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In recent years, there have been three employment-related issues plaguing franchising—joint employer claims, misclassification claims, and antitrust claims arising out of anti-poaching clauses in franchise agreements. In an interesting twist, the recent reinstating of a purported class action complaint against Burger King Corporation relating to an anti-poaching clause was good for franchising.
While the result in this context means the antitrust complaint is reinstated against the franchisor (for the time-being), the opinion recognizes and relies on important points used in defense of claims of joint employer liability and misclassification. Read how the court opinion could be helpful to the positioning on joint employer and misclassification defenses.
About the Authors
Joyce Mazero, Franchise and Supply Network Chair
As Co-Chair of Polsinelli’s Global Franchise and Supply Network practice, Joyce Mazero specializes in representing national and global product and service-based companies leading them through major initiatives including structuring franchise and distribution networks, purchasing cooperatives and buying groups; negotiating strategic alliances, joint ventures, domestic and international licensing, franchising, manufacturing, retail and logistics deals; buying and selling franchise chains, food service providers and manufacturing plants, and litigating franchise, intellectual property and distribution disputes around the world. Managing supply chain risk and leveraging supply chains to maximize competitive advantage and, increase cash flow opportunities; managing risk in domestic and international franchise systems to enhance market expansion opportunities and foster sustainable value relationships among franchisors, franchisees and suppliers, in her capacity are critical focal points of Joyce’s practice.
She is the recipient of several leadership awards from the International Franchise Association, the Women’s Foodservice Forum and the Dallas Business Journal. A frequent national speaker and writer, Joyce recently co-authored Franchise Management for Dummies, a Dummies series publication released in April 2017, was an editorial legal advisor to Franchising for Dummies, was co-editor of the ABA Forum on Franchising’s Monograph on Financial Performance Representations, and is a Contributing Writer for American City Business Journals and Forbes.com.
Leonard (Len) MacPhee, Franchise and Supply Network Vice Chair
As the Co-Chair of Polsinelli’s Global Franchise and Supply Network practice, Len focuses on franchise, licensing, distribution, and supply chain matters. His litigation and dispute resolution practice includes serving as lead counsel in numerous state and federal courts and domestic and international mediation and arbitration proceedings. He regularly handles cases arising from termination and non-renewal, challenges to system practices, breach of contract, tort, and statutory claims, as well as claims protecting trademarks, trade secrets and trade dress and enforcing non-compete covenants. He also handles vicarious liability and joint employer claims. In addition, Mr. MacPhee analyzes and advises clients on significant franchise, licensing, distribution supply chain and matters on a pre-litigation basis and in connection with business strategies for the roll-out of products and diverse distribution methods and transitions and the wind-down of franchise and dealer network systems.
Polsinelli is an Am Law 100 firm with more than 950 attorneys in 23 offices nationwide. Recognized by legal research firm BTI Consulting as one of the top firms for excellent client service and client relationships, Polsinelli attorneys provide value through practical legal counsel infused with business insight and focus on health care, real estate, finance, technology, private equity, and corporate transactions.