Chapter 38 – Our History with Mxx

I forget precisely how we met M but I do recall he was working for a competitor. We hired a senior account manager from MBNA by the name of Paul Bower and set up a satellite office in Delaware for him. Paul was hired to act as President of one of my companies so I could step back and pursue other channels. I recall Paul recommended M and knew him as a member of the IT department of a competitor of ours and a vendor of MBNA. Paul met him through that relationship.

M rose from a call center agent at a New Jersey center to an assistant manager of the IT department. I was told that he was a great programmer, had created his own digital recording platform, which if true could save us quite a bit of money. So I met with M. He was happy with his current position but ultimately our offer resulted in a substantial raise and he became a manager with us, a step up. We made an offer. He accepted.

M is not well educated. He graduated from High School certainly. He did not have much of any college education, but seemed to have enough database, dialer and specific industry experience to meet our needs. He does not look like a person you can bring to a sales meeting. He ascribes to a different time and identifies with the long hair rock star persona. I really did not care, but recognized he would one day need to be replaced with someone of greater skill and presence.

But within a short time Paul Bower had something else in mind. He and M set up a competing company. Instead of focusing on the task they had been hired for, Paul and M were out looking for call center space. The company they set up was called Superior Results Marketing. I became aware of this when Paul and M approached two of our senior staff members to join them. One of them let me know.

So I went out to see them in Delaware and confronted them at our offices. To M’s credit he seemed torn on the activity going on behind the scenes there in Delaware. But he nonetheless did it. I took over Superior Results and Paul Bower was moved to another position and was allowed to work on a commission basis only. He quit in short order.

But M survived that. Now it goes without saying that at that point our relationship with M was numbered. We of course were not going to have a long term relationship with M any more, but provided that he did his job it would take us a little while to find and hire someone more capable and loyal.

Overtime we became somewhat complacent about M. We should not have. The relationship deteriorated into his designed approach to control the quality and quantity of the work his department would produce. Our goals to have each member of the department well trained were thwarted by him. He was not able to script and the other members apparently were not able to use the programs we had to generate reports or process leads. I had been told otherwise, but eventually when one member was out sick or otherwise unavailable our IT department did not function.

And that’s essentially what happened when M was terminated. Six months before his termination I went to see him, to evaluate his programming and to see if I could modify his behavior. It was during that IT session that the hard drive he used crashed. It looked fake but he claimed he could not bring it back up. Long trip to New Jersey for nothing. I knew I could not talk any sense into him after that.

Shortly thereafter we required M to come out to Portland to work with our team and he refused to do so. Several times after that he held up processing leads wanting a raise, claiming of course that he was working a lot of hours. Training staff would have lightened that work schedule if it was truely onerous. And so once we felt that our current staff could process and generate reports we fired M. I don’t know how anyone thinks you can reject your employer’s demand to come to headquarters and keep your job. Ultimately M believed he could control his future by controlling our data.

So we fired M and I flew out to get the equipment. Since the latest files we needed for processing had not been sent to us as requested, I wanted to secure the equipment and grab the files. We hired and outside database programmer to evaluate the program files and to set up a processing procedure with the appropriate program files. As expected our IT staff members were not able to process data and we were forced to shutdown for a week.

After M breached his contract with us and after he was terminated, M filed a complaint with the Oregon DOJ (through an attorney in Albany), claiming we were over-billing clients and violating the Do Not Call list (not the jurisdiction of the ODJ). We were not calling anyone on our own behalf. Our clients gave us weekly DNC lists to use to remove current numbers being called and to make sure they were not called in the future. It was M’s job to process those DNC files so if there was a failure, and I doubt there was, it was because he failed or refused to process the DNC files.

By the way, M did not talk to the Albany attorney who filed the complaint on his behalf. That attorney ultimately testified that he talked only to Sandra Ware and she represented herself as his attorney in New Jersey. In any event, as we have discussed before the ODJ requested documentation that supported his allegations and none were provided. The complaint file was open only for a day or so. M then sought whistle blower type protection to save his job. But he had already been fired well before the complaint. None of his allegations were true. But let me address the over-billing.

Eventually M provided an excel spreadsheet he claimed was received via email. There was no proof of that. What the spreadsheet did however showed time being written off and in a few cases recovered, but still overall being written off. I am a proponent of writing off time when our equipment works poorly, there is a telecom issue, agents are inadequately trained, and other issues. I’m not going to permit writing up time. On occasion we would find one of our manager writing time off and they would be written up for doing so. I would be open to recovering time if clients were aware and endorsed it. Writing time off was not knew.

Suggesting that writing time off is criminal or inappropriate is beyond unreasonable. In the beginning the representation to the ODJ was that we were engaged in criminal activity. During the trial M downgraded that to inappropriate because it gave us a market advantage. A different company, presumably like the one he and Paul Bower set up, could not as easily compete. Hard to imagine that an arbitrator would not find this wholly ridiculous. Crow did leave the arbitration shaking his head.
Now the one thing we have not discussed is that M felt our agreement with him precluded him seeking other employment in the industry. Not the case. What it does is preclude him from soliciting our clients or aiding in that process with a new employer or partner. We even wrote him and told him he certainly could work in the industry.

M made a claim for more than $1 million in damage. And he hired an attorney in New Jersey to set the contract we had with M aside or at the very least set aside the arbitration provision in Oregon. We probably would have been better off doing that, but the agreement provided for arbitration in Portland Oregon and we wanted that contract requirement section respected.

The conclusion you could reach about M is that he did not want to be bound by any contract. He certainly did not want to be bound by the confidentiality section of our contract with him & that may have applied to how he protected confidential data.

Back when M filed the DNC & over-billing complaint we processed about 1 million records a month. His complaint was that once we failed to process approximately 300 records timely & he was the one responsible for processing the dnc records. Our average monthly per client billing was $50,000. The spreadsheet he provided showed a write-off of a few hundred dollars. And he did all of this to try to preserve a job with a company that he disliked and was trying to hurt.

Is common sense just not an element in an arbitration. You can imagine that we, that I, have been stunned by even having to defend claims this stupid. Quite frankly I don’t know why something this stupid survives and when it does it points a finger to the litigation process failing or other unavoidable conclusions. And those conclusions lead to cronyism, or corruption, or bias or something else. At the end of the day, you measure stupidity against a more plausible answer.

Were M’s allegations and damage claims ludicrous? They were.

Should even a mediocre arbitrator have seen this? No doubt.

Is Bill Crow better than mediocre? Most certainly.

And therefore there were separate motivations and goals for this arbitration, things that M could not influence. He did not make as much from the arbitration as his last attorney Linda Marshall did. She gets most of the reward, more than 50%. Lets go through M’s testimony next.

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