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CONSULTANTS SARL of € 100 000 registered LYON RCS under number 444 632 459 whose registered office is 42, Mill Road Carron - 69130, in the person of its leaders resident in the legal quality said seat, Appellant PCS & Junillon WICKY, solicitors Ratheau firm, Lawyer (Mr Bernard UGHETTO) TOQUE N ° 666 Mr. Mark HESLEHURST, born July 31, 1960 in MIDDLESBROUGH (LARGE BRITAIN) The remaining Sorbiers - 69210 SAVIGNY Appellant PCS & Junillon WICKY, solicitors Ratheau firm, Lawyer (Mr Bernard UGHETTO) TOQUE N ° 666 NAYS: The Company BIOMERIEUX, with capital of € 11,879,045 registered with the RCS Lyon under the number B 673 620 399 whose registered office is Path of Horme 69280 MARCY L'ETOILE, represented by its leaders resident in the statutory audit quality seat Respondent Lamy & Associés SCP RIBEYRE (Maître Philippe Genin) - Toque 656
PLEASE THE COURT I / FACTS AND PROCEDURE: Mr. Mark HESLEHURST carrying on business in a foreign language teacher and started his business in his personal name under the trade name "FRANÇAIS CONSULTANTS. Wishing that his staff to undergo language training, the Company Biomerieux, specializing in research and development on natural sciences and Natural, addressed to Mr. Mark HESLEHURST. Mr. Mark has established HESLEHURST dated September 7, 1999 for a quote detailing the content of the curriculum and setting an hourly rate equivalent to that charged by the Profession, or 320 francs per H.T hours. (Exhibit No. 1). BIOMERIEUX but negotiated down the price by promising, as consideration, to Mr. Mark HESLEHURST exclusive training conducted within the society, as evidenced November 24, 2004 Mr. Blair SHEPARD. (Exhibit No. 103). The occupation of Mr Mark HESLEHURST is nascent, it has reduced his hourly rate at 270 francs HT and established a second quotation dated September 14, 1999. (Exhibit No. 20). BIOMERIEUX finally asked in February 2000 Mr Mark HESLEHURST for English language training. She however re-negotiated down and well below the market price, the price schedule originally announced by Mr. Mark HESLEHURST. Mr. Mark HESLEHURST has indeed seen its services billed at an hourly rate of Frs 180.00 Without tax from January 2000. (Exhibit No. 3). He has, during the second half of 2000, performed the same type of services by the hour always imposed by BIOMERIEUX and, notwithstanding his promise to increase. A fixed term contract for the provision of service was signed December 14, 2000 between BIOMERIEUX and Mr. Mark HESLEHURST under which he was given "Instructional design on language services for the account of the BIOMERIEUX SA. Mr. Mark HESLEHURST had thus support the following services:
Audit training Assessment as part of a recruitment or a professional assessment Feedback in response to training, Implementation of learning solutions such as face to face, group of English general group of business English, intensive day, living Intensive English abroad conferences, debates, films, government and logistics: implementation and change various groups and classes of information and various changes and transmission reporting service training Biomerieux SA. The prices of various services was set out in Article 3 of the contract. The contract was for a term of 14 December 2000 to September 30 2001, automatically renewable for a period of twelve months unless terminated done by registered letter with acknowledgment of receipt by either party with notice two months. (Exhibit No. 4). Five and a half months after signing the above contract, the Company has BIOMERIEUX suddenly following letter with acknowledgment of May 31, 2001, terminated the contract cited in the following terms: "We hereby inform you of our intention not to renew Convention want to consider that as of end December 2001 the two companies will no longer bound by this contract. " (Item No. 6) BIOMERIEUX did not hesitate to depart from the contractual terms of termination of fixed-term contract. The termination of the contract should have been in effect Effective September 30, 2001, under penalty of renewal for a further period of twelve months from that date. Mr. Mark HESLEHURST reacted immediately. A meeting was held between the parties July 10, 2001. Following letter dated July 16, 2001, Mr. Mark HESLEHURST confirmed to the company BIOMERIEUX terms of maintenance as follows: "... During our meeting on July 10 to 14 hours, you have stipulated that the letter was a error and that the intentions were to continue BIOMERIEUX partnership with FRANÇAIS CONSULTANTS. This contract ended in late September 2001. To date, your company represents about 70% of my turnover. The loss of BIOMERIEUX be disastrous, even fatal to my business.
I also have 6 consultants working at BIOMERIEUX who need to know if will work in October. ... " (See Exhibit 7). BIOMERIEUX made no reply to that letter. It is within this context that five new contracts were signed between the parties on January 24 2002 on: - English Training Group for an hourly rate of 33.54 € HT totaling estimate of 144 € 892.80 VAT of 54 x 80 hours x € 33.54 for the period from February 4, 2002 December 31, 2002 - Training English telephone tariff of 33.54 € HT hour, a total estimate of 45 representing 68 HT € 614.4 x 20 x hours of training for € 33.54 period from February 4, 2002 December 31, 2002 - Training English for the overall costumer service fee of 33.54 € HT Time or an estimated amount of 8 € 302.92 HT, such training should take place Weeks 12, 13, 17, 26, 36 and 39 9:00 to 4:30 p.m., - Training Spanish group and individual lessons and costs of 41.16 € HT time is an estimated total amount of 7 079,52 € + VAT for the period from February 4, 2002 31 December 2002 - Intensive English training costs of 33.54 € HT per hour and € 15.24 plus VAT per person trained in addition to the individual consultant, an estimated total amount of € 10 275 before tax for the period from 1st half of 2002. (See Exhibit No. 5, 8, 9, 10 and 11) Two other contracts were subsequently signed: - May 30, 2002 for a course "Intensive English" at a price of 33.54 € giving a total estimate of 4 024,80 € HT for the second half of 2002. (See Exhibit 13) - July 8, 2002 for a course, "Introduction en FRANCAIS" rate VAT € 33.54 for a total estimate of 2 € 884.44 + VAT for the period from August to October 2002. (See Exhibit No. 14)
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5/ Relationship difficulties are quickly born between Mrs. Florence GIRARD, in charge the training department of the Company and Mr. Mark BIOMERIEUX HESLEHURST. Mr. Mark HESLEHURST has actually been imposed unilateral decisions by this particular person on the setting of tariffs, the general organization of Activity professional trainers, modification of substantive obligations contained in contracts, reducing bills etc ... under the threat of breaking any relationship contract. Thus, in early 2002, the Company has imposed BIOMERIEUX Mr. Mark HESLEHURST to assume all the logistics of the program language training, unrequited financial, and by transferring a substantial additional workload, until executed by Mrs. Florence and Mrs. Nadine GIRARD BERNIER Society Biomerieux. To achieve these ends, Mrs. Florence GIRARD did not hesitate in addition to many occasions and with particular insistence, making indecent proposals and displaced Mark HESLEHURST. (See Exhibit 15 to 34) After more than two years of discriminatory and abusive practices, and financial pressure and moral imposed on Mr. Mark HESLEHURST, officers of the Company BIOMERIEUX BioMérieux Pierre Fabre, informed of this situation internally, carried in April 2002 to abrupt dismissal of Ms. Girard. (See Exhibit No. 128) At that time, given these difficulties, numerous meetings were held between HESLEHURST Mr Mark and Mr Jean-Claude RIVARD Resources Director Human (Biomerieux). On the occasion of one of these meetings, Mr. Jean-Claude RIVARD informed Mr. Mark HESLEHURST that Mr. Christian NOIZET, Director of Resources Human Society BIOMERIEUX worked with "criminals" and that it was possible his office and his home are visited for finding documents and evidence for use in the proceedings of dismissal of Mrs. Florence GIRARD.
The latter explained to Mr Mark HESLEHURST the husband and friends of Mrs. GIRARD were furious against him and he could expect to be attacked. (See Exhibit No. 127) These statements were greatly concerned that Mr. Mark HESLEHURST expressed his wife and his partner, David Holmes. (See Exhibit No. 126) Moreover, his motor vehicle was damaged twelve times. Mr. Mark HESLEHURST was physically assaulted in May 2002 and again in 2004 and filed a complaint with the gendarmerie TASSIN LA DEMI LUNE (Rhone). An inquiry was opened, leading to the hearing of staff and former staff BIOMERIEUX. Mr. Mark HESLEHURST and his wife also made the subject of various threats anonymous telephone, advising them to stop any strong legal action against BIOMERIEUX. They had to call a security company to protect themselves (UNIVERSAL SECURITY). Finally, in the same spirit, Mr. Mark HESLEHURST was informed that Mr. Thierry CHOULET, computer expert BIOMERIEUX the Company would, unwittingly diverted information in his computer, why he was dismissed for misconduct by the Company BIOMERIEUX. (See Exhibit No. 126) Mr. Mark HESLEHURST and the Company shall also FRANÇAIS CONSULTANTS note that the Company BIOMERIEUX does not dispute the facts set out above. In the months that followed the departure of Mr. Florence GIRARD, these same methods of collaboration with perdurées the successor to Mrs. Florence GIRARD, Madam Maryse BOUCLET. Mr. Mark HESLEHURST it is again met with Mr. Jean-Claude RIVARD, which he said at the time that Maryse BOUCLET, still trial period, would probably not be hired permanently within the Company Biomerieux, even if they were considering for the moment to extend the trial period and this probably to appease a difficult social climate. Mr. Mark HESLEHURST has, in this context, the company notified its BIOMERIEUX decision by letter dated July 30, 2002, to cease all contact with her staff and to entrust this activity to Mrs. Estelle Howell and Mr. David Holmes.
