I help people from all over the place who are fighting the Bartercard Beast. Here is a reply to one lady who was fighting unwelcome aggression from the Green Beast. She had a clear dispute. The BB responded with threats and took the matter quite heavy. Enjoy my guidance and help for this pour soul.
Your dispute with Bartercard relates to multiple instances of misconduct on their part (according to you) which I have assessed and consider to each be credible and to be largely actionable in a legal sense, and certainly when they are combined they create the obvious picture that you have a legitimate dispute. That there may be two sides, sure, but this will require adjudication to settle in the absence of agreement with the Bartercard Beast. More on this shortly.
Additionally to circumstances specific to your situation you are in the same position as all other disenfranchised Bartercard Members or ex-Members in that the company’s claims that the Bartercard Trade Dollar equals the local currency (in your case the AUD) is clearly fraudulent. They also have a legal responsibility to protect that claim and their conduct has done the exact opposite as anyone who has followed my blogging will know!
Basically if you claim something and then legislate it in an agreement (such as that your currency MUST equal the current cash currency) and it doesn’t then you must devalue your currency or face claims/charges of fraud.
Your agreement to their Rules on first signing requires that you accept their declaration by fiat that their Bartercard Trade Dollar equates to one (in your case) AUD. This appears on the surface to be an enforceable position on the part of Bartercard however it can IMHO become an onerous or unenforceable agreement when the Fair Market Value of a Bartercard Trade Dollar is universally accepted as less than on par. Whether such an agreement can be enforced has never (to my knowledge) been fully proven one way or the other in court – yet.
It has in one case come before a judge who has said that he would have ruled on FMV being the reasonable valuation to use in a dispute but he never ruled for technical reasons. Obviously the Big Green Beast is unlikely to inform me if there were any others!
I have blogged about this specifically in regards to a Wellington case where a substantial claim by the Beast against an ex-Bartercard Member was withdrawn and settled out of court. This sadly denied me the exposure of a successful challenge to the legality of an onerous agreement, especially when the difference between the Trade Dollar at FMV and the local currency was viewed as a “penalty” – a legal term that is (in the Westminster jurisdictions) totally unenforceable.
Bugger eh? Still there’s always another day and another Bartercard victim!
When Bartercard claims, as they do in your case, that you owe them cash to the full value of your negative trade balance you may legitimately put before the court that you would be liable for only FMV, even if you did agree that the money was owing, which I know that you don’t.
We’ve talked about my attendance and assistance in your case and I confirm my willingness and availability to assist you in person or remotely as an expert witness, or what we call here in NZ a McKenzie Friend that can assist you through the court hearings. As long as my expenses are paid for as they are incurred, I would travel to the moon to see a case based on this subject fought out in court to a judgment. It would clarify the situation for all Bartercard members and ex-members through creating a legal precedent.
This lady may or may not push through to a hearing; she may settle, who knows but I’m also open to assisting others with expert commentary and advice.
Sadly I suspect that like all other dealings with the Beast, he knows when to back out and bow out and will likely settle or go abandon their claims against you.
In regards to your course of action from here in, may I suggest that you prepare for a long and drawn out legal stoush with Bartercard and be prepared to sue them yourself for any overpayment based on your verifiable FMV of the Trade Dollar. In that regard I may be able to help you and my blogging can also give you clues. If you had people in your trading circles who can provide evidence that FMV of the Trade Dollar was say 30c cash then you can calculate backwards from that to what debt you owed them at the time of account closure was to determine the correct repayment.
This case involved some payments that were made above what she calulated was rightfully due, but each case is different. The principle though is that trade deficits on closure are payable in trade (you can easily off gift vouchers if you want, after all that is all a Trade Dollar is, isn’t it? A promise to pay) then in cash after an agreed period. The question of valuation though is a key one and is quite legitimately contestable in court. Bartercard will not tell you that but ignore them and go to the judge with facts and your evidence. He won’t take the same approach as the BB, I can tell you!
In this FMV valuation exercise you will need to be realistic and to be prepared to produce evidence for use in court. It’s no good saying, “I believe that it is only worth xxx!” You will need to show the judge how you calculated the FMV (which will vary from place to place, from trader to trader and from time to time). Evidence produced in court will be assessed by the judge for its credibility and contested of course by your opponent.
This is a critical point that people tend to minimise. If you think you can stand up and argue justice and morality and fairness in court against an aggressive, litigious company like Bartercard without evidence – forget it. They know their stuff and have decades of developing systems to milk everyone, legally and otherwise. If you have evidence however, or lies, fraud, deception then the judge will listen to you FIRST and by default you will have an edge over all the scary legal stuff.
