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Dispute Resolution Keyed to Stone, 4th Ed.
Advanced Bodycare Solutions v. Thione International
Citation:
524 F.3d 1235 (2008)Facts
Advanced Bodycare Solutions and Thione International entered into a licensing agreement granting Advanced Bodycare exclusive rights to market and distribute Thione’s nutritional supplements and testing kits. Advanced Bodycare ordered and paid for products that were delivered in September and December 2004. Advanced Bodycare discovered many of the testing kits were defective and raised the issue with Thione. Thione eventually acknowledged a manufacturing defect and shipped replacement units in October 2005, but not enough to replace all defective kits. The licensing agreement contained a dispute resolution clause requiring parties to first attempt negotiation within thirty days, then hold a meeting with chief executives within sixty days, and if unsuccessful, submit the dispute to non-binding arbitration or mediation with a mutually agreed upon independent arbitrator or mediator in Atlanta, Georgia. The clause specified that if no resolution was reached through arbitration or mediation, either party could institute legal action in court with all rights and remedies preserved. Advanced Bodycare filed suit in Florida state court in December 2006 without first seeking arbitration or mediation.
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