Articles Posted in Expert Witness News

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.

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.

The Defense Department announced Monday that charges have been sworn against six detainees at Guantanamo, alleged to be responsible for the planning and execution of the attacks upon the United States of America which occurred on Sept. 11, 2001. Those attacks resulted in the death of nearly 3,000 people. The charges allege a long term, highly sophisticated, organized plan by al Qaeda to attack the United States. Under the Military Commissions Act the defendants are guaranteed the right to obtain evidence and to call witnesses on his own behalf including terrorism expert witnesses.

The accused are: Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi, and Mohamed al Kahtani. Each of the defendants is charged with conspiracy and the separate, substantive offenses of: murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism. The first four defendants, Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek Bin ‘Attash, Ramzi Binalshibh, and Ali Abdul Aziz Ali are also charged with the substantive offense of hijacking or hazarding a vessel.

In the military commissions process, every defendant has the following rights: The right to remain silent and to have no adverse inference drawn from it; the right to be represented by detailed military counsel, as well as civilian counsel of his own selection and at no expense to the government; the right to examine all evidence used against him by the prosecution; the right to obtain evidence and to call witnesses on his own behalf including expert witnesses; the right to cross-examine every witness called by the prosecution; the right to be present during the presentation of evidence; the right to have a military commission panel of at least five military members determine his guilt by a 2/3 majority, or in the case of a capital offense, a unanimous decision of a military commission composed of at least 12 members; and the right to an appeal to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the United States Supreme Court.

Patrick Ball was the first expert witness called in the case against the former Serbian president, who was representing himself against mass atrocity charges at the International Criminal Tribunal for Yugoslavia. The statistics expert witness spent 10 months crunching numbers about migration patterns in Kosovo. Ball’s findings suggested that hundreds of thousands of refugees who fled to Albania were spurred by the violence of Mr. Milosevic’s army. CSMonitor.com also writes:

When the analysis showed the movements were neither random nor likely to follow NATO or KLA activities, Ball wrote: “The migration patterns of Kosovar Albanians are consistent with the hypothesis that there was a coordinated and organized effort to drive them from their homes.” In layman’s terms, the data suggested ethnic cleansing. In fact, the migration patterns matched killing patterns “so unbelievably perfectly” that he concluded that the two situations might be explained by the same external influence.

Ball also wrote software that allowed a human rights commission to aggregate and analyze the human rights records of officers in the El Salvadoran Army. The results forced a quarter of the military leadership to retire. He has also worked on finding ways to uncover the scale and pattern of human rights violations in South Africa, Haiti, Guatemala, East Timor, and Peru.

Oracle says it may file an amended complaint alleging what its attorneys are calling “a broader program of copyright infringement” by SAP (Systems Applications and Products in Data Processing) beyond the allegations it has already made against SAPs subsidiary TomorrowNow. Oracle discovered some TomorrowNow employees were downloading Oracle customer files and claims SAP violated the Federal Computer Fraud and Abuse Act as well as the California Computer Data Access and Fraud Act. Both sides are limited to three software expert witnesses in the case. The internetnews.com also reports:

SAP acknowledged that some TomorrowNow employees were guilty of some “inappropriate” downloads but dismissed the vast majority of Oracle’s allegations. In November, SAP announced that TomorrowNow CEO Andrew Nelson and other senior executives had resigned and that it was considering a number of strategic options, including the possible sale of services subsidiary.

Ahead of next week’s case management hearing, Judge Jenkins gave both sides a limit of 20 depositions, 150 document requests, three expert witnesses to evaluate forensic evidence and determine potential damages and an August 8 deadline to submit its expert disclosure reports. He also said the last day he will hear pre-trial motions will be November 13.

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.

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.

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.

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.”

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.