You will need to think the issues through from the other people’s perspectives before undertaking or inviting legal action as well as your own position. Is fighting the Beast worth the money? Maybe it isn’t. Is the exposure of your business and personal circumstances [and willingness to stand up for what you think is right] worth it? Maybe this is an opportunity, not a problem, for if it be known that you have the proverbial to take them on, even if you don’t win, then this is potential marketing material for you and perhaps a future source of goodwill, business and other opportunity. Personally I think that if I am on your team you cannot lose for I know these crooks and their ways like the back of my hand, but that is your call to make.
Fighting Bartercard is draining and frightening for most. They know it as do all larger businesses skilled in using the law. Flipping the scales and speaking to someone who has been there and done that can be hugely uplifting. I’ve never lost a case in courts for over 40 years of hitting back at crims, crooks & crazies, and Bartercard are draining but easy to beat – they’re so crooked, all you gotta do is tell your story the right way to the judge and the win is there for the taking!
Then you will need to look at things from the Beast’s perspective . . . they are a company driven by greed and an insatiable appetite for cash – real money. Understand that they use barter as a mechanism to secure real assets, particularly cash, at every turn. Ethics be damned. Human costs irrelevant. A court case of this nature with a ruling that goes against them would of their necessity and survival need to be appealed. Put simply, if word got out (and it surely would if I was involved) that any court in any jurisdiction had ruled that FMV was a legally accepted valuation of their currency (and note that it doesn’t matter whether this is 99c in the dollar or 1c in the dollar, it means ANY FMV valuation) then they are toast. Instantly all Bartercard Members could use the FMV valuation ruling for a myriad of purposes and their currency scam would be doomed. It would also have massive ripple effects throughout the world as this FMV is the industries second greatest fear, aside from regulation.
Again this is usually quite hard to do because emotions get in the way, and we get upset when we cross swords with people who do not play the game straight. Just focus on the job at hand, do the right thing and bring your evidence forward. If it’s right and true and fair, you’ll be fine!
The other thing is simply money. Understand that Bartercard will be assessing the fight in monetary terms, not with matters of justice or using the same ethics that you will. They will be asking themselves what they are likely to get from you financially and comparing that with what it will cost them to get that. Their legal fees are predominantly paid in funny money but I would estimate their costs to be assessed at $5,000.00 for a small claims case, and twenty times that or even much more for a sequence of claims/counterclaims and Appeal Court hearings lasting years if a ruling adverse to their interests was made.
My advice is to:
- Establish whether or not you want to take the Beast on, with a good analysis of the pros & cons in view of the possibility of professional gain for yourself and potential cash savings from a win, and the possibility that the Beast fights back;
- Establish what is important to you financially. You will need to assess the potential distraction from your core business, the potential of a refund of cash overpaid (or that you deem still payable);
- Provide this report/analysis to Bartercard with your intended actions and then
- Be prepared to negotiate on a settlement. In my experience Bartercard ALWAYS settles but usually only when they have to. This may be at an early stage if personalities are not involved and pragmatism rules with the person responsible for your case, but it can also be at a very late stage (even years), even at or during a trial if they think they have a chance of winning.
In regards to the last point understand that the costs awarded against them for proceeding with a case against you are usually negligible and are always factored into their decision-making.
This is not simply a Bartercard thing. Think about any larger company that is taking people to court on an ongoing basis. It’s not personal. It may be for you but it’s just their job after all. Same with the judge and the lawyers. When it comes to me, sure it’s highly personal because I am a threat and the crooks hate getting exposed all the time but that’s my choice. You don’t need to be like that in your case.
Next you will need to think about exposure and how you can either use this to your advantage or avoid it if that is your wish. I prefer to increase exposure and be like a child in a toy factory – push every button and pull any lever I can find until I understand what I am playing with and the gold falls from the tree (if it has any) but you may be different.
And again this is different for different people and situations. If you’re into marketing or sales and want to be out there seen as a winner – David vs Goliath sort of thing, go for it!! What could happen when you swat the big boy away with a good win? Do you know others who could do with your help? The sky is the limit and Bartercard are highly skilled at knocking the small guy around.
Lastly in terms of a settlement, understand the situation regarding monies already paid vs monies disputed and not paid. They say that possession is ninth tenths of the law. In your case the fact that you have [begrudgingly and under duress I know] paid the Beast something thus far will make it far harder to claw back that money than to defend and resist paying them any more. While you may be right morally and even legally sound, trying to get money out of Bartercard when they will be doing everything in their power to stop this, it will be 10x more difficult than retaining what is currently in your bank and preventing the Beast getting it from you. Understand that Bartercard’s decision-makers will be aware of this too and that it will be far easier to report back that they have “written off a debt as a bad one” rather than lost a court case and had to cough up the readies to you. Think human nature, professional politics, pride etc, etc.
This relates more to an overpayment situation but the principles remain true.
There was more that related to her specific case but this is the gold for all to enjoy!