WHAT IS THE ACTION ABOUT?
A GROUP OF DISSATISFIED CURRENT AND FORMER PRICELINE FRANCHISEES ARE AT THE POINT OF FILING A CLASS ACTION LAWSUIT.
The franchise agreements between you and Priceline contain provisions that may breach the current legislative framework which governs pharmacies in NSW, QLD and VIC.
The following requirements are examples of Priceline's control:
Stock the Merchandise Range, which is determined by Priceline;
Place orders through the Auto-Replenishment system;
Only order through API;
Comply with Priceline’s Visual Merchandising systems to ensure compliance with
the Brand Alignment Reward Scheme; and
Price items as determined by Priceline.
JENNY LEMON, PHARMACIST OF 47 YEARS ON WHY SHE IS "SHOCKED TO FIND HERSELF IN THIS POSITION AT THIS STAGE OF HER LIFE."
STEWART LEVITT'S MESSAGE TO PRICELINE FRANCHISEES - "DON'T PUT BLIND LOYALTY TO PRICELINE BEFORE YOUR OWN INTERESTS."
IMPORTANT NOTICE TO ALL CURRENT AND FORMER PRICELINE FRANCHISEES
THE IMMINENT CLASS ACTION AGAINST PRICELINE IS NOT AIMED AT DEVALUING OR DAMAGING THE PRICELINE BRAND OR YOUR INVESTMENT IN IT.
THE ACTION'S OBJECTIVE IS TO:
ADD VALUE TO THE INVESTMENT MADE BY CURRENT FRANCHISEES - to obtain a new, fair and compliant franchise agreement; to compensate franchisees for any infringing conduct, including loss of profits.
DO NOT TO GIVE UP WHAT MAY BE VALUABLE CLAIMS WITHOUT OBTAINING INDEPENDENT LEGAL ADVICE.
You are strongly advised to seek independent legal advice on the terms of the funding agreement.
Priceline’s conditional offer of $1000 towards legal fees, which would require you to communicate your interest in the matter to your Priceline Regional Manager to access it, appears inadequate for the purpose of obtaining informed, independent advice by a lawyer knowledgeable about the claims being made against Priceline in the intended proceedings.
Please note that the legal claims, the subject of the class action, are quite complex and require an understanding of the regulatory framework under which pharmacies operate. If you would like a better understanding of the alleged claims against Priceline, we strongly suggest that you speak to a solicitor at Levitt Robinson so that you can make a well-informed decision.
Class PR will arrange for you or your lawyer, to seek clarification on any point from Levitt Robinson Solicitors.
WHO ARE THE FRANCHISEES' LAWYERS?
Sydney-based firm Levitt Robinson have run seven (7) class actions from start to finish. All seven have been successful, with five substantial settlements and two succeeding in Court, after trial.
Levitt Robinson has a track record of taking on some of the hardest cases against the most powerful defendants and delivering justice for their clients in an efficient and cost-effective way.
THE ACTION WILL BE A FULLY FUNDED, OPT-IN CLASS ACTION
OPTING-IN DOES NOT REQUIRE YOU TO MAKE ANY OUT OF POCKET CONTRIBUTION TO THE PROCEEDINGS
The representative proceedings will be a fully funded, Opt-In class action. As the Class Action is being externally funded by a litigation funder, you WILL NOT be required to outlay any of your own funds towards the legal fees and other expenses of the Class Action. In the event the Class Action is unsuccessful, you will not be responsible for any adverse costs orders and will not have any out-of-pocket expenses.
In the event that the Class Action is successful (or settles on terms favourable to you), all legal fees and expenses will be deducted from the award of damages before distribution to group members, after the Funder’s 30% take. You will then benefit from the other 70% net share of damages from the settlement sum, to which you will then be entitled pro rata to the size of your individual claim.
YOU MUST OPT IN TO PARTICIPATE
Only individuals who sign a funding agreement will benefit from a positive outcome. Again, you do not have to pay to participate and you have no financial exposure, even if the matter is unsuccessful. Your only contribution will come out of your ‘winnings’.
COMPENSATION IS DISTRIBUTED ONLY AMONGST THOSE WHO OPT-IN BY SIGNING A FUNDING AGREEMENT.
If the controlling provisions are found to be unlawful, the amounts you paid to Priceline in compliance with them may be refunded to you.
You may also be able to recover damages for the loss of the following opportunities:
To acquire stock from API’s competitor at a better price; and/or
To obtain rebates from alternative suppliers.
The franchisees' claim is for restitutionary damages. Restitutionary damages may be calculated according to the gain made by the defendant, rather than by the loss suffered by the plaintiff.
This means a claim in restitution operates to restore to you what has been transferred from you to Priceline whereby Priceline has been unjustly enriched. If successful, Priceline comes under an obligation to account to all franchisees for money which it has received for the use of franchisees.
OTHER FACTORS TO NOTE
ONLY LEAD APPLICANTS ARE NAMED IN THE PROCEEDINGS FROM THE OUTSET.
While the Lead Applicants are named in the proceedings from the outset, you only have to identify yourself when the time comes to assess your individual compensation. This usually happens at around the time of a mediation or before there is a distribution, settlement or verdict in favour of Group Members (those of you who Opt-In to the Class Action).
In all the actions in which Levitt Robinson has been involved, group members' identities were not disclosed until the proceedings were very advanced - at a pre-trial mediation or at a settlement held after the proceedings had taken place, but before the judgment was delivered.
Identification is for the purposes of calculating the quantum of damages payable to you in the event of a positive outcome.
CLASS ACTIONS USUALLY SEE AN IMPROVEMENT RATHER THAN A DETERIORATION IN THE FRANCHISOR'S CONDUCT TOWARDS THE FRANCHISEE.
In Levitt Robinson's experience, conditions tend to improve for franchisees pending franchising disputes as the franchisors attempt to:
discourage involvement in the class action; OR
induce franchisees to leave it.
YOUR COMMERCIAL RELATIONSHIP WITH PRICELINE AND/OR API SHOULD CONTINUE, UNDISRUPTED.
Under the Franchising Code of Conduct, parties who enter, or propose to enter, into a franchise agreement must act in good faith towards one another. This obligation extends to all aspects of the franchising relationship (from pre-contractual negotiations to termination). This good faith obligation has also been reinforced by a string of court authorities.
This means that Priceline, in all its business dealings with franchisees, must act:
Honestly and not arbitrarily;
In a manner consistent with the purposes of the agreement; and
In a manner that affords franchisees all benefits owing to them under the contract.
Additionally, by signing the Funding Agreement, you will become entitled to the benefit of legal advice and representation, in any dispute between you and Priceline, which may arise after you join the class action, at no out of pocket expense to you. These costs will only be recoverable by the funder from any settlement you receive from Priceline. Otherwise, our service will be free to you.
(SEE: Burger King Corporation v Hungry Jack’s Pty Ltd (2001) NSWLR 558, Hungry Jack's argued that the agreement included an implied term of good faith (that is, that the parties must act in good faith when exercising their rights under the contract), and that Burger King had breached this term by denying the financial and operating approval to new restaurants, leading to Hungry Jack's failing to meet the minimum stores requirement. As a result of this breach of good faith, it argued, Burger King could not successfully terminate the contract. A duty of good faith is now an express requirement under the Franchising Code.)