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Quixtar
wants to now bind Motivational |
| In what appears to be a knee jerk reaction to Quixtar's/Alticor's stinging
loss in the 8th Circuit Court of Appeals, Quixtar is now trying to put the horses back
in the coral with their "Vendor Arbitration Agreement". The Arbitrations are also private forums so that competitors and the public do not have access to information and testimony that the parties may not wish to have made public. They also avoid the emotionalism often evident in a trial by jury since "professionals" such as judges and attorneys are normally the arbitrators rather than typical citizens who may have seen too many movies about trials to behave in an entirely objective manner. The disadvantages of arbitration are significant, however. Arbitrators are given tremendous latitude in their procedures and judgements and absent outrageous conduct or judgements on their part, the Courts will not review their actions. While in civil courts the judges are held to strict application of the law and the complex procedures and rules of evidence, the courts have consistently held that such strict compliance is NOT required of arbitrators who may use any and all equitable procedures or common sense and fairness to determine how to hear a matter. This gives the typical arbitrator far more power than the average judge. The various arbitration associations do have rules which are to be adhered to and most arbitrators are lawyers or judges and instinctively apply, albeit in more informal ways, the standard rules of procedure and evidence. Nevertheless, assuming an arbitrator is incompetent or unfair, there is little that can be done about it unless the arbitrators' conduct is completely unreasonable. Indeed, the Courts have even held that an error of law by the arbitrator will NOT result in the court overturning the arbitrator's decision. Unless the BSM company is run by a total moron, the BSM company would never want to voluntarily sign such an agreement with Quixtar, especially in light of Quixtar's winning streak with the for-profit Arbitration company JAMS Endispute. Based upon past experience you will not only have a high probability of losing against Quixtar, but you will also have the distinct pleasure paying Quixtar's or the winning distributor's legal bills when JAMS awards sanctions. More importantly for Quixtar's and JAMS's reputations, the built in confidentiality agreement also helps ensure that if you do get screwed in a dispute with Quixtar or a powerful king pin distributor, that you aren't allowed to talk about it either. If a BSM company does not sign the agreement voluntarily, I don't see how Quixtar could force any BSM company to sign it. the A BSM company is not bound by the Quixtar rules in the first place, and therefore the BSM company cannot be bound by the new rule 7.3.5. Maybe Quixtar hopes to trick the more naive BSM companies into signing a vendor arbitration agreement. I wonder if Quixtar requires their partner stores to sign an arbitration agreement? I seriously doubt it..... The requirement to arbitrate disputes between Quixtar and the BSM company is a bit suspect to start with. I do not see a business relationship in the first place to require such a process. In theory, the BSM company and Quixtar never do business with each other. Quixtar services Quixtar distributors and the BSM businesses services Quixtar distributors. However, the BSM businesses don't buy products from or sell products to Quixtar. Since there are no official business transactions, expcept for when Access Business groups sends out tools for LOA's, it is questionable why then a Arbitration Agreement is required between parties with no business relationship! It would be very interesting to know how many of the IBOA board member king pins who "recommended adoption" of this rule have actually executed such an agreement with Quixtar. I bet none of them have signed one. Suppose for the moment that the JAMS Endispute process was not fair and impartial. What would happen if an IBOA King pin who did not sign the vendor arbitration agreement, wanted to go after a smaller BSM operator who did sign the agreement? In theory the king pin could force arbitration on the smaller BSM operator and used the closed and secret process to have his way with the person. The Gooch v. Anderson case is a text book example of this happening. It is my opinion that more questionable disputes are brought to secret arbitration, precisely because it is supposed to be "secret"; people who get screwed there are not supposed to talk about how badly they got screwed. Just look at the Quixtar v. Scheibeler arbitration. It is my opinion that Quixtar would have never filed such a frivolous and fact-lacking complaint in a real court. As always James, these are just my opinions..... Scott
Quixtar made the Rules Change announcement on August 29, 2006
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