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In Avoiding the Top 10 Mistakes with Distributor Agreements, Glen Balzer, management and forensic consultant and expert witness in domestic and international marketing and sales, shares a checklist of ten common mistakes to avoid when drafting your next distributor agreement. Mistake #2 is entitled Termination for Cause Only.

Most distributor agreements involving seasoned distributors and manufacturers allow for termination for cause and termination for convenience, (or no cause at all). Less experienced partners sometimes attempt to allow for termination for a limited set of specific causes. Termination for cause is sometimes straightforward and without controversy, as when one partner declares bankruptcy. However, partners sometimes disagree over the presence of cause. Partners often disagree over responsibility for cause.

The best distributor agreements allow for termination for cause and for termination for convenience. When an agreement allows termination for convenience, a partner wishing to disengage from the agreement serves Notice of Termination to the other partner with 30 days notice. When the convenience clause is invoked, cause and responsibility for cause need not be argued. More important, the distributor agreement does not end in a legal skirmish. Without a legal confrontation, the distributor and manufacturer are able to focus on their respective customers and businesses without consuming management time, corporate focus and financial resources on attorneys, courts and arbitration.

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31-year-old boxer Joey Gilbert was temporarily suspended in October when the Nevada Athletic Commission announced his positive drug tests. Now Gilbert has filed a motion with the commission to remove its executive director, Keith Kizer, from all further involvement in his case. The commission says Gilbert tested positive for a steroid, amphetamine and three other drugs before and after a fight on Sept. 21. Gilbert alleges that Kizer tampered with a witness when he e-mailed Voy, a respected sports medicine expert witness and author of “Drugs, Sport and Politics” who had agreed to draft a response to the commission, specifically Kizer. RGJ.com also reports:

After receiving Kizer’s e-mail, Voy informed Gilbert he would not complete the draft for him. ‘Contacting our expert witness with an accusation and intimidating e-mail is beyond comprehension,’ (Gilbert’s attorney) Schopper said. ‘I can’t speak for Mr. Gilbert, but I think the unfairness with which he’s proceeded against him in the media … It’s just appalling.’ At the end of the motion, Gilbert offers a partial explanation for a number of positive tests. He reveals he had a prescription for Valium, a sleeping aid that can remain in the system for up to 42 days and that can metabolize into nordiazepam, temazepam and oxazepam, three of the initial six drugs Gilbert tested positive for.

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In Avoiding the Top 10 Mistakes with Distributor Agreements, Glen Balzer, management and forensic consultant and expert witness in domestic and international marketing and sales, shares a checklist of ten common mistakes to avoid when drafting your next distributor agreement. Mistake #1 is entitled Too Much Too Fast.

Every new partnership between a distributor and a manufacturer is born in a period of bright optimism. Like marriage, there is a limit on the number of partnerships in which a supplier or distributor may engage. By aligning with a new distributor, a supplier is prohibited from singing an alternative distributor. By aligning with a new supplier, a distributor is prevented from immediately signing an additional supplier. When aligning with a new distributor, it is important to assign a territory that is not too large initially. If a distributor is proven in only small territory, it is not prudent to assign a large territory and hope for the best. A better policy would be to open a new distributor relationship in that distributor’s proven territory and expand the territory gradually, after results in the smaller territory suggest that an expanded geography is judicious.

Glen Balzer, President of New Era Consulting, can be reached at glen@neweraconsulting.com.

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Former Orange County Sheriff Michael S. Carona, charged with selling access to his office for cash, favors and gifts, has retained Jones Day on a pro bono basis. An allegedly corrupt sheriff who is making about $200,000 a year in retirement makes for an unusual pro bono client but colleagues say Jones Day Los Angeles attorney Brian A. Sun took the case because he considers it an example of government overreach.. Carona will pay the cost of law enforcement expert witnesses, his local attorney, and investigators. LATimes.com also reports:

…Sun offered to handle it pro bono as long as Carona resigned. Carona would continue to pay all costs of the defense, such as investigators and expert witnesses. Carona also agreed to pay Jones Day’s legal fees up to the date of his resignation this month, and he continues to pay H. Dean Steward, a San Clemente attorney who has represented him for more than two years. “To suggest that he’s getting a free legal ride is wholly inaccurate,” Sun said. “Mike and his family will likely expend much of their net worth defending these charges.”

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St. Luke’s Magic Valley Regional Medical Center has sued a Washington attorney who represented the hospital between 2003 and 2006 saying that Tom Luciani did not adequately defend against claims of Medicare fraud and other record-keeping practices. When the hospital discovered Luciani had no plan to produce a medical billing expert witness to counter testimony from a plaintiff’s witness, it hired its own counsel in 2006. Times-News Magic Valley.com also writes:

The complaint, filed Jan. 17 in U.S. District Court in Boise, claims that Tom Luciani intentionally breached his fiduciary duty and committed professional malpractice while representing the hospital and Farmers Insurance between July 2003 and early 2006. Luciani was brought on by the insurance company to represent the hospital during litigation that started in 2001 with a tort claim against the hospital by two former employees….

According to the hospital’s most recent court filing, Luciani had a longstanding relationship with Farmers, which brought him in to replace another lawyer when the case moved to federal court. Following the desires of the insurance company, the complaint states, Luciani’s strategy focused on protecting Farmers from any damages while leaving the hospital open to a possible $22 million judgment.

