Visit the Sage

Commerce Bank Steals* $250,000 From One Small Business

Whenever bullies rise up, it is our responsibility to beat them back, no matter the cost.

The Bully: Commerce Bank

On the Commerce website page dedicated to small business, they say:

"At Commerce, we understand your business is personal. It’s your livelihood and your family’s future. We offer a wide array of accounts and services designed to help you do business in a way that is simple for you."

Evidently, one of those services is to blatantly violate U.S. copyright laws -- effectively stealing the work product of a seven-person company they claim to understand and using it at 200 branches without paying the "per location" fee stated in the contract they signed.

That represents a one quarter million dollar theft from one of the small businesses Commerce Bank pretends to support.

The Victim: Business Audio Plus

BAP is a small company located in St. Louis. They provide on-hold advertising -- those advertising messages you hear when you're put on hold. Their services include the writing of the marketing messages, recording those messages with professional voice talent and supplying the equipment that delivers the messages.

Note: Their contract DOES NOT transfer the copyright to Commerce.

The Story

About 11 years ago, Commerce Bank contracted with Business Audio to provide on-hold advertising at a small number of its branches -- according to the suit it looks like eight. Part of Business Audio's service is to call into the branches and do quality checks -- making sure the audio is working properly.

During one such audio check, Business Audio found that Commerce was not only using the on-hold advertising at the designated eight locations, but was using it at between 1 and 13 additional branches as well (again, the numbers are based on what's in the suit).

At that time, BAP notified Commerce's marketing and IT departments of the violation, sent an invoice for the additional branches it had identified, and incorporated those branches into the on-going contract.

Commerce paid that invoice. (This is a critical fact, because it clearly shows Commerce is aware of and agrees to the per-location requirement. Why else would they have paid the invoice for the branches where they were using the service without permission?)

Fast forward to a few months ago. Someone at Business Audio found out Commerce was, once again, using their on-hold at a non-authorized location. So they acquired a list of every branch and started dialing.

By the time they were done with their first day of dialing, BAP identified an additional 200 Commerce locations that were playing the on-hold advertising in clear violation of their contract and copyright law.

Then on the second day of dialing to find additional violations, BAP was interrupted. It seems the head of the IT department -- the woman who actually built an internal audio delivery system, copied BAP's audio files and distributed the service across Commerce Bank's branches -- had learned of BAP's attempt to identify every branch using it, and had given orders along the lines of "If anyone asks to be put on hold, tell them 'No' and transfer them to me."

Finally -- and this only proves the extent of the woman's stupidity -- she admitted copying the files and using them on non-authorized branches. Then told BAP she had no intention of paying the invoice.

Fortunately for BAP, they record every single telephone call they make or receive. So not only do they have proof of use from all 200 locations that are in violation, they have the IT woman's own admission on tape as well.

Enter The Executives And Lawyers

Up to this point, this really isn't a Commerce Bank story. It's more a story of a rogue IT department head's blatant abuse of power and her stupidity when caught. So you would think that once Commerce's legal department and executive team heard about the story they'd have the good sense to check out the claim, can the woman who "stole" from one of their small-business vendors and pay the damned invoice.

You would, however, be wrong.

The official position of the Commerce Bank's legal minds seems to be "The contract is ambiguous."

Yeah. There's an intelligent response from a team that clams to "... understand your business is personal. It’s your livelihood and your family’s future."

Besides, there is nothing whatsoever ambiguous about copyright law. And considering the number of trademarks Commerce owns -- ya think they'd understand the realm of copyright and trademark law.

The Suit

The case number is: 09SL-CC03010.You can search the Missouri Courts site -- https://www.courts.mo.gov/casenet/base/welcome.do -- using that number to find the case. Although since it was filed only yesterday, not all documents are available.

I do, however, have a PDF of the filing. So if you want to read the actual case, enjoy: Download Suit

One Man's Opinion

I am clearly not a legal genius. So I don't really know the nuances of the law, nor the technical nature of the actual contract signed between Commerce and BAP. But it doesn't take a legal scholar to understand the spirit of the agreement between these two companies, and to clearly see both parties understood that spirit.

Simply put, it is brain-dead stupid for Commerce to fight this fight. They should have recognized the rogue behavior of one woman, apologized to BAP and paid the damned bill.

Instead, they've turned their pit bulls loose on one of the small businesses they claim to befriend.

When will company executives learn they can no longer bully the little guy? When individuals like us team up and beat them back with the social media stick.

I hope you'll join me by Tweeting this story, commenting on Commerce's actions, etc., because every voice strengthens the size of our stick.

Gill E. Wagner, Sage of Selling
President of Honest Selling
Founder of the Yellow-Tie International Business Development Association

* This is my interpretation and personal opinion of their actions, not a fact, legal opinion or stance by Business Audio Plus.

Lessons From Dad: Mistakes

"It's not whether you make a mistake that counts," Dad always said. "The true measure of a man is how you handle the mistake once you realize you've made it."

