by

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 #5 is entitled Frequency of Price Changes

Distributors sometimes believe that they would have a competitive advantage if their manufacturers are restricted to adjusting prices only once per year. This may serve the distributor well, but at the expense of the supplier. An arbitrary advantage of one party over the other party does not bode well for the partnership.

During periods of inflation or other rising costs, the manufacturer must have the opportunity to pass along increases in cost. The marketplace disallows aggressive price increases. Allowing a manufacturer to increase prices upon 30-day notice eliminates one opportunity for conflict and reinforces the principle of fairness in the partnership.

Continue reading

by

The San Franciso Bay Guardian reports:

An expert witness for the SF Weekly put a bunch of charts before the jury Friday, trying to undermine the Guardian’s predatory pricing case – but every one of the charts seemed to prove exactly what we’ve been trying to say.

The Guardian is suing the Weekly and its corporate parent, Village Voice Media, for predatory pricing. The claim is that the 16-paper chain poured millions into propping up the San Francisco paper, which for 12 years has lost money while it sold ads below the cost of producing them. That, we argue, was done to harm the locally owned competitor.

Continue reading

by

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 #4 is entitled Exclusive or Nonexclusive.

Distributor franchises may be either exclusive, where there will be no other distributor franchised in the territory; or nonexclusive, where the new distributor might be one of several distributors franchised in the territory. Distributors sometimes make an appeal for an exclusive territory, arguing that without an exclusive territory, the distributor has no incentive to allocate adequate resources toward development of sales for the manufacturer. Once a supplier agrees to an exclusive territory, it forfeits the opportunity, for a period, to franchise an additional distributor. Assignment of an exclusive distributor in a territory represents an unnecessary leap of faith on the part of the supplier. One alternative to assigning an exclusive territory is to draft the distribution agreement in such a way that the distributor is nonexclusive, but to franchise only one distributor. A verbal understanding would suggest that if a supplier’s objectives were met, no additional distributor would be added to the nonexclusive territory. Such an arrangement provides encouragement for the distributor to perform without restricting options of the manufacturer.

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

by

In Jury Psychology Can Undermine Plaintiffs’ Expert Witnesses authors Neil Goldberg, John Freedenberg, Joseph Mooney, and Joseph Hanna write that cross examination of plaintiff’s expert witness should be geared to thwart the emotional hijacking of jurors that plaintiffs endeavor to secure. This strategy includes hiring a jury consultant expert witness. In this excerpt they explain the role of jurors in analyzing the credibility of expert witnesses:

Even before the Enron scandal, a survey found “that a majority of jurors are predisposed to believe an individual’s version of events in any dispute with a corporation.” The Wall Street Journal, Nov. 13, 1991 at B5. After the litany of scandals that followed Enron, the problem was compounded. The Wall Street Journal verified what many trial lawyers have recognized; increasingly we are confronted with a “new class of jurors.”

The members of this class have been displaced by economic chaos – environmental disasters, and “down-sizing” – and they are now feeling insecure, vulnerable and bitter. They blame, among others, Corporate America for their plight. These individuals contribute sigificantly to the volatility of jury verdicts.

Continue reading

by

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 #3 is entitled Annual Termination and Semiautomatic Renewal.

Parties that are inexperienced with distributor agreements sometimes attempt to minimize the opportunity for termination. Calling for annual termination and semiautomatic renewal is a routine procedure among experienced players. In theses cases, there is a provision in the agreement calling for termination of the agreement at the end of the first full calendar year after the agreement is placed in effect, and each year thereafter. Terms and conditions allow either party to submit a Notice of Intention to Not Renew 30 days prior to the end of the calendar year.

When annual termination and semiautomatic renewal is written into the agreement, both parties have the opportunity to exit the agreement, without proving cause, once per year. The partnership is held together, using this methodology, by performance and not with a collection of words in the agreement. Experienced partners always prefer to have performance as the binding force in the partnership.

Continue reading

by

In Using Vocational Rehab Experts and Life-Care Planners to Prove General Damages, author Geoffrey S. Wells discusses the use of vocational rehabilitation and life-care planning experts. He begins by telling us that the use of a vocational rehabilitation expert and a life care planning expert witness is even more important today than it has been in the past.

