Until recently, cases of back solicitation brought by a broker against a carrier have never made it to trial. Settlement is reached before the case comes before a judge. Such cases are fact- and document-intensive and usually result in the kind of finger-pointing rhetoric that makes the truth illusive. They are complicated and expensive to try.

    To enforce his contract in court, a broker would have to prove to a jury that (a) a legal duty has been breached and (b) the amount of legal damages, in dollars, sustained within the formal boundaries of the law. To earn punitive damages, the broker would need to prove that the conduct complained of was overt and intentional.

    In a recent Federal Court action in New Jersey, judgment was entered in favor of a broker in a jury trial. While not yet published, the case sets a precedent that can be cited by other brokers in similar situations.

    The jury found that a shipper tortuously interfered with a broker's carrier relationship, in the case of J. A. Tucker Company v. M. A. Bruder & Sons, Inc., d/b/a MAB Paints and Guy J. Transportation Company, Civil Action No. 97-CV-5289(SMC), . The case was tried in U. S. District Court, for the District of New Jersey, Camden Vicinage, before Honorable Stephen M. Orlofsky. The jury's decision was handed down on October 4, 2000 and became final 30 days later, when the time for appeal elapsed.

    MAB Paint is a regional paint company based in Philadelphia with a large presence in Florida and the Midwest. Tucker Company is a 40 year old brokerage and 3PL in Cherry Hill, New Jersey. Its president, William Tucker, is a second-generation transportation executive whose opinions and views have been widely published in the trucking community.

    Tucker described the suit as "a classic back solicitation situation" and stated that he believed this is the first one in history that such a suit went through to a trial and judgment against either a shipper or the carrier.

    The three-sided relationship of the broker with the shipper and carrier can make this type of suit clumsy. The jury has no feel for freight, let alone brokerage. So there is a huge learning curve.

    Tucker Co. originally brought suit against the carrier, according to Bill Tucker, "because we had a clear written contract and this was a big piece of business."

    He explained, "We had introduced the carrier to a beautiful backhaul from Florida up to Delaware. It was consistent volume of five to ten truckloads each week, twelve months a year. It blended beautifully with some chemical industry loads he had going southbound to Florida. It was an ideal backhaul."

    The carrier began hauling through the contract with Tucker Company for a few months. Suddenly Tucker saw the freight stop, only to begin moving through a Florida-based broker. Tucker protested but both the shipper and the carrier said the contract with Tucker did not address their action. The carrier continued to haul the freight under this new relationship for about nine months. The business stopped, about the time that Tucker brought suit.

    Tucker Company started their action by suing the carrier because they had a clear written contract with this party. Said Bill Tucker, "The carrier, in working us out of the picture, damaged not only our business relationship with him but, of course, with the customer."

    In the market place, brokers do not want to earn a reputation for suing their own clients. Tucker notes that in his experience, most shippers do not sign contracts that contain non-compete clauses. He adds, "They don't have to. They're the buyer. They're the people with the money to spend on freight. They get to do it their way."

    Tuckers estimates that only 5-10% of brokerage operations with shippers are covered by a non-compete clause. But written or not, Tucker claimed that such competition is clearly understood to be prohibited by the normal course of business dealings in the industry. He stated to the court that although it may not be explicit in a written contract with the shipper, it is clearly part of the "business arrangement."

    As the case progressed into the carrier's defense, Tucker realized that the shipper held significant responsibility for events that occurred. He brought the shipper into the case, so that the full story could be told. Perhaps for the first time, the unwritten understanding between the shipper and the broker would have to be proven in court.

    About six months before the trial date, the carrier went out of business, leaving only the shipper and Tucker Company to settle the matter.

    After three years of depositions, documents, disputes and settlement offers, the trial took place, late last year.

    There were six days of testimony after which the jury rendered their decision. In less than an hour, they decided in favor of Tucker Company.

    They implied that the carrier, although no longer included in the case, was guilty of back solicitation. Explicitly they said that the shipper was guilty of tortuous interference with the broker's contract with the carrier.

    No judgment was awarded for breach of the shipper-broker contract or for tortuous interference with the broker's business opportunity. A legal precedent, however, was established.

    Bill Tucker noted, "Back solicitation is a subtle business issue. Bringing a contract to trial is a long, expensive, process. Up until the very moment that that jury foreman speaks, it's a roll of the dice. Even then, it could possibly yield nothing, in terms of compensation. But at least brokers now have a case to cite."