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FAST Act Shrapnel: AB 1228 redefines the franchise relationship

The FAST Act is in limbo pending the outcome of a California ballot repeal initiative. Undaunted, the Legislature has excised key provisions of that Act and positioned them for separate enactment as AB 1228, introduced by...more

.POOF! There goes 500 years of jurisprudence. . .

One of the earliest reported cases challenging a non-compete clause was Mitchell v. Reynolds, 1 P. Wms. 181, 24 Eng. Rep. 347 (Q.B. 1711). The clause survived the challenge, and a vigorous jurisprudence delineating the...more

This New Year’s Eve say Auld Lang Syne to Old Franchise Questionnaires and Acknowledgements

This fall we posted about the North American Securities Administrators’ (NASAA) adoption of a Statement of Policy Regarding the Use of Franchise Questionnaires and Acknowledgments (the “SOP”). Technically, NASAA’s SOP...more

California’s Tectonic Plates Shift — Part III

And so we come to the ultimate affront to franchising. Responding to strong lobbying efforts by the Service Employees International Union (SIEU), the California legislature passed the Fast Food Accountability and Standards...more

California’s Tectonic Plates Shift — Part II

Signed into law on September 18, 2019 by Governor Gavin Newsom, Assembly Bill 5 (commonly known as AB-5), took effect on January 1, 2020. AB-5 codified the California Supreme Court’s June 2018 decision in Dynamex Operations...more

California’s Tectonic Plates Shift — Part I

“California’s falling into the ocean!” Growing up in Southern California I heard that every time we had an earthquake. Usually, though, all I had to do was stand in a door jamb and wait until the shaking stopped (now not the...more

Want Some Antitrust with your Burger?

Eleventh Circuit’s Burger King opinion raises antitrust risks in franchising- Sherman Act challenges to “no-poach” clauses in franchise agreements have been languishing in federal courts for a few years now, but with...more

Franchisors: We Offer The Following Prescription for Your Consideration

Recently we discussed the headwinds that remain for the franchise community as a result of policy changes coming from Washington and the various state capitols. What should franchisors consider as they swim in this sea of...more

Franchise Industry Calamity Averted, For Now

In recent blogs, we identified serious threats to the franchise industry – the Protect the Right to Organize (“PRO”) Act, joint employer standards, state ABC laws, and the new Biden Administration guard at the Department of...more

Franchising Threat No. 4: The Deus Ex Machina (A Biden Executive Order)

While the Protect the Right to Organize (PRO) Act was passed by the House of Representatives, it has not been made part of the Biden administration’s infrastructure efforts thus far and does not appear have sufficient support...more

Franchising Threat No. 3: Other State Legislation And Policies

The California version of the ABC test is arguably the most hostile to franchising. Nonetheless, the risk is not confined to California. This is because the ABC employee classification test, with variations, has been...more

Franchising Threat No. 2: Joint Employment Is BACK!

The second troublesome threat is the joint employment standard. The Obama Adminstration DOL caused angst in the franchise industry in January 2016, when it adopted a joint employment standard that focused on “whether the...more

Legal Threats To The Franchise Industry: Is This The Apocalypse? (Part 1)

Omens of the Apocalypse for the franchise industry are everywhere: •The pending Protect the Right to Organize (PRO) Act; •The return of David Weill, author of Fissured Employment and chief architect of the Obama era...more

Franchising Threat No. 1: The PRO Act

The PRO Act would do serious, and perhaps mortal, damage to the franchise industry. It would make sweeping changes to the National Labor Relations Act (NLRA), the Labor Management Relations Act (LMRA), and the Labor...more

WHIPLASH! A Stunningly Fast Reversal Of Labor Policies

It was predictable – even inevitable – that the Biden administration would reverse much of Trump’s labor oeuvre. But no one could have predicted how quickly! In a little more than a month, the administration has:...more

Legislation Repeals Federal Antitrust Immunity For The Health Insurance Business

Seven decades of antitrust immunity for the health insurance industry has just ended. That startling but not unexpected action should prompt insurers, health care providers and suppliers to carefully assess the competitive...more

A COVID Bonus For Trademark Owners: Presumptive Injunctive Relief And Sweeping Away Old Marks

Buried deep in the roughly 5,500 pages of the most recent COVID relief legislation are two unexpected gifts for trademark owners, courtesy of A little something called the Trademark Modernization Act:...more

Unintended Consequences? The Employment Battle Threatens Franchising

The one-two punch of state and federal employment standards activity poses an existential threat to franchising; many commentators, including this one, have acknowledged that fact. But why? Did the California legislature or...more

Franchising On The Precipice: Unknowns In Transition

Change is coming, but will it be a welcome change or a harbinger of woe? Over the last 8 years or so, the ever-changing landscape of employment laws has arguably posed an existential threat to franchising. The franchise...more

Joint Employment In Chaos: DOL Joint Employment Rule Invalidated

Hot on the heels of disappointing AB-5 news from California, a federal district court in Manhattan delivered a stinging rebuke to the Department of Labor (“DOL”), invalidating the control-based joint employment rule issued by...more

No Joy For Franchising in CA: AB-5 Exemption Rejected

As if COVID, wildfires, and heat weren’t enough, California franchisors and franchisees suffered another gut punch when the legislature rejected a proposed franchise exemption to AB-5. When AB-5 was enacted in 2019, to the...more

Are COVID Immunity Laws Good For Franchising? (Part 2: The Counterpoint)

My vote is YES! In fact, I think they are essential! I thus respectfully disagree with my partner and colleague John Gotaskie. John appropriately focuses on three stakeholders in discussing immunity legislation: business...more

HEROES + HEALS =?????: COVID Relief 3.0 Is A Mystery

This is like watching sausage being made – it isn’t pretty. The House passed its $3 Trillion COVID rescue package (the HEROES Act) about a month ago. But the Senate’s HEALS Act is still a work in progress with an...more

A Summer Potpourri (Part 2): States Litigate Joint Employer Rule And NASAA speaks

In Part 1 of this series, we discussed the recent actions taken by Congress regarding the PPP program as well as the efforts by the Fed. In today’s post, we dig deeper into the challenge by state Attorneys General to the...more

A Summer Potpourri (Part 1): Congress Legislates And The Fed Weighs In

Amidst the continuing pandemic, summer brings faint hope that someday things might return to business as usual. For the franchise industry, recent events offer a hint of normality. In Part 1 of this early summer round-up, we...more

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