(Exhibits 35, 36, 37 and 38) Estelle Howell and Mr David Holmes were therefore the only interlocutors Company BIOMERIEUX until July 2003, Mr. Mark has more HESLEHURST personally manage training within BIOMERIEUX during 2003, so BIOMERIEUX was unwelcome at trial to support that " difficulties reappeared at the beginning of 2003 then the return of Mr. Mark HESLEHURST " Have the conclusive on the above facts and to inform the Court that notice of a summons to communicate against the Company BIOMERIEUX on documents following: - The first letter of extension of the probationary period on the Contract Work Ms. BOUCLET (2002), - The resignation of Mrs. BOUCLET, - The letter of dismissal for serious misconduct of Mr. Thierry CHOULET, - Three letters from Mr. Christian NOIZET, Mr Marc BARREL and Mr. Alain GUIMAUX produced by Mrs. Florence GIRARD under its actions relating to employment. The Company BIOMERIEUX not fit to respond to this communication, conclusive have summoned a second time to produce these documents. 6/ A new contract for a term of one year was signed on 1 January 2003, with immediate effect BIOMERIEUX between the Company and the Company incorporated on 15 FRANCAIS CONSULTANTS January 2003 for English language training at an hourly rate of € 37.73 HT and language Spanish at an hourly rate of 41 € plus VAT per hour. In the absence of automatic renewal, termination should be made by letter to the other party within three months before its annual term. (Exhibit No. 39) 7/ In response to a letter with acknowledgment of receipt of the February 19, 2003, the FRANÇAIS CONSULTANTS Company, through its counsel, reminded the company BIOMERIEUX be a victim of discriminatory and abusive practices and its willingness to obtain compensation for damage resulting therefrom. (Exhibit No. 44) BIOMERIEUX pretended to ignore a letter dated February 28, 2003 the reasons for this letter
then, by registered letter with acknowledgment of the same day, has challenged the terms. (Exhibits No. 45 and 46) 8/ By registered letter with acknowledgment of receipt of the September 29, 2003, the Company BIOMERIEUX suddenly informed the Company of its decision FRANÇAIS CONSULTANTS terminate the training contract with effect from 31 December 2003. (Exhibit No. 47) The Company FRANÇAIS CONSULTANT then challenged by letter dated October 15, 2003. (Exhibit No. 48) The Company BIOMERIEUX then decided to use a tender for training on the 2004 program sent the following e-mail October 29, 2003 the Company FRANÇAIS CONSULTANTS. (Exhibit No. 49) By registered letter of 4 November 2003, the Company maintained its decision BIOMERIEUX to terminate the contract for the provision of training, denounced by the abovementioned letter of 29 September 2003. (Exhibit No. 50) It is within this context that the following writ of summons dated 28 November 2003 FRANÇAIS CONSULTANTS Company has assigned the Company on the basis BIOMERIEUX provisions of Article L. 442-6-I of the Code of Commerce for the purpose of seeing order to pay the principal sum of € 600,000 in damages because of practical discriminatory. Mr. Mark HESLEHURST voluntarily intervened in the proceedings pending before the Tribunal de Commerce de Lyon introduced by the Company with FRANÇAIS CONSULTANTS also been the victim of discriminatory practices in the years 2000, 2001 and 2002, before the founding of the Society FRANÇAIS CONSULTANTS occurred in 2003. (Exhibits No. 40 and 41) The Company believes, however BIOMERIEUX duty support, for the first time in question of Appeal, that their claims are inadmissible on the grounds that the provisions of Article L 442-6-I-b second of the Commercial Code have been introduced by Law No. 2005-882 of August 2 2005 for Small and Medium Enterprises. Considering that "abuse of economic dependence" is relied on facts that occurred During the years 2000 to 2003, the Company concluded BIOMERIEUX the inadmissibility of
the claims from conclusive on the basis of Article L 442-6-I-2-b of the Code of Commerce. The Company BIOMERIEUX does not, however, involved the application of of Article L 442-6-I-1 and L 442-6-I-4 of the Commercial Code also invoked by appellants. Such a plea of inadmissibility, however, is unfounded. Contrary to the allegations of bioMérieux, the provisions of Article 442-6 L-I-2-b of the Commercial Code have not been introduced by Law No. 2005-882 of August 2 2005, but by Act No. 2001-420 of 15 May 2001 and more specifically Article 56. This legal provision is therefore fully applicable to the dispute. The claims of Mr Mark HESLEHURST and Society FRANÇAIS CONSULTANTS on what legal basis, as on the provisions of Article L. 442-6-I-1 / and L 442-6 I-4 / Commercial Code, are perfectly admissible. B - ON THE MERITS OF THE CLAIMS OF THE COMPANY AND CONSULTANTS FRANÇAIS SIR MARK HESLEHURST B-1 / Law Article L 442-6-I of the Commercial Code provides that: "I - Encourages the responsibility of the author and requires him to repair the damage caused does, by any producer, trader, business or person registered with the directory Trades: 1) of practice in respect of a business partner or get him prices, payment terms, conditions or terms of sale selling quite discriminatory and not justified by real counterparts, creating, thus, for This partner, a disadvantage or an advantage in competition; 2) a) (...) 2 b) to abuse the dependency relationship in which he is a partner or power purchase or sales by submitting it on commercial terms or unjustified obligations; (...) 4) obtain or attempt to obtain, under the threat of an abrupt, total or partial trade relations, prices, payment terms, terms of sale, or terms of trade cooperation clearly derogatory terms
General Sales 5) (...) " The Court of Cassation ruled that the fact that a producer to agree to a partner economic pricing, payment terms, conditions of sale or terms of sale Buying or discriminatory and not justified by real counterparts, created for this partner an advantage in the competition without it being necessary to the administration or the operator did not receive the same benefits, to demonstrate the harm that these practices Illegal caused (Cass. Com. April 6, 1999, Dalloz Affaires 1999.1024). B-2 / Facts: It is necessary to examine all the facts establishing the discriminatory practices used by BIOMERIEUX against Mr Mark HESLEHURST and society FRANÇAIS CONSULTANT, to the point of placing both in a situation of dependency economy. a / BIOMERIEUX imposed tariffs training schedules very below market failing to terminate the contracts: From the beginning of their trade BIOMERIEUX imposed conditions tariff. During September 1999, the company asked Mr. Mark BIOMERIEUX HESLEHURST to obtain an estimate for the formation of English. Mr. Mark HESLEHURST set September 7, 1999 an hourly rate of 320 francs that HT had to reduce, after discussion of bioMérieux, 270 FRF HT. (Parts 1 and 2) Indeed, in return for exclusivity would be granted by bioMérieux, this imposed upon him last time that an hourly rate far below market rates. Mr Blair SHEPARD attests to that during the first meeting in October 1999 between the Company and Mr. Mark BIOMERIEUX HESLEHURST, the latter "was very surprised to learn he would have the exclusive language training for BIOMERIEUX, representing about 350 trainees. Mr. HESLEHURST for this work was below the market price for a contract overall. This condition should be on only one year as a test. If the quality of Avera good during the following year, Mark HESLEHURST could work at the cost of market. " (Room 103) This volume of training and suggested to Mr Mark was about HESLEHURST 15 000 hours, a volume can therefore be considered the biggest given volume to a supplier Rhone-Alps, with the particularity that Mr. Mark
HESLEHURST exercised at the time in his personal name, without framework agreement with the Company BIOMERIEUX until late 2000. Notwithstanding this initial agreement, from February 2000, the company had lowered BIOMERIEUX rate Time to 180.00 francs Duty for English language training, an amount not only well below the market but also very much lower than the initial estimate of 320 francs and 270 francs HT HT. (Exhibit 15) Mr. Mark has HESLEHURST of charge during the year 2000 on the tariff imposed Frs 180.00 exc. (Part 3) In September 2000, Mr. Mark HESLEHURST had however agreed with the company BIOMERIEUX that the rates for the training year 2001 would be revised and adapted to the price of market. Given this agreement, Mr. Mark HESLEHURST then proceeded, with confidence, recruitment of five new teachers to help deliver training to BIOMERIEUX staff. Even though the program was then started for five weeks, the Company Biomerieux, represented by Mrs. Florence Girard, head of training is reneged on its agreement and was set at 200 francs per hour before tax cost benefits Mr. HESLEHURST. (Exhibit 15) Then Mr. HESLEHURST has been finally imposed a contract for the provision of the service December 14, 2000 for the training year 2001 with lower rates include: 1) test: free if the person being tested then benefits from a training FRANÇAIS of CONSULTANTS, charged 180 francs per hour if necessary due to 15 minutes per test, or 45 francs per person tested does not receive the benefits FRANÇAIS CONSULTANTS of the future exercise, 2) Audit and need for language training: maintenance free English if the person tested then benefits from a provision of FRANÇAIS CONSULTANTS; charged 180 of appropriate time at 15 minutes per test is 45 francs per person tested not enjoying the benefits of exercise on FRANÇAIS CONSULTANTS future 3) Telephone lessons (30 minutes per class): 180 Francs per hour 4) Conference: 200 Francs per hour
5) Audit language in the context of mobility: 200 francs per person 6) Individual evaluation of end of course: included in the overall delivery, 7) Group lessons: 200 Francs per hour "(Article 3 of the contract) (See Exhibit 4) Five months after the signing of this Agreement, the Company has terminated BIOMERIEUX by letter of May 31, 2001 with effect as of December 2001. (Exhibit 6) Amazed at the position taken by the company BIOMERIT when he came to recruit Personnel, Mr Mark HESLEHURST met its representatives at a meeting held July 10, 2001 and recalled the occasion, by letter dated July 16 the dramatic consequences of such a decision for the future of his company and its employees. (Exhibit 7) Fully aware that 70% of sales by Mr Mark HESLEHURST was done with her, BIOMERIEUX was thus able to use considerable leverage over the latter up to abuse. (Exhibit 7) Throughout their years of collaboration, the company has used the same BIOMERIEUX strategy to obtain tariff discriminatory and abusive conditions of: Put pressure on its supplier of services, Mr Mark HESLEHURST or company FRANÇAIS CONSULTANT Threaten to terminate the contract, knowing full well he or she was under given its economic dependence on the one hand, turnover therefore made on its behalf in relation to its total turnover, and secondly, investments. Get pricing conditions and discriminatory and definitely put Mr. Mark HESLEHURST FRANÇAIS CONSULTANT or company under his control as economic and contractual obligations under imposed, -
