Not sure what to do??

[brunob]

What is the name of your state? NJ
Im not sure how easy or complicated this question is, so I will try to keep to the details.
We own a family business that deals with a few brokers. One broker has said they are going out of business, we were told they were not opening their doors after the X-mas holiday. So with that said, we would like to go after their customer base , since we have provided the goods for these customers indirectly for years. We would like to approach their customers via phone, fax and mail, but we are not sure what we are allowed to say without opening ourselves to a lawsuit. Can we say...such and such business is out of business? Since they only told us so, we have no idea if they plan to reassemble and open back up.....partner with another company? Since the owner has told us, and others, this...is it just considered hear say?
thanks so much!!

 

[HomeGuru]

What is the name of your state? NJ
Im not sure how easy or complicated this question is, so I will try to keep to the details.
We own a family business that deals with a few brokers. One broker has said they are going out of business, we were told they were not opening their doors after the X-mas holiday. So with that said, we would like to go after their customer base , since we have provided the goods for these customers indirectly for years. We would like to approach their customers via phone, fax and mail, but we are not sure what we are allowed to say without opening ourselves to a lawsuit. Can we say...such and such business is out of business? Since they only told us so, we have no idea if they plan to reassemble and open back up.....partner with another company? Since the owner has told us, and others, this...is it just considered hear say?
thanks so much!!

**A: yes it is. Talk to the horse directly.

 

[brunob]

Homeguru...thanks for the reply....I guess here is the crux of the problem, we believe they are not being truthful with what their plans are. They have told us they are out of business as of the 1st of the year. We have had access to their customer base for 14 years, but out of loyalty and business ethic, we have not solicited any of thier customers. However, if they are out of business and their customers are free picking, we would like to go after them.....but not sure of the wording we are allowed to use without getting sued. So what if the "Horse" is not being honest and avoiding our phone calls?

 

[HomeGuru]

Homeguru...thanks for the reply....I guess here is the crux of the problem, we believe they are not being truthful with what their plans are. They have told us they are out of business as of the 1st of the year. We have had access to their customer base for 14 years, but out of loyalty and business ethic, we have not solicited any of thier customers. However, if they are out of business and their customers are free picking, we would like to go after them.....but not sure of the wording we are allowed to use without getting sued. So what if the "Horse" is not being honest and avoiding our phone calls?

**A: then chalk it up as horse sh*t.

 

[brunob]

So I guess based on your responses, you do not know what is allowed to be said via phone or in print as regards to the status of their business. Since this is via a forum I dont want to jump the gun, but it seems you are taking my posting as a joke. This is no joke to us, this is our livelyhood and we are going to lose business if we dont act quickly and retain some of the business that will surely go somewhere else. Is someone able to tell me what we can put in print while trying to solicite their ex customers?
thank you

 

[DStaub]

Generally, in the absence of an enforceable agreement restricting competition (such as a non-competition agreement or perhaps a brokerage agreement), customers of another business are fair game. There are other common law claims that an aggrieved party can raise, such as unfair competition or tortious interference with contract, but courts are generally reluctant to interfere with free and reasonable competition.

If in fact the only thing that was keeping you from soliciting the broker's customers was "loyalty" to the broker, then you should be free to contact his customers. Just be careful that there is not a stronger basis than "loyalty" lurking around the corner.

As to your approach to the customers, I would be very reluctant to say ANYTHING about the broker. If it turns out to be untrue, it may land you in court with a possible claim of commercial defamation. You may have a defense, but you may spend a lot of money in legal fees in the process.

If this is a reasonable economic opportunity for you, you should talk to your lawyer and get his advice based on your specific facts.

Finally, keep in mind that if you sell to other brokers and this broker is trying to reorganize his business or sell it, your other brokers may consider this a breach of loyalty to one of their brethren and wonder if you will do the same thing to them when they are in the same circumstances.

 

[brunob]

thank you so much for your response ....that was exactly the information I was looking for! BTW we do not have any non compete contract with any of our brokers....our industry is mostly based on trust. But when a broker or shop goes out of business it is expected that all of their customers are fair game!....thanks again!