In my post titled "Taking On Bad Buyers," I wrote about the actions of Mike Mullin, the Director of PR and Media Relations at Smurfit-Stone -- how he hired my wife to improve the image of Smurfit's corporate officers in preparation for bankruptcy, knowing full well her invoice would not get paid before the Chapter 11 was filed.

Yesterday, Cindy received some legalese from Smurfit-Stone about pre-petition claims. The plain English version basically says, "If you'll agree to continue to do business with Smurfit-Stone, we'll pay you everything we owe you within five days."

I have no proof the post I wrote, or the assistance I received from people who read and forwarded it, had anything whatsoever to do with Smurfit agreeing to pay Cindy in full. But I do know that at least four of the corporate officers whose bios were copyedited were informed of my post -- and actually took the time to read it.

And I do know that when Cindy spoke to the Smurfit representative who is handling pre-petition claims, he was said, "I can't believe you're being offered the full payment. Everyone else is getting offers of 30 percent."

But just because I don't know what actually happened, that doesn't mean I can't choose to believe the best.

Therefore, I choose to believe that at least one of the corporate officers at Smurfit-Stone read my post, said some form of "this is crap" and decided to do the right thing.

Whoever you are, you've earned this man's respect.

Gill E. Wagner, Sage of Selling
President of Honest Selling
Founder of the Yellow-Tie International Business Development Association

First Salespeople, Then Buyers, Now Managers

One of the interesting things about running a company that advocates absolute honesty in sales is people who have been wronged reach out to me and let me know.

I always take things with a grain of salt -- there are two sides to every story, after all -- but when patterns emerge I take notice.

There is a bad-behavior pattern emerging in sales management these days, and I'd like to give the honest salespeople of the world a heads-up.

More and more I'm hearing about managers who are:

• Changing their salespeople's compensation plans immediately before lucrative deals close. If your sales manager suddenly takes an intrusive interest in the status of your biggest deals -- meaning he or she never paid that close attention in the past -- consider it a possible red flag. Especially if he or she starts talking about commission changes after learning that good deals are about to finalize.
• Making changes to compensation plans retroactive -- all the business you previously closed now pays less in commission -- but avoiding that fact during conversation and hiding it in the fine print of employee agreements.
• Attempting to have their cake and eat it too by using one set of compensation rules for deals that closed and have already been collected, one set for deals that closed but have yet to be collected and one set for deals that will close in the future.
• Stealing prospects from salespeople without their knowledge and closing those deals themselves.
• Cutting base pay -- as much as in half -- without a requisite increase in commission or decrease in administration-type task requirements.

What astounds me is how otherwise honest and ethical people can rationalize their way out of this behavior. I've actually heard some of these stories from managers themselves -- and the "rational lies" they use to justify it.

And, by the way, this behavior extends to business owners who pay 1099 (non-employee) salespeople as well. Although in this case the power often lies with the salespeople rather than the owners -- of course the owners usually learn this the hard way. (Trust me, the last thing you want is your 1099 salesperson who knows all your failings taking your prospects to your competition, because pissed-off salespeople are some of the most passionate sellers alive, and passion combined with knowledge of your weakness is an unstoppable force.)

So my advice to you is this. If your manager starts talking change, turn on your radar for nuances that may indicate less-than-honorable intentions. He or she may be totally above board, or you could be getting set up for a shafting.

And never agree to any changes without a detailed description of how all deals -- past, closed-but-not-collected and future -- will be affected. Plus, have a good attorney look over anything before you sign it.

The income you save could be your own.

Gill E. Wagner, Sage of Selling
President of Honest Selling
Founder of the Yellow-Tie International Business Development Association

Taking On Bad Buyers

I write about salesdrip behavior all the time -- some say too much. But my mission is to bring honesty back to the sales profession, and exposing the bad behavior so people can avoid being manipulated by it is a key component of that effort.

Today, however, I'm giving the salesdrips of the world a break and taking on the buyers instead. After all, when you track the creation of manipulative tactics in sales, much of the manipulation can be linked to bad buyer behavior.

The Sandler Sales Institute's entire selling system, for example, is based on David Sandler's experiences of being lied to by prospects. In fact, the first thing in his book that he felt was important enough to put in bold print is the numbered statement: "1. The prospect lies to you." Unfortunately, Sandler took a "win the war" approach to resolving the problem, which is why the system he created is so manipulative -- and why he advises that salespeople "get over their negative view of the word manipulation" to be successful.

But today, I'm writing an opinion piece on what I believe is horrid buying behavior, not bad selling behavior. And this particular instance is close to home, because it involves a billion-dollar company screwing over a one-person company, and that one person just happens to be my wife.

Two things you should know about me before I continue:

• There is nothing that makes my blood boil faster than a bully.
• Except when someone messes with my wife.