Accept then renew the contract to discriminatory conditions imposed on Mr. Mark HESLEHURST or company FRANÇAIS CONSULTANT. In an attempt to refute such practices violate any fair trading, the Company BIOMERIEUX attempts to invoke various arguments that will be below demonstrate the absence of relevance. First, BIOMERIEUX always argued that sending the letter termination of 31 May 2001 explained, according to him, "logically" by the fact "Each year training needs evolve both in terms of their volume and their object, according to people who are reached formations and their functions within the company. " Such an argument is unconvincing. Contrary to the allegations of the respondent, the sending of such letter of termination does not in correspond to any standard procedure or in his own words "logic". Relations were in fact based on a fixed term of one year with tacit extension of 12 months. No legitimate reason can not justify in this context that the Company contract BIOMERIEUX be forced to terminate the annual contract (Article 10 of the contract - Exhibit No. 4). This argument is even less convincing that: - Firstly, the Company has sent BIOMERIEUX in 2002 no letter of termination terminate the contract for running even though the volumes of services have been drastically reduced for 2003. We went from 68 groups in 2002 to 8 groups in 2003 a loss of 60 groups, corresponding to approximately 4500 hours of training and lost to the removal of 4 faculty full-time employees. - On the other hand, the volume of activity and the conditions required to implement the program 2002 compared to the 2001 program are virtually identical. The letter of termination has been clearly sent that for strategic reasons and to get diverse financial concession on the part of Mr. Mark HESLEHURST. These methods and means of pressure was used for the sole purpose of obtaining pricing conditions at low prices, and therefore discriminatory. They are compelling and indeed accepted by the Company BIOMERIEUX.
The dismissal letter that the Company BIOMERIEUX addressed to Mrs. Florence GIRARD April 19, 2002 on this point is particularly telling in that it indicates: "You have lobbied against the principal provider of responsible the teaching of English in business, designed to gain favor sex from him in return for the respect of your liabilities on the revaluation of fees. Following his refusal, you attempted to cause the failure of its collaboration with the company by questioning the quality of his performance but did not inform your hierarchy. Given the seriousness of this information, we took care to verify strictly to the facts that have been reported. The evidence we have gathered unfortunately confirm their reality. ... Your abusive generated unbearable working conditions for your team, significant deficiencies in the training department and focused seriously damage the image and reputation of bioMérieux. The seriousness of the facts you have alleged would justify immediate termination of your employment contract. However, to allow you to find a job in satisfactory condition, we grant you a right to notice and severance redundancy ' (Exhibit No. 128). This letter confirms the dismissal unfair and discriminatory practices, and the pressure financial and moral HESLEHURST Mr. Mark was the victim both before only after the dismissal of Mrs. Florence Girard. The Company BIOMERIEUX moreover fully benefited during these years of collaboration with Mr. Mark HESLEHURST benefits, including financial costs arising from such illegal practices of which she knew no practice. (Exhibit No. 97) For proof, various letters to his attention by Mr. Mark HESLEHURST. For example, Mr. Christian NOIZET was made in 1999 receiving the revised estimate downward, at the request of the Company BIOMERIEUX by Mr. Mark HESLEHURST. Similarly, Mr. Caroly, Legal Director of bioMérieux, was made recipient of the letter of termination of contract sent by the latter, May 31, 2001, to Company FRANÇAIS CONSULTANTS.
The letter also signed by Mr Pierre BAILLY Department Purchase of Company Biomerieux, was even sent a copy to Mrs. Florence Girard. (Item No. 6) Representatives of bioMérieux, including Mr. Benoit Adelus (General Manager), Mr BARRAL (Responsible Purchasing Department, a close friend residing in Mrs. Florence GIRARD), Jean-Claude RIVARD (HR Director), Mrs. Frédéric SAINT OLIVE (Communications Director), Mr. Christian NOIZET (Director HR World), etc. ... were perfectly informed. (Exhibit No. 95) The Company does BIOMERIEUX could legitimately claim that the termination letter May 31, 2001 was a common practice, insofar as it recognizes the reality of the pressures against Mr Mark HESLEHURST for conditions discriminatory tariff. Thus, the officers of the Company have clearly bonded BIOMERIEUX methods used by their employee, Ms Florence GIRARD, using this strategy of denunciation Contract to put pressure on the co-contractor which was then in a position to accept pricing conditions of the Company BIOMERIEUX or lose any final contract. Fearing so do not get training contracts for 2002, and knowing full well what would happen to his business without forgetting the recent hiring of teachers, Mark HESLEHURST was unable to negotiate its rates and obtain similar rates to those of competitors. Negotiations have never been undeniably correct and fair between the parties. His strategy has worked, BIOMERIEUX finally entered into five new contracts and at the conditions imposed tariff and just as disadvantageous to Mr. Mark HESLEHURST which was forced to sign dated January 24, 2002, May 30, 2002 and July 8, 2002. (Parts 8-11 and 13 and 14) They should include: - English Training Group: hourly rate of 33.54 € HT - English Training Telephone: rate of 33.54 € HT hour, - Training English for the overall costumer service: € VAT rate of 33.54 per hour - Training Spanish group and individual lessons: € VAT rate of 41.16 per hour
- Intensive English training costs of 33.54 € HT per hour and € 15.24 plus VAT per person trained in addition to the individual consultant - Training "Intensive English" at a price of 33.54 € HT Time - Training, "Presentation en FRANCAIS" hourly rate of 33.54 € HT Secondly, the Company does not also support BIOMERIEUX then the dismissal of Mrs. Florence GIRARD occurred in April 2002, Mr Mark HESLEHURST could have sought new pricing conditions for the training during 2003, it would not, according to him, did. Indeed, beginning in April 2002, Mr. Mark HESLEHURST could not make any approach to the League BIOMERIEUX for new tariff conditions since on the one hand, contracts for training and 2002 were already signed in running and on the other hand, despite having made such a move in November 2002 with her, no increase was allowed. Thirdly, the Company BIOMERIEUX may not, in the same vein, claiming that it would, then the departure of Ms. Girard, "very quickly took the necessary measures to end these problems, first by agreeing on a portion of the revaluation rate requested by Mr. HESLEHURST .... " This statement is totally false. Per-hour German course fixed at 270 francs in 2000, 2001 and 2002, has been no increase, while the market price was around 380 francs. It was the same for Spanish lessons at an hourly rate of 250 francs in 2000, 2001 and 2002 and lectures given during the years 2000 and 2001. The telephone at 180 francs during the years 2000, 2001 and 2002, were not registered rate increase, even though the normal market price was estimated at 350 francs. No increase was granted during the year 2002, the Company Biomerieux, as illustrated by the production of invoices. (See documents 57 to 62, 66 to 78) Mr. Mark HESLEHURST and the Company shall pay the debates FRANÇAIS CONSULTANTS rates of their competitors that the conditions tariff imposed on them were well below the market. (See documents 63 to 65, 90 and opposing pieces 15 and 16) These abuses are by no means ceased then the dismissal of Mrs. Florence
GIRARD. Quite the contrary, they have endured. Maryse BOUCLET, successor to Mrs. Florence GIRARD actually applied the same methods, and this with the backing of his superiors, to obtain conditions cheap tariff. The latter, moreover, despite the renewal of his initial trial period, was eventually thanked the Company BIOMERIEUX after Mr. Mark is HESLEHURST is again complained about this situation and these discriminatory practices. The Company and Mr. Mark FRANÇAIS CONSULTANT HESLEHURST have, in this regard is summation by act of February 6, 2007, to the Company from disclosing the first letter extending the trial period on the employment contract of Ms BOUCLET. In the absence of any spontaneous communication on the part of bioMérieux, the had conclusive grasp Mr. Counsellor of the State Implementation, by way of conclusions incident in order to obtain disclosure of this particular document, as well as documents following: the resignation of Mrs. BOUCLET, the letter of dismissal for serious misconduct of Mr. Thierry CHOULET, the 3 letters from Mr. NOIZET, Mr and Mr BARREL GRIMAUX produced by Mrs. Girard in the context of action relating to employment it initiated against the Company BIOMERIEUX. The Company BIOMERIEUX finally produced in the debates opposing piece No. 26, a courier she sent April 19, 2002 to Mrs. Mary BOUCLET which does not correspond to the letter sent by this Society to Mrs. BOUCLET to notify him of the renewed probationary period. Indeed, the proposal to extend the trial period Maryse BOUCLET him was sent a letter dated April 18, 2002. The opponent's piece No. 26 paid by the Company in the debates is also BIOMERIEUX explicit reference to this proposal for the renewal of 18 April 2002.