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Ed Poindexter, former head of Omaha’s Black Panther chapter, is appealing his conviction for the 1970 bombing murder of Omaha Policeman Larry Minard. The Neraska Supreme Court will examine two key points that emerged from testimony in May 2007 in Douglas County District Court. Michael Richardson of OpEdNews.com writes:

Poindexter and his co-defendant, Mondo we Langa (formerly David Rice), who both maintain their innocence, were convicted largely on the brokered testimony of 15 year-old Duane Peak, the confessed bomber, and dynamite allegedly found in Langa’s basement. Peak implicated Poindexter and Langa in exchange for a lenient sentence as a juvenile instead of facing the electric chair. Contradictory police testimony about the dynamite and expert witness testimony that Peak did not make the emergency call that lured Minard to his death have opened a huge breach in the prosecution case against the Panther leader.

Langa raised the issue of the voice on the tape in a 1983 appeal to the Nebraska Supreme Court. At that time, the Court noted there had been no “expert in voice analysis” examination of the tape and thus, “there is insufficient evidence to support the claim that Duane Peak did not make the call.” However, in May 2007 Judge Bowie did hear expert witness testimony about the voice on the tape. Voice analyst Tom Owen testified that in his opinion the voice was not that of Peak thus undermining the credibility of the state’s chief witness.

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Bill Muzzy’s testimony is crucial in the civil trial against TRW Vehicle Safety Systems, the company that manufactures seatbelts for General Motors. The seat belt and air bags expert witness was cross examined for five hours in the 146th District Court in Killeen Texas. Muzzy maintains that a design flaw in a seatbelt led to the death of Jenny Singley. kdhnews.com also reports that the expert witness’s credentials include his role as investigator of the restraint system in the fatal Dale Earnhardt crash and 5,500 experiments on human volunteers for the Navy and Air Force during the Cold War, which involved testing human tolerance to acceleration. “We have all the evidence in total to show the seatbelt didn’t operate correctly,” Muzzy said. “This is the most likely scenario.”

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Jonathan Evans and his co-counsel, Michael Edmiston, won in back-to-back arbitration hearings before Los Angeles based Financial Industry Regulatory Authority arbitration panels. In both cases, the conduct of the brokers and their firms was so shocking that both arbitration panels awarded attorney’s fees and securities expert witness fees along with sizable compensatory damages. Street Insider.com also reports that in the second hearing:

Evans represented a single-mother of two whose broker, Shapour Javadizadeh, of RJJ Pasadena Securities caused massive trading losses in her account with a high-risk option trading strategy. His client inherited the account from her father in 2002 and was using the money to pay her living expenses while rebuilding her life. In a hard-fought week of hearings, which saw numerous “attorney-only” conferences with the Arbitration Panel, including one which resulted in sanctions against the Respondents for their shenanigans in withholding documents, Evans prevailed for his client. The Panel awarded $151,000 in compensatory damages, attorney’s fees, expert witness fees, and sanctions.

“During my cross-examination of the broker, I was amazed when he literally stood up before the Panel and admitted he did everything complained about in the Claim. It was a moment out of a courtroom drama, and his admission won the case for us,” said Evans, reflecting back on the hearing. The FINRA case number is 06-04288 and the award may be found at http://www.finra.org.

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Detroit Mayor Kwame Kilpatrick and chief of staff Christine Beatty were both charged with perjury after they lied under oath about a possible affair between them from 2001 to 2003. M.L. Elrick and David Ashenfelter of FreePress.com write:

The false testimony potentially exposes them to felony perjury charges, legal experts say. Kilpatrick, a lawyer, could also face discipline if the state Attorney Discipline Board finds he lied in court. The Michigan Rules of Professional Conduct, which govern attorneys, say even nonpracticing lawyers in public office can be sanctioned for dishonesty. “Lawyers holding public office assume legal responsibilities going beyond those of other citizens,” the code states.

Lying under oath is one of the worst sins a lawyer can commit — akin to stealing a client’s money, legal ethics expert witnesses said…”It’s literally the equivalent of the death penalty for a law license,” said Michael Schwartz, former administrator of the Michigan Attorney Grievance Commission, which investigates lawyers.

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Jonathan Evans and his co-counsel, Michael Edmiston, won in back-to-back arbitration hearings before Los Angeles based Financial Industry Regulatory Authority arbitration panels. In both cases, the conduct of the brokers and their firms was so shocking that both arbitration panels awarded attorney’s fees and securities expert witness fees along with sizable compensatory damages. Street Insider.com also reports that in the first hearing:

…Evans represented a senior citizen and his wife against A.G. Edwards and its broker, Anthony Russo. Mr. Russo, a broker who had a prior history of discipline including both a termination from a firm and a regulatory suspension for recommending unsuitable securities, positioned much of his client’s retirement funds in high-risk equities just months before the technology bubble imploded. Despite calls from his clients, Mr. Russo did absolutely nothing to mitigate the devastating losses; rather he simply abandoned his clients to one of the worst bear markets in history…

On behalf of his clients, Evans recovered $84,000 in compensatory damages, $33,600 in attorney’s fees, and $13,000 expert witness fees. Anthony Russo, despite his checkered history, and now this arbitration award, is the branch manager of the A.G. Edwards office in Oxnard, California. The FINRA case number is 05-05647 and the award may be found at http://www.finra.org.