEY WOULD) TO OFFSET A (MANDATORY) DECREASE IN MARGIN (REQUIRED OF EACH NEWLY MINTED TUPSS FRANCHISEE)! UPS knew it, and they proceeded to to do JUST THE OPPOSITE, breaking down (for the franchisee) the entire franchise system and defrauding EACH AND EVERY TUPSS, BOTH THOSE IN THE CLASS, AND ALL OWNERS NOT YET [IN A] CLASS (BUT CERTAINLY SOON TO BE, GIVEN UPS's lack of appropriate FOC disclosure)! Pure, outright, unmitigated and NAKED FRAUD! So says the accumulated evidence, and the August 25th trial will see to the eventual downfall (in this 3500 member Class Action) of UPS, which would certainly be icing on the cake to a ruling in favor of the plaintiff in the August 3 trial, but NOT IMPERATIVE and certainly the more perilous (of the two) part of the lawsuit for the fraud-loving franchisor, United Parcel Service Inc.! VICTORY (for the franchisee) is but a BREATH AWAY! See you in court!
Allow me to clarify the above. The first part of this Class Action concerned NOT ONLY brand/name change, but also (franchise) SYSTEM change, which the plaintiffs argue was NOT in keeping with the FOC! Mr Aguirre forwarded a strong argument in support of this contention (evolution vs. revolution) and this formed the basis for the legal action (against UPS) being ajudicated in this phase of the trial. Phase two, I believe, will focus on accusations that Gold Shield brought immense harm to franchisees, and I feel warrants as much consternation AGAINST UPS/MBE as the brand/name/system change does! But being a two-part trial that the ENTIRE CLASS is in together, whatever the outcome in Phase One is seperate (yet, of course, complimentary) to Phase Two, the later bearing as much weight against UPS as the former! Now, let the process go forward, for it is not the Morgate plaintiffs who have DRAGGED THIS OUT!
August 25th is just a status conference, not a trial.
Simmer down Tonto! Your long rants do not help your cause.
The article said TRIAL was set for Aug 25, LR! So thanks for correcting that, if indeed you are correct! As for "rants", I guess that's a matter of PERSPECTIVE! One man's RANT is another man's POETRY, as in waxing such! Hurt our cause? Doubtful, as this is a place for thoughtful, albeit sometimes very energetic, comment! We're not in court, nor does the court consider this (website) a source for DISCOVERY! It is simply OPINION! What is my "cause"? To see justice from Corporate thievery afforded ALL FRANCHISEES who have SUFFERED because of UPS's despicable actions...non-convertees, convertees, and people who have only owned a TUPSS franchise! When this happens, this former military man will consider it "Mission Accomplished"! Until then, alerting all current and former franchisees to UPS's FRAUD is the purpose of my "rants"! Hope they "enlighten" you! If not, don't read them, as they (admittedly) do tend to be LONG! TB!
TB, thank you for putting it all in plain english. The corporate pigs at UPS are no different than Bernie Maddoff, hopefully some will end up as cell mates.
Aguirre's argument sounds uncomfortably close to asking the judge to re-interpret the contract using extrinsic material after the event.
I would think from this reporting that McDonald has the better argument.
Looking forward to the written decision.
Michael Webster, a franchisee attorney in Toronto, Ontario, publishes a website on business opportunities and franchises called "The BizOp News"
If what you say is true then no franchise in the world is worth the paper it is written on.
Guest writes -
"if what you say is true then no franchise in the world is worth the paper it is written on".
Or it may mean it's what is written in the contract that matters.
If ZOR can destroy profits to the investors nothing matters. They evolved profits to themselves with an undisclosed change to the profit model, anti competitive behavior on all levels, destuction of the trademarks and choosing to withhold vital information to investors that would have allowed them to make informed decisions( the BSG study). If I had access to the BSG study in 2005 in no way would I have moved forward with this bull____ deal.
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