In addition, the correspondence of April 19, 2002 filed by the Company in debates BIOMERIEUX (Opponent's piece No. 26) reported a termination at 21 April 2002, even though the contract was eventually continued beyond that date, as evidenced by the letter of dismissal Maryse BOUCLET beyond that date, June 24, 2005 (opponent's piece No. 27). In the absence of any production of the letter to renew the trial period of 28 April 2002 it will be any consequences from that law. Moreover, during this same period very chaotic, Mr Mark HESLEHURST was informed that Mr. Thierry CHOULET, computer expert of the Company Biomerieux, diverted, without his knowledge, confidential information contained in its computer, including all those mails confidential. The purpose of clear itself of any liability the Company has proceeded to BIOMERIEUX dismissal for serious misconduct of the latter, even though it can not be seriously challenged that information unlawfully detained have been used to defend the interests of
Then a meeting with the Company BIOMERIEUX, Mr Mark HESLEHURST that BIOMERIEUX not accept any increase for the year 2003 and that even better, the 17 groups considered to be reduced to 8 groups, or a loss considerable financial professional activities of Mr. Mark HESLEHURST. (Exhibits 87, 117 and 119) This decision was announced suddenly December 23, 2002 by mail, during holidays year end, the Company BIOMERIEUX without any warning letter and information previously, such as to enable him, in a reasonable time to reorganize. (Parts 86, 107, 108, and 118) BIOMERIEUX did not hesitate to impose a six-month test by booking after it is able to maintain the current rates or to break the contract (Exhibit 89). This test was a means used by the Company BIOMERIEUX to pressure Mr. Mark HESLEHURST. Then January 13, 2003, BIOMERIEUX accepted a rate increase of 5% two stages, the first of January at a rate of 37.73 Euros then counting July 42 Euros. (Room 109)
However, this agreement has not been respected by BIOMERIEUX. This rate was still considerably lower than the market estimated at 350 francs tax free (53.36 HT Euros). (Exhibit 79) Fourth, the Company BIOMERIEUX can not claim that the comparison of prices charged by the Company with FRANÇAIS CONSULTANTS market prices could carried out in absolute terms, but according to all parameters of each acting on that contract and, therefore, depending on the gross margin realized by those stakeholders. Such an argument may indeed call into question the very clear difference between prices charged by Mr. Mark HESLEHURST compared to its competitors. This method unfair ruling derisory rates under penalty of breaking relations contract has been constantly used by BIOMERIEUX during their years collaboration. Mr. HESLEHURST has also complained about this practice from the company BIOMERIEUX following letter with acknowledgment of receipt of the March 20, 2003 but vain. (Room 106) Notwithstanding the dismissal of Mrs. Florence GIRARD, Mr. Mark has HESLEHURST got no tariff increase. Quite the contrary, this strategy has been further extended for the training year 2004 as well as evidenced by the letter of 29 September 2003 addressed to the company FRANÇAIS CONSULTANT tending again to terminate the contract in January 2003. (Exhibit 47) Notwithstanding the termination letter, a meeting was held between October 24, 2003 Mr. David Holmes, managing partner of the Company FRANÇAIS CONSULTANTS, Madam BOUCLET of bioMérieux for providing for contract renewal, although Naturally, under certain price conditions.
Mr. David Holmes certifies that: "October 24, 2003 ... this unscheduled meeting surprised me and my first statement was to say that I did not understand the reason for my meeting with Ms. BOUCLET, who spoke of the 2004 training, while I knew that our contract ended. At this point, Madam ARDUINI Miny said the contract is completed but we want to renegotiate for 2004. There was a misunderstanding with that letter you have received and what should have been done by the legal department. Later, she said they could not renegotiate while litigation was in place and that to keep Mr. HESLEHURST had to make concessions or stop. When I asked Mrs. Miny Arduini, it said concession meant compromise. It is my opinion that this tactic, not professional, was directed to my person for me to put pressure, and indirectly to arrest Mr. HESLEHURST any legal action and offer me as a manager FRANÇAIS CONSULTANTS the opportunity to work with BIOMERIEUX in 2004. " (Exhibits 84, 85 and 93) This certificate is particularly evocative of the methods used by the collaborative BIOMERIEUX. Unsuccessful for these purposes, BIOMERIEUX confirmed by letter dated November 4 2003 termination of the contract, while justifying it later in a letter dated November 5 2003, by the evolution of language training needs. (Parts 51 and 52) This argument is not convincing. Reading the specifications provided by the Company BIOMERIEUX for a so-called call tender demonstrates that its needs were in fact identical to those of previous years.
Thus, if the Company FRANÇAIS CONSULTANTS had accepted the terms and tariff the organization of training are required by the Company BIOMERIEUX, the contract would not have been terminated. However, such collaboration at the expense of Mr. Mark HESLEHURST and Society FRANÇAIS CONSULTANTS could not continue indefinitely. Mr. Mark HESLEHURST and Society FRANÇAIS CONSULTANTS have indeed undergone a Consequently financial loss during their years of collaboration with BIOMERIEUX even if only in consideration of tariffs far below market. The Company has BIOMERIEUX cons pulled by a financial advantage by reducing very substantially the cost of staff training. Disloyal behavior of bioMérieux is even worse than that they knew the economic dependence was Mr. Mark HESLEHURST then the Company FRANÇAIS CONSULTANTS. b / The economic dependency is established in terms of turnover to achieve: Mr. Mark HESLEHURST was undoubtedly in a state of economic dependency. Turnover to receive the light of all contracts during the years 2000 to 2002 on behalf of the Company BIOMERIEUX relative to their total turnover in attest. 2000: Total turnover : Revenue receivable from BIOMERIEUX, all contracts: 189 € 442.00 € 133 745 A rate of 70.59% of dependence 2001:
Total turnover: Revenue receivable of bioMérieux, all contracts: € 413 815 € 243 083 A rate of 58.74% of dependence
2002: Total turnover: Revenue receivable of bioMérieux, all contracts: € 533 208 € 330 731 A rate of 62.02% of dependence (See parts 114, 115, 123 to 125) Mr. Mark HESLEHURST was moreover the only claimant for exercising languages BIOMERIEUX behalf of the Company during the years 2000, 2001 and 2002. Given this state of dependency, the company could impose BIOMERIEUX abnormal price conditions and organization of training without Mr. Mark HESLEHURST can challenge them. BIOMERIEUX can legitimately challenge the state of economic dependence based on letters sent in April 2002 and 2003 by FRANÇAIS CONSULTANTS under which it was stated that she worked with large multinationals and would have increased its turnover by 118% between 2000 and 2001, and 28.85% between 2001 and 2002 ... Indeed, Mr. HESLEHURST possessed no infrastructure in 1999 for his whether activity rooms for training, computers, photocopier, secretarial Administrative ...
