![]() The royalties and shall be calculated on the “Net Sales”, which is the total revenue as shown on the “Sales by Item Summary-Complete Summary”, excluding sales tax and insurance as explained above, less discounts, credit memos or adjustments and bad debt expense, and monies received as part of the cross country move program, which are distributed separately on a monthly basis and not included in this summary.Īccording to the plaintiffs, “monies received as part of the cross country move program” were specifically excluded from Net Sales. The franchise agreements’ definition of Net Sales is a mess: Under the franchise agreements, the plaintiffs were required to pay PODS a monthly royalty fee equal to a percentage of the franchisee’s “Net Sales.” PODS is a franchisor of storage and moving businesses. The case involves a dispute over franchise agreements that the three plaintiffs entered into with defendant PODS. ![]() District Court for the Northern District of Georgia in Coyote Portable Storage, LLC v. This all came to mind when via reader I learned of this post on Roetzel & Andress’s Franchise Follow-Up blog. (For more on that, see this June 2009 post on the AdamsDrafting blog.) But a court is very unlikely to allow expert testimony on other kinds of ambiguity, given that they’re easier to grasp, so there’s little point in my offering such testimony. (Arbitrations and other noncourt proceedings are a different matter.) I’m nevertheless willing to offer expert testimony on syntactic ambiguity and ambiguity of the part versus the whole-courts routinely flub that kind of analysis, so it makes no sense to prohibit expert testimony on the subject, and I think that I could get a court to agree with me. Why make this distinction? Caselaw supports the proposition that no expert testimony is admissible for purposes of determining whether contract language is ambiguous. Instead, assuming that my analysis would be helpful, I’ll offer to act as a consultant, leaving counsel to present the arguments. If I’m asked to submit expert testimony to a court on any other topic, I’ll likely decline. MSCD chapter 10 covers this kind of ambiguity. It includes uncertainty over the meaning of and and or.
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