Let's get down to the facts:

On January 26, 2009, Smurfit-Stone (the entire company including all its business units worldwide) filled for Chapter 11 bankruptcy. Any unpaid invoice was, from that moment, included in the proceeding. And according to what I read about federal bankruptcy law, creditors are severely limited as to what they can attempt to do to collect. Thank goodness Editing Ink (Cindy's company) is a sole proprietorship and my name is not to be found anywhere on it. So while her hands are tied (I'm not even asking her to copyedit this post), there is nothing whatsoever to keep me from voicing my opinion on the matter.

What is interesting about the January 26 filing date is that on December 2, 2008, (exactly 55 days earlier) Mike Mullin, Director of Media Relations  & Public Affairs at Smurfit-Stone Container Corporation in Creve Coeur, Mo., authorized Cindy to copyedit the online biographies of the company's 27 top corporate officers.

And the twist that makes this a story about dishonest buying is that Smurfit-Stone is well-known for having a 66-day net invoice requirement. (All vendors know they will not get paid for 66 days from date of invoice.)

A first-grader could do the math and see that Mullin hired my wife to improve the image of his company's entire corporate officer team in preparation for bankruptcy, while knowing full well her invoice would not get paid before that very bankruptcy was filed.

But even that isn't the whole story.

In November of 2008, two different Smurfit-Stone employees -- one of whom answers directly to Mullin -- hired Cindy to copyedit the company's Investor Fact Book and it's corporate newsletter. And while those invoices were due prior to the January 26 filing, both payments were delayed and the invoices were thereby incorporated into the Chapter 11.

And as if that wasn't enough, Cindy was informed via an e-mail from a Smurfit-Stone employee that her invoices totaling $1,788.75 were the smallest in the entire list, and she should therefore stop complaining about it.

1. Did Mullin make a bad-faith purchase during preparation for bankruptcy?
2. Was there a conspiracy to defraud vendors perpetrated by the communications department at Smurfit-Stone?
3. Did the accounting department purposely withhold payment of over-due invoices specifically to move even the smallest of debts into the Chapter 11 proceedings?
4. Did Smurfit-Stone violate federal guidelines for filing Chapter 11?

When will corporate officers at billion-dollar companies stop screwing the little guy?

While only Smurfit-Stone and the federal government can answer the first four questions, I can answer the last.

Corporate officers will stop screwing the little guy when the little guys of the world ban together and make it more advantageous for them to be honest than dishonest.

Will you join me in my fight with the Smurfit-Stone Goliath?

• If you're on Twitter, Facebook, LinkedIn or any other social media sites, please voice your opinion openly.
• If you blog, feel free to post your own thoughts and reference this article.
• If you know of a business reporter for a newspaper or TV show, please download and forward this press release on our behalf.
• If you care to voice your opinion to Mike Mullin directly, feel free to e-mail him yourself. 
• If you know one of these 27 corporate officers whose professional images Cindy improved, contact him or her and speak up (they may not be aware of Mike's actions yet):
• • Patrick J. Moore, Chairman of the Board and Chief Executive Officer
  • Steven J. Klinger, President and Chief Operating Officer
  • Paul K. Kaufmann, Senior Vice President and Corporate Controller
  • Douglas M. Keim, Vice President of Innovation and Chief Marketing Officer
  • Matthew J. Blanchard, Senior Vice President and General Manager of Board Sales
  • Joseph V. LeBlanc, Vice President of Research and Development
  • John Haudrich (LinkedIn), Vice President of Investor Relations
  • Steven C. Strickland, Senior Vice President of Sales, Container Division
  • John L. Knudsen (LinkedIn), Senior Vice President of Manufacturing, Container Division
  • Paul W. McCann, Vice President and General Manager of Asia
  • Regina G. Wyse, Vice President and Controller, Container Division
  • Charles A Hinrich, Senior Vice President and Chief Financial Officer
  • Edmund L. Quatmann, Vice President of Internal Audit
  • Ronald J. Megna, Assistant General Counsel and Assistant Secretary
  • Nina E. Butler, Vice President of Environmental Affairs
  • Susan M. Neumann, Senior Vice President of Corporate Communications and Public Affairs
  • Mark R. O'Bryan (LinkedIn), Senior Vice President of Strategic Initiatives and Chief Information Officer
  • Mack C. Jackson, Senior Vice President and General Manager, Mill Division
  • Craig A. Hunt, Senior Vice President, General Counsel and Secretary
  • Ronald D. Hackney, Senior Vice President of Human Resources
  • Matt Denton, Vice President of Business Planning and Analysis
  • James S. Chou, Vice President and Controller, Mill Division
  • Christopher J. Brescia, Vice President of Government Affairs
  • Peter F. Burke (LinkedIn), Vice President of Global Logistics
  • Michael R. Oswald, Senior Vice President and General Manager, Recycling Division
  • David P. Harrison, Vice President of Strategic Sourcing

The executives that run major corporations will never stop this behavior until it stops working. We can make that happen starting today.

Gill E. Wagner, Sage of Selling
President of Honest Selling
Founder of the Yellow-Tie International Business Development Association