It was at this time using other service providers, especially for work office (Room 101 of the bill ETUDLOC 23/02/1999 Room 102) Moreover, he employed only one teacher temporary. Its turnover for 1999 was then to 64,207 Euros (420,273 Frs) Only after the signing of contracts with the company after BIOMERIEUX 2000 that its sales will grow dramatically to the point of placing in a situation of economic dependence unmistakable. From 1999 to 2000, its turnover has tripled over two thirds of which are provided by contracts with bioMérieux. This economic dependence has also been confirmed in subsequent years. To assume this activity, Mr. Mark HESLEHURST moreover, had to use In January 2000 six new teachers working in almost all exclusive to the company Biomerieux. It should be remembered as evidenced SHEPARD Mr Blair that such contracts involved about 350 people to form an annual volume of about 15,000 hours work. This is exactly on the basis of the annual volume that Mr. Mark HESLEHURST conducted a number of investments in order to be able to answer this volume of training, including endorsing various financial loans, looking for rooms appropriate training and more consistent in recruiting suitable staff for answer this volume of training. These investments have been more risk than for Mr. Mark HESLEHURST During 2000, the Company BIOMERIEUX refused to sign any contract training (The first contract between the parties dated 14 December 2000). This environment placed Mr. Mark HESLEHURST in a state of dependence more prejudicial that he was receiving at the time, no contractual framework between it and the Company Biomerieux. It was therefore in no position to refuse the conditions imposed upon him for the year BIOMERIEUX 2001 by the Company, under penalty of being brought to dismiss 80%
of its staff and therefore assume a debt. The Company also attempts to challenge BIOMERIEUX figures cited by Mr. Mark HESLEHURST even though it is firstly clear that it was based on turnover BIOMERIEUX contract to which the Company had committed to organize its activities (logistics, personnel ...). Moreover, for the year 2001, the economic dependence of Mr Mark HESLEHURST is unmistakable. Its turnover amounted usually performed at approximately € 494 434 € 187 392 which charged BIOMERIEUX Society, a dependency of 45.21%. The state of economic and financial dependency of Mr Mark HESLEHURST towards BIOMERIEUX is unmistakable. So in any case manifestly wrong in the Commercial Court considered that based solely on his in 2001, Sir Mark was not HESLEHURST in a situation of dependence on the Company BIOMERIEUX. Nevertheless, the fact remains that the Company has BIOMERIEUX, at At least not respected the contractual commitments it had made to Mr Mark HESLEHURST in terms of sales volumes mentioned in the Conventions training. His responsibility is for that reason alone fully engaged. c / BIOMERIEUX unilaterally reduced the number of groups work: The working groups initially planned 3 to 4 people. Upon renewal of the contract and demand of bioMérieux, groups work have been changed on its own initiative February 13, 2002. (Exhibit 16) The program for the year 2002 was, in groups and hours of training, benefits following: -
Marcy: 28 groups for 80 hours of training each Balme: 11 groups for 80 hours of training each, in addition to travel. Help Desk: 6 x 30 hours Individual Ozzola: 80 hours Craponne: 17 groups for 80 hours of training each NFE: 4 groups for 80 hours of training each Spanish: 2 groups for 80 hours of training each Phone: 76 people for 20 hours of training each Presentation, education supplies: 230 x 350 Francs The number of people per group is actually increased from 5 to 6, which reduced the number of groups and led to a decline in remuneration of Mr. Mark HESLEHURST. The volume of activity is also increased from 61 to 8 working groups working groups between 2000 and 2003 even though the satisfaction audits positive. The number of participants within each group decreased. As of May 2002, the company decided to work BIOMERIEUX group 6 persons and informed Mr. Mark HESLEHURST its desire for a second provider for training in English. (Exhibits 42, 43, 56 and 80) Given the fact that it would no longer be the sole supplier of bioMérieux for the 2003 program, Mr. Mark HESLEHURST asked to charge a close of the Market. BIOMERIEUX refused any discussion. (Parts 54 and 55)
Given its state dependence, Mr. Mark has HESLEHURST the bow. He was then forced to make the dismissal of two teachers he had hired to ensure the training given to employees of bioMérieux. These substantial changes in contractual relations have been taken without notice of BIOMERIEUX with Mr. Mark HESLEHURST or the Company FRANÇAIS CONSULTANTS. They have been simply imposed. The Company attempts BIOMERIEUX however be justified in arguing that "in the month of June 2002, other problems, totally unrelated to Ms. Girard, have been found bioMérieux, particularly regarding the organization of school hours. " Now, at this time, the Company BIOMERIEUX awarded him a larger volume of courses phone. Sixty eight people were in fact due to receive 40 hours of classes each, or 2 courses week instead of one expected. This increased volume of calls during a necessity for Mr. Mark HESLEHURST logistics heavier requiring the intervention of 11 consultants. Then, even though prices had just begun, the Company has ordered BIOMERIEUX Mr. Mark HESLEHURST to stop them immediately. Mr. Mark HESLEHURST had, in this context, intervening with the direction of the BIOMERIEUX. As one response, the Company BIOMERIEUX refused to pay the hours worked and blocked the bill from Mr. Mark HESLEHURST; The latter had to bear the expenses of its consultants. He furthermore had to part with one of its consultants, in the person of Ms. Deborah RAMSEY. (Exhibit 81) Similarly, the Company BIOMERIEUX can claim that "all the conditions governing
relations between the parties were perfectly normal and it is particularly true of payment at 30 days. " Because of the limited margin generated by Mr. Mark HESLEHURST, for the Company FRANÇAIS CONSULTANTS, it was agreed that the bills would be paid upon receipt, on validation of the training department of bioMérieux. Mr. Mark HESLEHURST, as the Company FRANÇAIS CONSULTANTS, could not in fact bear the costs of its payroll in the long term, why the Company BIOMERIEUX committed to pay immediately or within 10 days, the invoices issued by Mr. Mark HESLEHURST, as the Company FRANÇAIS CONSULTANTS. Finally, while recognizing the significant decline of courses granted to the Company FRANÇAIS CONSULTANTS during various periods, including fiscal 2003, BIOMERIEUX trying to justify his attitude that she does not hesitate to call of "provisional" in that it would have found, as of June 2002 "An deterioration of the quality of services provided by the Company FRANÇAIS CONSULTANTS. Such allegations are clearly contrary to reality. For proof, simply refer to the quality reports prepared by the trainees, which highlight the quality of training delivered by Mr. Mark and HESLEHURST FRANÇAIS CONSULTANTS Company. (Exhibits 83, 88 and 89) In the same spirit, the Company BIOMERIEUX can try to claim that Mr. Mark HESLEHURST had "unilaterally decided to spend over telephone 0.5/heure / week as set up now an hour without it ever been no exchange between us, "referring to an email dated June 6, 2002 from Maryse BOUCLET (Exhibit No. 29). Similarly, it can not be relied on a letter from the same person issued June 18 2002, under which it stated that he would "never intended you to leave, as you would expect a number of total hours of training "as an email dated 8 July 2002 citing "clear abuse of the provision FRANÇAIS CONSULTANTS" (Exhibit No. 33). These unfounded allegations are devoid of any relevance. It is clear from the terms of the contract for 2002 between Mr. Mark
HESLEHURST and Society BIOMERIEUX there has never been a unilateral decision by Mr. Mark HESLEHURST to teach voice, but it is a practice contractually agreed between the parties. In addition, Mr. Mark HESLEHURST has formally challenged the statements that were required to against him by Mrs Maryse BOUCLET in his e-mails of 6, 18 June and 8 July 2002 which corresponded again to a strategy used by the latter, as before by Mrs. Florence GIRARD, to impose unacceptable conditions under penalty tariff breach of contract. d / invoices issued by Mr. Mark HESLEHURST were revised unilaterally downward when paid by BIOMERIEUX: The Company BIOMERIEUX was further evidence of disloyalty in the particular context of enforcement of contractual obligations. Periodically, the Company BIOMERIEUX refused to pay the invoices issued by Mr. Mark HESLEHURST even though the benefits were made. The Company BIOMERIEUX did not hesitate to unilaterally reduce the amount of invoices adjusting the amounts below those charged and sought consequently the emission assets corresponding to the unpaid difference. Mr. Mark HESLEHURST is systematically intervened with the Department of BIOMERIEUX to try to resolve these irregularities but had each time to comply with these abusive practices. Notwithstanding the departure of Mrs. Florence GIRARD, this practice has continued.
