As you are undoubtedly aware, Levitt Robinson Solicitors are representing franchisees in the action against Priceline, which will allege that in breach of relevant legislation, the franchise agreements contain provisions that: 

1. impose an impermissible level of control over franchisees;
2. require franchisees to pay unfair fees; and
3. provide a benefit to one or more of the Priceline companies, who have direct or indirect monetary or financial interests, in the pharmacies. 

A Court could rule these provisions to be void and unenforceable. Where franchisees have paid money to Priceline pursuant to void or unenforceable provisions, the payments could be considered to have been paid by reason of a mistake.  In such circumstances, it would be argued that Priceline has received at your expense and it would be unjust for Priceline to retain that money. [1]

 “The Class Action is aimed at improving the franchised business model, not at damaging the business, though we are seeking compensation for franchisees’ lost profits, in the form of damages.”

The class action’s will seek: 

1. repayment of funds paid by franchisees in compliance with the allegedly void and unenforceable control provisions;
2. compensation for alleged loss of opportunity (related to profit margins, and the new onerous purchasing requirements imposed by Priceline); and
3. a new, fair and legally compliant franchise agreement and a stronger relationship between franchisee and franchisor. 

For more information on the class action and how you can get involved, contact Class PR and visit our dedicated Imminent Priceline Class Action page. 

ANONYMITY

Only lead applicants are named in class action proceedings from the outset. 

In other class action in which Levitt Robinson has been involved, group members’ identities have not needed to be disclosed until the proceedings were progressed a long way (if then), close to the conclusion of court proceedings, at a pre-trial mediation or at a settlement conference, held after the trial had already take place – but before judgment was delivered.

CLASS ACTIONS USUALLY SEE AN IMPROVEMENT RATHER THAN A DETERIORATION IN THE FRANCHISOR’S CONDUCT TOWARDS FRANCHISEES.

Levitt Robinson’s experience in franchise disputes is that conditions tend to improve for franchisees while a class action is pending as franchisors try attempt to either:

1. discourage involvement in the class action; and/or 
2. induce franchisees to leave it.

DO NOT TO GIVE UP WHAT MAY BE VALUABLE CLAIMS WITHOUT OBTAINING INDEPENDENT LEGAL ADVICE.  

Class PR strongly advise you to seek independent legal advice on the terms of the funding agreement.

Please note that the legal claims, in the class action pleadings, 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 claim against Priceline, we strongly suggest that you speak to a solicitor at Levitt Robinson so that you can make a well-informed decision. 

We also invite you to seek clarification on any point from a solicitor at Levitt Robinson – either Fiona Trime or Stewart Levitt – (02) 9267 3133.

WILL MY INVOLVEMENT COMPROMISE MY COMMERCIAL RELATIONSHIP WITH API AND PRICELINE?

Under the National 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^[1].

This means that Priceline, in all its business dealings with franchisees, must act:

1. honestly not arbitrarily;
2. in a manner consistent with the purposes of the agreement; and
3. 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  related dispute between you and Priceline, at no out of pocket expense to you. These costs will only be recoverable by the funder from any settlement you receive from Priceline, including from a Costs Order in the Applicants’ favour. Otherwise, our service will be free to you.

ON WHAT BASIS IS THE FRANCHISEES’ LOSS CALCULATED?

The claims will be for restitutionary damages. Restitutionary damages may be calculated according to gains made by the defendant, rather than by the loss suffered by the plaintiff.  This could mean that a claim in restitution operates to restore to you what has been transferred from you to Priceline, on the basis that Priceline many have been unjustly enriched. If the action is successful, Priceline  should become obliged to account to all franchisees for money which it has wrongfully taken from franchisees.

WHAT HAPPENS IF THE LITIGATION IS UNSUCCESSFUL? 

For ordinary group members, there is no financial risk if the litigation is unsuccessful. The funding agreement requires the funder to indemnify the Lead Applicants in respect of any adverse costs against them.  Further, the Funder will pay into Court, when required, an amount for security for costs. If the litigation is unsuccessful, these funds will be used to pay any adverse costs order.

For more information on the class action and how you can get involved, contact Class PR and visit our dedicated Imminent Priceline Class Action page. 

DISCLAIMER: The funder has requested that Class PR and Mr Levitt amend future reference to the Class action pending commencement to bear the following endorsement “The Class action against Priceline has not yet been commenced although all documents necessary to launch the action have been prepared and duly settled by the Hon Ron Merkel, QC, former Justice of the Federal Court of Australia

Class PR is a public relations company owned by persons closely associated and related to the senior partner of Levitt Robinson Solicitors. Class PR operates separately and independently from Levitt Robinson and offers to accept instructions from law firms other than Levitt Robinson (subject to strict confidentiality safeguards) and to provide public relations and other services to commercial litigation funders other than the Galactic Litigation Funding Group.

[1] Examples of such fees include: ClubCard and Sister Club Fees; Distribution Fees; the difference between prices fixed by API (specifically in respect of Franchisees) and those prices available at competing suppliers; Start-up Fees; Franchise Fees; and Rebates paid to Priceline/API by manufacturers and suppliers.