The use of a vocational rehabilitation expert should be implemented anytime your clients have permanent injuries that either impair their ability to do their old jobs or impair their ability to do any job. One of the most importatnt aspects of a good vocational rehabilitation plan is assessing the loss of earning capacity. The loss of earning capacitiy is not just the loss of a particular job, but it is the inability to be able to earn what a person would have been capable of earning had he or she never been hurt. Many defense lawyers gloss over the lost earning capacity component of the vocational rehabiliation plan. I think it is very improtant that the jury understands through the testimony of your expert the whole issue of lost earning capapcity.

More to follow from The Advocate, November 2007.

by

The trial of Hans Reiser, a 44-year-old Oakland, Calif. computer programmer accused of killing his wife, has become “stranger than fiction.” Reiser’s prominence in developer circles as the founder of the ReiserFS file system software available for Linux, the fact that the body of his estranged wife has never been recovered, and national TV coverage, all add to the drama. Crime scene analysis expert witnesses have testified about biological and trace evidence found, suggesting Nina Reiser is dead, and also tying her husband to the death. Beverly Parr, a psychiatry expert witness who has known Reiser since he was a toddler, testified for the defense that he showed all the signs of having Asperger’s syndrome, which is marked by impaired social skills and a fixation on things. News.com reports that Hans Reiser’s defense portrays:

…his estranged wife Nina Reiser as an adulteress and a possible embezzler. Hans Reiser has long suggested that Nina Reiser might not be dead after all, but could be hiding in her native Russia after stealing money from her husband’s former company Namesys. The couple’s 8-year-old son and 6-year-old daughter now live with their maternal grandmother in St. Petersburg, Russia.

by

In Using Vocational Rehab Experts and Life-Care Planners to Prove General Damages, author Geoffrey S. Wells discusses the use of vocational rehabilitation and life-care planning experts. He begins by telling us that the use of a vocational rehabilitation expert and a life care planning expert witness is even more important today than it has been in the past.

This is due in part to the jury’s overall skepticisim on general damage awards. It is not uncommon today to hear a juror during jury selection say something to the effect that “I have no problem awarding damages that are actually provable, such as lost wages or medical costs in the past and the future, but I have a real problem with pain and suffering damages.” The plainfiff lawyer’s ability therefore to provide actual economic numbers for the jurors is more important today than it has ever been in the past.

More to follow from The Advocate, November 2007.

by

Transplant surgeon Dr. Hootan Roozrokh of San Francisco is charged with three felonies alleging he attempted to hasten the death of a potential organ donor, 25-year-old Ruben Navarro. In the San Luis Obispo trial, County prosecutor Karen Gray has yet to reveal the names of transplants – organ/donor expert witnesses she plans to call who are coming from out of town. Roozrokh’s attorney, M. Gerald Schwartzbach, threatened to ask for delays throughout the preliminary hearing because he says that without an expert witness list, he hasn’t been able to prepare the defense’s case. A delay would cause scheduling problems for Gray and Superior Court Judge Martin Tangeman, who both have other criminal and civil court proceedings on the calendar. San Luis Obispo.com also writes:

A visibly frustrated Tangeman said no one should assume anything about how the preliminary hearing will proceed. He told Gray that not knowing the witnesses’ names and tentative timeline for the prosecution case has become “horribly problematic.”

by

Oklahoma Attorney General Drew Edmondson told a federal judge in Tulsa that the poultry industry has “infested” waterways in northeastern Oklahoma with pollution that is a risk to the public’s health. The state is seeking an injunction from Federal Judge Gregory K. Frizzell barring the spread of poultry litter in the million-acres Illinois River watershed that stretches from northwest Arkansas through northeast Oklahoma.

According to NewOK.com, opening statements in the hearing were delayed as attorneys wrangled over three motions that involved the expected testimony of pollution expert witnesses and the state’s request to eliminate some data prepared by one of its witnesses. Edmondson outlined the state’s case and the list of expert witnesses it expects to call over the three days that Judge Frizzell has given it to make its case. Next will come the poultry industry defense.