Similarly, while the contract of January 30, 2001 included an hourly rate of 270 francs duty by German course, BIOMERIEUX refused to make payment of the invoice Mr. Mark HUSLEHURST. (Exhibit 12) He had to establish a corrective invoice with an hourly rate of 250 francs plus VAT. (Parts 57 to 59)
It will be well on the cost of supplies contractually fixed at 600 francs. The cost of supplies has been charged at this rate contract and was the subject of an invoice amendment, on application BIOMERIEUX the sum of 350 francs. Such actions were renewed in April 2001: Sir Mark had there HESLEHURST yet billed under the old tariff. Spanish courses priced at € 41.16 were also charged € 41.00. The lectures provided at a rate of 200 francs as part of the training contract 2002 have been accepted for a total of 180 Francs. Similarly, mobility tests on the 2000 and 2001 were charged to 180 francs, while Just as the contract stipulated a rate of 200 francs. Finally, callers hear specify that travel expenses were, as it was contractually provided (Article 6 of the contract) at their cost, which had the direct effect lessen the net training schedule that Mr. Mark HESLEHURST and Society FRANÇAIS CONSULTANTS enjoyed. These travel expenses not actually being included in the hourly rate charged by the Company Biomerieux. e / The BIOMERIEUX imposed certain benefits to Mr. Mark HESLEHURST without financial compensation. More than two hundred employees have been audited by Mr Mark HESLEHURST even though they have not subsequently received training. The billing of these audits has been refused by the Company BIOMERIEUX, even though it was contractually provided for the years 1999 to 2002. Mr. Mark HESLEHURST also never been able to obtain payment of its fees displacement, or an average of 60 visits per month, 2,412 trips over three years, The
cost of a trip with an average of 13 € per visit. It was also requested in 2001 with Mr. David Holmes to make a presentation of his personal business with the works council of the Society BIOMERIEUX and unions. While this provision was to be charged at two hours of training, the Company BIOMERIEUX but refused any make any payment. In 2000 and 2001, several professional translations or corrections have been made by Mr. Mark HESLEHURST without it ever could be settled by the Company Biomerieux. - F / The BIOMERIEUX interfered in the recruitment of staff Mr. Mark HESLEHURST: The Company has chosen BIOMERIEUX some consultants and has met before they exercise within the company. The Company maintains BIOMERIEUX to justify such discriminatory practices and unfair that "the Company FRANÇAIS CONSULTANTS employing only consultants that are do not know whether they are employees, according to him, would be likely to have enabled him to significant savings under its payroll. " The allegations of bioMérieux that Mr. Mark HESLEHURST only employed in 2001 only two employees, including himself and his wife, then in 2003, four employees, are imaginary. The list of employees of Mr. Mark HESLEHURST was communicated to the debates. (Parts 99, 112, 113 and 120) Such a claim is even less credible that it was physically impossible for Mr. Mark HESLEHURST teach 15 000 hours of training alone (his wife
was not a teacher), moving both on five different sites, and by teaching German and Spanish languages he does not practice. The statements of the Company are BIOMERIEUX on this grotesque.
Moreover, the consultants whether or not employees, they have shown a financial cost to Mr Mark HUSLEHURST for society FRANÇAIS CONSULTANTS insofar as they have been paid in respect of their performances. The Company BIOMERIEUX can also claim any of its employees being French, the Company would have FRANÇAIS CONSULTANTS considerable savings in social security. This erroneous claim as evidenced by the documents in the debates. Half of the employees of the company FRANÇAIS CONSULTANTS is subject to French rule. This last argument is irrelevant since the nationality of employees FRANÇAIS CONSULTANT as the wage which they depend are no relation with the state of economic dependence suffered by the company and Mr. HESLEHURST FRANÇAIS CONSULTANT. To better understand the structural, social and financial conditions in which Mr. Mark HESLEHURST was before and just after the beginning of its relationship with the Company BIOMERIEUX the summary comparison below is exposed particularly eloquent: Mr. Mark HESLEHURST situation prior relationships with the Company BIOMERIEUX Location Mr. Mark HESLEHURST after the beginning of a relationship with the Company BIOMERIEUX 2 employees: Mr Blair and Mr Mark SHEPPARD HESLEHURST 8 employees including 6 exclusively for the Company BIOMERIEUX No infrastructure, establishment at Mr Mark HESLEHURST training TASSIN Location: 120 m2 with 3 classrooms and administrative office Not a secretary full time secretary No hardware resource center No two personal loans personal loan for equipment and building refurbishment work Turnover: € 74 207 Turnover: € 189 442 € 133 745 which made on behalf of bioMérieux is 2 / 3 of total turnover - G / BIOMERIEUX The company has imposed a clause entitled "Bonus Malus" totally unreasonable:
The Company BIOMERIEUX actually inserted in contracts a clause entitled "Bonus - Malus' reads: "Penalties will be negotiated by bioMérieux SA against FRANÇAIS CONSULTANTS in the
following cases: absence of a trainer, 2% per week of absence is limited to 10% of the invoice amount expected for delivery in error. In case of accident or illness, FRANÇAIS CONSULTANTS will replace the consultant within 48 hours. "
This clause is imposed in any competitor of Mr. Mark HESLEHURST or company FRANÇAIS CONSULTANT. It is undoubtedly unfair in that it constituted a considerable financial risk for Mr Mark HESLEHURST, practicing in personal name without any consideration is given to him. This was unfair moreover, repeatedly invoked by the Company BIOMERIEUX against Mr Mark HESLEHURST, without any foundation. Indeed, as the Company FRANÇAIS CONSULTANTS Mr. Mark HESLEHURST have never experienced problems with their consultants. The difficulties came from the lack of trainees of bioMérieux during training, they are not attending classes. The only known incident concerning Mr. SATHERTHWAITE, consultant, victim of a malaise. Mr. Mark HESLEHURST had, indeed, require Mr. SATHERTHWAITE despite the fact he was ill to go to BIOMERIEUX to teach courses in which he was responsible and what to avoid penalties that are imposed on him under this clause "bonus malus". Mr. SATHERWAITS however, could not provide the expected course and landed in the infirmary of bioMérieux. This means if the practices of the Company BIOMERIEUX were excessive and restrictive vis-àvis the Company and Mr. FRANÇAIS CONSULTANTS Mark HESLEHURST.
- H / The BIOMERIEUX adopted an attitude of denigration against Mr Mark HESLEHURST:
Mr. Mark HESLEHURST has been insulting and unjustified criticism from BIOMERIEUX and its staff. His work was systematically discredited, even though the quality controls were quite satisfactory. Nadine Bernier, training assistance within the Company BIOMERIEUX under the supervision of Mrs. Florence GIRARD, attests to, dated February 4, 2003: "Having worked as an assistant in training BIOMERIEUX 1 April 1999 to January 13, 2001, under the command responsibility of Mrs. Florence Girard. As such, and during this period, introduced me at an operational training partnership between the English and the Company BIOMERIEUX FRANÇAIS CONSULTANTS HESLEHURST with Mr. Mark. I rubbed almost daily during this period and Mr. Mark HESLEHURST NEVER had any inappropriate behavior, NEVER had the slightest slip of the tongue nor made any dubious joke to me as to any team member training exclusively for women. Mr. Mark HESLEHURST has always demonstrated professionalism, patience, reserve and has always emphasized the quality of its provision of training for students whose scores were always very good. By cons, Mrs. Florence GIRARD, more concerned with his seductive power over men spoke frequently of his lunch outside with the men working at bioMérieux, which led him to return after 14 hours in office. I want to prove the good character of Mr. Mark HESLEHURST and its absolute correction both personally and professionally. " (Exhibit No. 94) The Company BIOMERIEUX can try to minimize these acts of vilification and pretend that Mr. Mark HESLEHURST would be close to paranoia. Indeed, it is clear, as evidenced various documents placed in the debates, that the facts presented do not fall in paranoia and are not exaggerated, especially since the Company has specifically BIOMERIEUX fired after leading a thorough investigation, Mrs. Florence GIRARD because of its pressure on service providers.
* I / The BIOMERIEUX weighed on the place of establishment of the occupation of Mr Mark HESLEHURST:
The Company BIOMERIEUX demanded that Mr. Mark HESLEHURST settled near Marcy l'Etoile for logistical reasons. Indeed, during the first year, 350 people have been audited. Intensive courses were given in the premises of Mr. Mark HESLEHURST to many trainees. Mr Blair SHEPARD certifies that during the first meeting held between Mr. and HESLEHURST BIOMERIEUX in October 1999, it has imposed as a prerequisite to signing any contract settled near bioMérieux MARCY L 'STAR. BIOMERIEUX has imposed on Mr. Mark HESLEHURST not geographically away from its place of establishment in order to maintain proximity of their workplaces to avoid loss of time, including travel. (Parts 53, 110 and 111) BIOMERIEUX moreover, due to the fact that Mr. Mark HESLEHURST do not have the time to infrastructure, to push the program in January 2000 when he should have started in October 1999 to enable him to find a Local and recruit the necessary staff. Mr. HESLEHURST has, to this end, had to take out two loans financial professionals to assume such an infrastructure. (Room 104, 105) According to its findings, the Company BIOMERIEUX not hesitate to claim, with a particularly daring, she would never move its employees to go undergo training which, she says, regardless of the risks of accidents journeys would result in a disruption of the incredible work. Such allegations are false. Indeed, an indeterminable number of people have attended language courses in the premises of the Company FRANÇAIS CONSULTANTS, reasons for which the Company BIOMERIEUX had also asked the latter to have adequate classrooms.
