EDITORIAL
I wonder just how many agents that signed Consolidated Asset Recoveries newest contract knew what the definition of “Most Favoured Nation” (MFN) was when they signed it? One agency about to sign it did and shared a copy with me. It’s not the only clause that’s a cause for alarm, there is also a right to an onsite records audit to assure it’s enforcement.
I AM NOT AN ATTORNEY! Nor am I in the position to or am I dispensing legal advice. But even as a layman, this doesn’t smell right. Read the definition of an MFN clause below.
According to Westlaw, “A contractual provision, also known as a “most-favored-customer clause,” “prudent buyer clause” or “non-discrimination clause,” in which the seller promises the buyer that it will not offer another buyer better terms before offering those terms or better terms to the first buyer. Because of antitrust concerns that this practice may be used in an anticompetitive manner, courts will examine these provisions closely using a rule of reason analysis. Courts will determine the enforceability of the MFN provision by balancing the pro-competitive benefits of the provision (such as cost savings for buyers that may be passed on to downstream buyers) against the anticompetitive harms (such as discouraging price cutting and potentially encouraging monopolies).”
To put this simply, if an agency has lenders or forwarders who they work for and only charge $275, they would then have to give up their contract rate of $300 for $275 to Consolidated Asset Recovery.
But back to the actual definition. Anticompetitive harms and monopolies? In the repossession industry, really? In the world where repossession fees have been stagnant since the 80’s, I’d like to see that hold up in court.
I just don’t see how that is applicable. If the concern is it’s pass through to the consumer as the affected party, then in reality, the consumer has by all rights, been unaffected for almost 40 YEARS!
For the record, here’s what’s in the contract copy I was provided:
Page 5, section 3, Item g. – Most-Favored Nation. CONTRACTOR warrants that all of the prices, benefits and terms provided by CONTRACTOR for the Services are at least as favorable as the prices, benefits and terms provided by CONTRACTOR to any other person or entity having a business model comparable to CONSOLIDATED and offering contractual requirements to CONTRACTOR that are similar to those offered by CONSOLIDATED (a “Comparable Vendor”) for similar services. Should CONTRACTOR enter into any subsequent agreement with a Comparable Vendor that provides pricing, benefits or terms that are more favorable than those contained in this Agreement, CONTRACTOR agrees to amend this Agreement to provide CONSOLIDATED the more favorable pricing, benefits or terms effective as of the date of such other agreement. CONTRACTOR shall notify CONSOLIDATED no later than fifteen (15) days after CONTRACTOR enters into any such other more favorable agreement.
Adding insult to injury, the contract also authorizes them to come into your office (with a 30 day notice) and audit your records to assure that you are in compliance with their other onerous and draconian clause.
Lot inspections, I get it. Background checks. I get it. In fact, I think they are fairly reasonable from a compliance standpoint, but to require you to allow them access to your records requiring no cause, other than their own suspicion or desire to do so, is pretty invasive if you ask me. Regardless, sometimes I can’t believe the terms you folks agree to. You’re killing yourselves and each other. But hey, I don’t run your business.
Page 8, section 7 – Audit Rights. Upon thirty (30) days’ notice to CONTRACTOR, CONSOLIDATED shall have the right to examine the records of CONTRACTOR to verify CONTRACTOR’s compliance with the terms of this Agreement. CONTRACTOR will make such records as are identified by CONSOLIDATED available during normal business hours at the facility where such records are maintained.
No cause, no conditions, just an open ended authority granted for $300 contingent per unit recovered. Why would anyone sign this?
Last November, I published an Editorial titled “Forwarder Threatens Agencies with Punishment over Reporting Breaches.” This discussed Consolidated’s contract clause allowing them to withhold fees for service level agreements (SLA) breaches in repossession reporting, and I thought that was bad. Apparently they felt they weren’t being punitive enough and needed this clause.
Now, I’m speaking my mind and my own humble opinion. I AM NOT AN ATTORNEY! Nor am I in the position to or am I dispensing legal advice.
This is a new one in this industry. I haven’t heard of any other forwarder or lender doing this before and I checked with one forwarder that told me he’d never seen one in this industry either. This seems like the opposite of price fixing. It looks like price compression on an already compressed market.
Now, I am pretty sure that Consolidated will be calling me after this posts. So please gentlemen, answer me this one question if or when you do call. “If you manage to get a rate increase out of any of your lenders, will you be passing any of that along to the agents who signed this contract and will you allow them to audit you to make sure of that?”
I know it may seem like I pick on forwarders and subprime lenders a lot, but honestly, none of this is their faults. The fault lies in the hands of every agency owner, past and present, who signs contracts like this and makes continuous concessions to their own incomes trying to maintain a client or who think they can make it up in volume. These are the exceptions conceded to that erode on everyone’s survival and threaten the sustainability of an already fractured industry.
We teach others how to treat us and agency owners, who sign contracts like this, teach others to treat you all poorly.
Kevin Armstrong
Editor
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