Franchise Civil Procedure

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Sign O’ The Times: SCOTUS Denies Cert In Franchise Arbitration Dispute

On Monday of this week, after stringing the parties along for five months, SCOTUS denied cert in a case involving the intersection between arbitration and franchise regulation. The petition was filed in November of 2015,...more

Ninth Circuit: Arbitration Provision Contained In Sham Agreement Is Not Enforceable

The Ninth Circuit reversed a district court ruling that had compelled arbitration, holding that a party may not enforce an arbitration agreement where the clause is contained in a nonbinding contract. The parties had entered...more

What’s on the Horizon for U.S. Employers in 2016?

While the upcoming U.S. Presidential election and on-going Congressional gridlock make it unlikely any new federal employment laws will be enacted in the U.S. in 2016, employers can expect federal agencies to continue their...more

Employment Practices Newsletter - April 2016

Is Labor Law Putting the Franchise Business Model at Risk? - Over the course of the last year, we have kept you abreast of National Labor Relations Board (NLRB) case law and Department of Labor (DOL) interpretive/...more

Spotlight on Tennessee: Forced Franchise/Excise Tax Variance Upheld by Supreme Court

On March 23, 2016, the Tennessee Supreme Court issued its much-awaited decision in the case of Vodafone Americas Holdings, Inc. et al. vs. Tennessee Commissioner of Revenue....more

Franchisee Can’t Work Its Way Out of Trademark Infringement and Breach of Contract Litigation on Jurisdictional Grounds

An out-of-state franchisee sought to escape the reach of the Massachusetts District Court in a breach of contract and trademark infringement litigation filed by its Massachusetts-based franchisor. But, the parties quickly...more

FRANCHISEE 101: Purposes and Limits of Non-Compete Clauses

Many franchise agreements have "non-compete clauses", which state that after termination or expiration of the franchise agreement, the ex-franchisee may not operate a business that is similar to or that would compete with the...more

Arbitration Provision Rejected in Franchise Dispute

In Case Del Caffe Vergnano SPA v. ItalFlavors, LLC, the Ninth Circuit held that the court, not an arbitration tribunal, could review a franchise contract and determine it was a sham, based upon a second contract signed...more

Ohio Court of Appeals Upholds a Successor Manufacturer’s Termination of a Distribution Franchise

The “successorship” provision of Ohio’s franchise law for alcohol beverages has spawned much litigation over the past two decades. Premium Beverage Supply, Ltd. v. TBK Production Works, Inc. represents the latest chapter of...more

FRANCHISOR 101: The Importance of Arbitration Provisions

Though some of the more important terms may appear early in a franchise agreement, some key terms placed near the end - the portion of the agreement that is often called "boilerplate" - may determine who wins or loses a legal...more

FRANCHISEE 101: Relying on Franchisor’s Profit Projections

Most experienced franchisors know better than to make claims about profits franchisees can expect when those claims do not match the information in the franchisor's Franchise Disclosure Document. However, if a franchisor or...more

Can a Guarantor Waive his Right to a Foreclosure Confirmation Proceeding in Georgia?

Yes. On Monday, February 22, 2015, in a case closely watched by commercial real estate lenders, borrowers and guarantors, the Supreme Court of Georgia issued its opinion in PNC Bank, N.A. v. Smith, et al., S15Q1445. ...more

Rulings Pose Obstacles to Franchisors Seeking to Stop Wrongful Trademark Use

A series of recent Circuit Court decisions has made it more difficult for a franchisor to enjoin a former franchisee from using the franchisor’s federally registered trademarks after the franchise agreement has been...more

FranCast: Good news for franchisors: Ontario Court of Appeal dismisses Pet Valu class action

The recent Ontario Court of Appeal decision in 1250264 Ontario Inc. v Pet Valu Canada Inc.1 is good news for both Pet Valu Canada Inc. and Ontario franchisors....more

Joint Employment Challenges Continue in 2016

The legal concept of “joint employment” exists when a person is employed by two or more entities, such that the employers are responsible, individually and jointly, to the employee for compliance with a particular statute or...more

Adventures in Joint Employment: the Browning-Ferris Saga Continues with an Appeal to the D.C. Circuit Court of Appeals

Last week, Browning-Ferris Industries, the California-based waste management company, appealed two decisions issued by the National Labor Relations Board related to the definition of joint employer. Its appeal to the U.S....more

U.S. Department of Labor Expansively Defines Joint Employment Under FLSA

On January 20, 2016, the U.S. Department of Labor’s Wage & Hour Division (WHD) issued another Administrator’s Interpretation (the AI or “Guidance”) that it hopes will have a far-ranging impact on how employers do business...more

S.D.N.Y Dismisses Former Employee’s SOX and Dodd-Frank Whistleblower Claims

The U.S. District Court for the Southern District of New York recently granted a motion for summary judgment dismissing a plaintiff’s SOX and Dodd-Frank whistleblower claims. The court ruled that the plaintiff failed to...more

FRANCHISEE 101: Pay Attention to Contractual Statutes of Limitation

Many franchise agreements include a contractual limitation period or time limit when parties can bring a claim for relief. Though the franchise agreement is often written by and for the franchisor, these limitations can help...more

Second Circuit Overturns Fraud Convictions in United States v. Litvak

The Second Circuit found no proof of material misrepresentations as to some charges, and held that expert testimony was improperly excluded as to others. On December 8, the US Court of Appeals for the Second Circuit...more

Professor Coffee and Judge Rakoff Comment on Securities Class Actions

Since its inception, the concept of class action litigation – in a securities context or otherwise – has been met with arguments for and against it. To be sure, a class action suit is often the only way to properly...more

NLRB Discusses Joint Employment for the First Time Since Browning-Ferris

The National Labor Relations Board, in one of its first applications of the Browning-Ferris decision, gave hope to non-union contracting entities engaged in franchising and subcontracting relationships. After an extensive...more

The Contours of a Franchisor’s Vicarious Liability

In a ruling that reflects a clear understanding of the distinction between the roles of the franchisor and franchisee, the Appeals Court of Massachusetts recently held that Domino’s was not vicariously liable for the acts of...more

October 2015: Securities & Structured Finance Litigation Update

Renewed Potency for Personal Jurisdiction Defenses in the United States. Personal jurisdiction may be an afterthought for many lawyers. But recent developments—including an August 4, 2015 decision in the ongoing LIBOR...more

Second Circuit Upholds New York Ban on Credit Card Surcharges

Why it matters - New York’s ban on credit card sales transactions surcharges was upheld by the Second Circuit Court of Appeals, reversing a federal court judge’s 2013 ruling striking down the law and joining the majority...more

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