And have attended courses at the premises of the Company FRANÇAIS CONSULTANTS following people: Jean-Michel BEUCHER, Nathalie Delorme, Herve Bacheley Christian BALT, Mrs VERGAIN, Jean-François BRIDGE, Christian GUERIN, Françoise Rubellin, Jean-Marie Piot, Jacques Zindel, Olivier GOY, NOUGIER Mr. Vincent, Mr. PAOUR Olivier, Sir Issued PARUSSINI, Gérard CORBET, Sir Christian NOIZET (HR Director) ... Similarly, a group of Human Resources BIOMERIEUX comprising Mr Eric Appriou, Mrs. Florence Girard and Jean-Claude RIVARD attended training courses on the premises of the Company FRANÇAIS CONSULTANTS. In addition, training agreements expressly stipulated in Article 2 thereof, as training sites or premises of bioMérieux is the premises of the Company FRANÇAIS CONSULTANTS. (Exhibit No. 4). The training agreements signed in 2002 included in particular Article 2 thereof "DATE AND PLACE" that the training would take place at the premises of the Company FRANÇAIS CONSULTANTS. (Parts No. 10, 11, 12, 13, 14 ..). The allegations of bioMérieux are therefore unfounded. The reasoning of the Tribunal de Commerce de Lyon, following the analysis of bioMérieux, will be reformed.
In conclusion: Given the facts set out above, Mr Mark HESLEHURST as society FRANÇAIS CONSULTANT found himself in a situation where a refusal to contract on their part to conditions imposed by the Company BIOMERIEUX, could inevitably result in the loss of any contract and thus putting at risk the survival of the company. For all the foregoing reasons, Mr. Mark HESLEHURST FRANÇAIS CONSULTANTS Company and are entitled to seek review of Judgement of the Tribunal de Commerce de Lyon, 20 June 2006 when they clearly exist to engage the responsibility of the BIOMERIEUX for
abuse of dominant position on the basis of the provisions of Article L 442-6 of the Commercial Code.
B-on claims for damages from Mr. Mark heslehurst English society and consultants
Under the decree of June 20, 2006, the Tribunal de Commerce de Lyon rejected claims for damages from Mr Mark HESLEHURST and Society FRANÇAIS CONSULTANTS to the main ground that they were not entitled to act responsibly against Company BIOMERIEUX on the basis of the provisions of Article L 442-6 of the Commercial Code and the secondary ground that their claims were not justified. However, Mr Mark HESLEHURST and Society FRANÇAIS CONSULTANTS justify damages suffered because of discriminatory practices of bioMérieux, as will be outlined below.
a) The damage suffered by Mr. Mark HESLEHURST
Mr. Mark HESLEHURST, as the Company FRANÇAIS CONSULTANTS, suffered for several years, unfair and discriminatory BIOMERIEUX. Mr. Mark HESLEHURST is thus well justified in seeking compensation for damage resulting consequential loss of profits suffered by the latter during the years 2000, 2001 and 2002. That damage amounts to the sum of 477,238 Euros. Mr. Mark HESLEHURST product as that in the debates certificate attesting to his accountant, Mr. Christophe Lefevre company-owned FIDUCIAL. (Room 100)
In addition, Mr. Mark HESLEHURST suffered continual pressure throughout the exercise on the part of bioMérieux, which threatened, in case of refusal on the part of the contractual conditions imposed by it, to sever all contractual relationships . Mr. Mark HESLEHURST is again well justified in seeking compensation for his injury further and consequently conviction of the BIOMERIEUX to pay the sum of 30,000 Euros.
b) Regarding the prejudice suffered by the Company FRANÇAIS CONSULTANTS
The prejudice of the Company FRANÇAIS CONSULTANTS also corresponding to the shortfall amount, based on the accounting document prepared by Mr. Christophe Lefevre society FIDUCIAL the sum of 129,610 Euros for the year 2003. (Room 100) The Company FRANÇAIS CONSULTANTS is right to seek compensation for damages resulting from lost profits suffered by the latter due to lower prices charged in the Market for the year 2003, the sum of € 129,610.
*** Finally, given the unrecoverable costs that had to hire Mr. Mark HESLEHURST FRANÇAIS CONSULTANTS Company and to defend their interests, the Company BIOMERIEUX be sentenced to pay them each the sum of € 8,000 on the basis of the provisions of Article 700 of the New Code of Civil Procedure, and all the costs of proceedings, which distracted the benefit of CPA Junillon & WICKY, confessed on his claim of right.
FOR THESE REASONS
Given the ruling of the Tribunal de Commerce de Lyon 20 June 2006, Considering the provisions of Article L 442-6 of the Commercial Code, In limine litis, Declare admissible the claims of Mr. Mark HESLEHURST and Society FRANÇAIS consultation under the provisions of Article L. 442-6-I-2-b) having regard to the entry into force of this provision introduced by the Act of May 16, 2001, Accordingly dismiss the Company BIOMERIEUX its application inadmissible on this basis, On the merits, * Confirm the decision of the Tribunal de Commerce de Lyon in what was declared admissible and well founded voluntary intervention of Mr Mark HESLEHURST,
For the rest, * Reforming in its entirety the decision of the Tribunal de Commerce de Lyon, 20 June 2006 in that it has rejected such claims of Mr Mark HESLEHURST and Society FRANÇAIS CONSULTANTS and sentenced to pay the costs of proceedings as well as compensation under the provisions of Article 700 of the New Code of Civil Procedure
Therefore, acting again * DECLARE admissible and well founded voluntary intervention of Mr Mark HESLEHURST.
* NOTE that Mr. Mark HESLEHURST FRANÇAIS CONSULTANTS Company and were the subject of discriminatory practices under the provisions of Article L 422-6 of the Commercial Code, the Company BIOMERIEUX.
* ORDER accordingly BIOMERIEUX Company to pay Mr. Mark HESLEHURST:
* The sum of 477,238 euros as damages equal to lost profits suffered by Mr. Mark HESLEHURST for years 2000, 2001 and 2002.
* € 30,000 as additional damages for pain and suffering.
* ORDER BIOMERIEUX Company also to pay the Company FRANÇAIS CONSULTANTS:
* The sum of 129,610 euros as damages for the injury suffered because of the shortfall for the financial year 2003.
* ORDER BIOMERIEUX Company also to pay each the sum of € 8,000 on the basis of Article 700 of the New Code of Civil Procedure.
* ORDER BIOMERIEUX all the costs of trial and appeal entertainment for the benefit of CPA Junillon & WICKY, confessed on his claim of right.
Case: FRANÇAIS CONSULTANTS / BIOMERIEUX BY: CABINET Ratheau, Corporation Counsel represented by Mr Bernard UGHETTO lawyer, TOQUE N ° 666 In: CPC LAMY RIBEYRE (Master GENIN), lawyer Toque 656 1. Work Training Mr. Mark English HESLEHURST of September 7, 1999 2. Work Training Mr. Mark English HESLEHURST of September 14, 1999 3. Invoice No. 0057 Mr Mark HESLEHURST of June 28, 2000 4. Contract signed between the Company and Mr. Mark BIOMERIEUX HESLEHURST December 14, 2000 5. Training Agreement for English telephone January 24, 2002 6. Registered mail with acknowledgment of receipt of the Company to the Company BIOMERIEUX FRANÇAIS CONSULTANTS of May 31, 2001 7. Mr. Mark HESLEHURST mail to the Company's BIOMERIEUX July 16, 2001 8. Training agreement signed January 24, 2002 for English training 9. Training Agreement of 24 January 2002 for the Spanish team 10. Training Agreement of 24 January 2002 for the English training for the global customer service 11. Training Agreement of 24 January 2002 for intensive English in France 12. Training agreement for the German January 30, 2001 13. Training Agreement of 30 May 2002 for intensive English in France 14. Training Agreement of 8 July 2002 to the present English 15. Mr. Mark HESLEHURST mail to the Company's BIOMERIEUX February 8, 2002 16. Mr. Mark HESLEHURST mail to the Company's BIOMERIEUX February 13, 2002 17. Mr. Mark HESLEHURST mail to the Company's BIOMERIEUX February 15, 2002 18. E-mail to Maryse BOUCLET FRANÇAIS CONSULTANTS Company's February 20, 2002 19. Mr. Mark HESLEHURST mail to the Company BIOMERIEUX of March 15, 2002 20. E-Mail to the Company FRANÇAIS CONSULTANTS Maryse BOUCLET of April 8, 2002 21. Mr. Mark HESLEHURST mail to the Company's BIOMERIEUX May 7, 2002 22. E-mail to the Company FRANÇAIS CONSULTANTS Maryse BOUCLET 27 May 2002 (11 h 47) 23. E-mail to the Company FRANÇAIS CONSULTANTS Maryse BOUCLET 27 May 2002 (13 h 56) 24. E-mail to the Company FRANÇAIS CONSULTANTS Maryse BOUCLET 28 May 2002 (10 h 00) 25. E-mail to the Company FRANÇAIS CONSULTANTS Maryse BOUCLET 28 May 2002 (10 h 59)
26. E-mail to the Company FRANÇAIS CONSULTANTS Maryse BOUCLET 28 May 2002 (12 h 18) 27. E-mail the Company FRANÇAIS CONSULTANTS Michel SENAC of bioMérieux, 28 May 2002 (16 h 05) 28. Mr. Mark HESLEHURST mail to the Company BIOMERIEUX of June 19, 2002 29. E-mail to Maryse BOUCLET FRANÇAIS CONSULTANTS Company's June 6, 2002 30. E-mail to the Company FRANÇAIS CONSULTANTS Maryse BOUCLET of June 7, 2002 31. E-mail Maryse BOUCLET of the Company to the Company BIOMERIEUX FRANÇAIS CONSULTANTS of June 18, 2002 32. E-mail the Company at the Company FRANÇAIS CONSULTANTS BIOMERIEUX of July 4, 2002 33. E-mail the Company at the Company BIOMERIEUX FRANÇAIS CONSULTANTS of July 8, 2002 34. Mr. Mark HESLEHURST mail to the Company's BIOMERIEUX July 18, 2002 35. Mr. Mark HESLEHURST mail to the Company's BIOMERIEUX July 30, 2002 36. Mr. Mark HESLEHURST mail to the Company's BIOMERIEUX July 30, 2002 (2nd post) 37. Courier Corporation FRANÇAIS CONSULTANTS BIOMERIEUX to the Company's July 30, 2000 (3rd post) 38. Courier Company to the Company BIOMERIEUX FRANÇAIS CONSULTANTS 1 August 2002 39. Contract to provide training courses in English and Spanish signed on 1 January 2003 between the Company FRANÇAIS CONSULTANTS current constitution and the Company BIOMERIEUX 40. Transfer agreement of joint activity December 13, 2002 41. Statutes FRANÇAIS CONSULTANTS SARL 42. E-mail to Mr. Mark HESLEHURST BIOMERIEUX Company's January 23, 2003 43. E-mail to Mr. Mark HESLEHURST BIOMERIEUX Company's January 27, 2003 44. Courier Master PERON BIOMERIEUX the Company's February 20, 2003 45. Courier Corporation BIOMERIEUX PERON to Master of February 28, 2003 46. Registered mail with acknowledgment of receipt of the Company to Mr Thierry BIOMERIEUX PERON of February 28, 2003 47. Registered mail with acknowledgment of receipt of the Company to the Company BIOMERIEUX FRANÇAIS CONSULTANTS of September 29, 2003 48. Courier Corporation FRANÇAIS CONSULTANTS BIOMERIEUX to the Company's October 15, 2003 49. E-mail the Company at the Company BIOMERIEUX FRANÇAIS CONSULTANTS, 29 October 2003 and Schedules 50. Registered mail with acknowledgment of receipt of the Company to the Company BIOMERIEUX FRANÇAIS CONSULTANTS of November 4, 2003 51. Courier Corporation BIOMERIEUX to Mr. Davis HOLMES CONSULTANTS FRANÇAIS Society of November 5, 2003 52. Courier Corporation BIOMERIEUX to Mr Mark HESLEHURST of November 5, 2003 53. Certificate of SCI race cover of the June 28, 2004 54. E-mail the Company at the Company FRANÇAIS CONSULTANTS BIOMERIEUX of January 29, 2003 55. E-mail the Company at the Company BIOMERIEUX FRANÇAIS CONSULTANTS of November 20, 2002 56. Courier Company to the Company BIOMERIEUX FRANÇAIS CONSULTANTS of
November 28, 2003 57. Invoice No. 02-02-01 dated 28 February 2001 (being German Christian BALT) 58. Invoice No. 02-02-01 dated 28 February 2001 corrected for supplies 59. Attendance record during the German 60. Invoice No. 0073 in July 2000 61. Invoice No. 01-03-01 March 2001 62. Invoice No. 123-01-02 January 2002 63. Rate Linguarama LYON BIOMERIEUX 2002 64. Training Project Ilingua of April 9, 2002 65. Work training presentation in English and intensive training 66. 01-04-01 invoice of April 28, 2001 67. 01-04-01 invoice of April 28, 2001 adjusted for the German tariff 68. 148-02-02 invoice of February 28, 2002 69. 178-02-02 invoice of March 28, 2002 70. Invoice 237-05-02 71. 260-06-02 invoice of June 28, 2002 72. 330-09-02 invoice of 28 September 2002 73. Invoice program 1 January 2002 74. Bill 01-03-01 March 2001 program 2 75. 34-10-01 invoice program 3 October 2001 76. Bill 01-01 January 2001 77. Invoice 0073 July 2000 78. 207-04-02 invoice of April 28, 2002 79. 23-02-03 invoice of February 28, 2003 80. Courier Corporation FRANÇAIS CONSULTANTS BIOMERIEUX to the Company's June 5, 2002 81. Courier Corporation of CONSULTANTS FRANÇAIS June 10, 2002 82. Review of operations April 11, May 11, June 15 and July 11, 2001 83. Training evaluation forms, 16 December 2002 Catherine Gaudin, PERRATON Nadine Gerard Baudino, Jean-Claude Raymond and Isabelle CARON 84. Certificate of Mr. David Holmes, 19 April 2004 and translation 85. Certificate of Mr. David Holmes of January 21, 2004 and translation 86. ROBERT Jacqueline Courier of December 18, 2003 87. Certificate of Madame Dominique HESLEHURST of April 2, 2004 88. Report of the Christian COPPENS July 25, 2000 89. Meeting Report September 18, 2002 the Company BIOMERIEUX 90. Rate BIOMERIEUX 2003 Linguarama LYON 91. Greeting Card Company's 2003 Mr. Mark BIOMERIEUX HESLEHURST 92. Card 2003, Mr. NOIZET to Mr Mark HESLEHURST 93. Letter from Mr David Holmes 94. Certificate of Nadine Bernier of February 4, 2003 95. Certificate of Mr. David Holmes of April 28, 2004 96. Group training program in English and Spanish N3 97. Certificate from Dr Ben Abdallah Fathi of February 17, 2003 98. Fiducial of EXPERTISE certificate January 23, 2004 99. List of teachers of the Company FRANÇAIS CONSULTANTS 100. Evaluation of financial loss made by the Company FIDUCIAL of June 29, 2004 101. ETUDLOC invoice to Mr HESLEHURST of February 23, 1999
102. Income Statement HESLEHURST MARK extract of fiscal 1999 and 1998 103. Certificate of Mr Blair's November 24, 2004 SHEPARD 104. CCI loan taken out by Mr. HESLEHURST January 7, 2000 105. Loan underwritten by BNP Paribas Mr. HESLEHURST June 26, 2000 106. Registered mail with return receipt to Mr. HESLEHURST BIOMERIEUX of March 20, 2003 107. Email to BIOMERIEUX FRANÇAIS CONSULTANTS of December 20, 2002 108. Courier FRANÇAIS CONSULTANTS to BIOMERIEUX sent in January 2003 109. Email to BIOMERIEUX FRANÇAIS CONSULTANTS of January 13, 2003 110. Certificate Insurer VUILLARD Paul Cabinet of 10 November 2004 111. Mr. Karim BOUAFID attestation of November 9, 2004 112. Certificate of CEFAM of November 18, 2004 113. Certificate of CEFAM 19 November 2004 in English and French 114. Income statement and balance sheet for fiscal 2001 to Mr. MARK HESLEHURST 115. Balance sheet at 31 December 2002 Mr HESLEHURST MARK 116. Certificate of Sir Mick, 16.11.2004 SATTERTHWAITE in English and free translation 117. Certificate of Madame Dominique HESLEHURST of October 3, 2004 118. Certificate of Jacqueline Roberts of December 18, 2003 119. Certificate of Mr. David Holmes of April 19, 2004 120. Listing of company employees FRANÇAIS CONSULTANTS 2002/2003 with distribution by the French regime or Applied English 121. Medical certificate from Mr Mark HESLEHURST December 1, 2004 122. Medical certificate for an extension of Mr. Mark HESLEHURST of December 7, 2004 123. File tax year ended December 31, 1999 by Mr. Mark HESLEHURST 124. Balance sheet assets of Mr Mark HESLEHURST liabilities at 31 December 2001 125. Accounting documents, tax and management of the LLC FRANÇAIS CONSULTANT at December 31, 2003 126. Certificate of Mr. David Holmes of November 15, 2006 127. Certificate of Madame HESLEHURST 2 September 2006 128. Dismissal letter sent by the Company to Mrs. Florence GIRARD BIOMERIEUX April 19, 2002 129. Satisfaction reports of April 2002 130. Satisfaction reports of May 2003 __________________________________________________________________ SLIP in duplicate, one to be returned signed. Lyon, Thursday, June 7, 2007
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