2019 Judicial Update

Total Page:16

File Type:pdf, Size:1020Kb

2019 Judicial Update International Franchise Association 52nd Annual Legal Symposium May 5-7, 2019 Washington, DC 2019 Judicial Update Michael D. Joblove Andra J. Terrell Genovese Joblove & Battista Church’s Chicken/Texas Chicken Miami, Florida Atlanta, Georgia Mark T. Clouatre Meredith M. Barnes Nelson Mullins Focus Brands Denver, Colorado Atlanta, Georgia Jennifer L. Maffett-Nickelman Thompson Hine LLP Dayton, Ohio Robert M. Einhorn Zarco Einhorn Salkowski & Brito, P.A. Miami, Florida Deborah S. Coldwell Haynes and Boone, LLP Dallas, Texas Keri Williams Nixon Peabody LLP Washington, DC Table of Contents Additional State Law Issues .............................................................................................. 3 Mark T. Clouatre, Nelson Mullins No-Poaching Provisions in Franchise Agreement Under Fire from Private Class Action Plaintiffs and Government Enforcement Actions ....................... 9 Jennifer L. Maffett-Nickelman, Thompson Hine LLP Joint Employer Liability in the Franchisor-Franchisee Context .................................. 28 Robert M. Einhorn, Zarco Einhorn Salkowski & Brito, P.A. Encroachment .................................................................................................................. 37 Deborah S. Coldwell, Haynes and Boone, LLP Selected Termination and Bankruptcy Cases ............................................................... 63 Keri McWilliams, Nixon Peabody LLP Disclosure Violations ....................................................................................................... 75 Andra J. Terrell, Church’s Chicken/Texas Chicken Transfers ........................................................................................................................... 99 Meredith M. Barnes, Focus Brands International Franchise Association 52nd Annual Legal Symposium May 5-7, 2019 Washington, DC 2019 Judicial Update Additional State Law Issues Mark T. Clouatre Nelson Mullins Denver, Colorado 3 Introduction In the past year, franchisees have pursued various tort theories for recovery and relief against franchisors in traditional franchise lawsuits pertaining to terminations, establishments/encroachments, and relocations. This section highlights a few of those cases, several of which are from the automotive industry. To narrow the scope of this section and to focus on the state law claims which have universal, franchise-wide application, analyses of alleged violations of state statutes have been excluded. Caselaw Evaluation 1. Mercedes-Benz USA, LLC et al. v. Carduco, Inc. d/b/a Cardenas Metroplex, No. 16-0644, 2019 WL 847845 (Tex. 2018). In this case, the Texas Supreme Court considered reasonable reliance in light of a dealer agreement and also the fiduciary responsibilities, if any, that arise in a franchisor and franchisee relationship. Plaintiff/Respondent’s former owner, Rene Cardenes (“Rene”), owned and operated the Autoplex Mercedes-Benz dealership in Harlingen, Texas. Id. at 1. Defendant/Petitioner, Mercedes-Benz (“Defendant”), became dissatisfied with Rene’s dealership because it was outdated and had overall poor performance. Id. In discussing the possible termination of Rene’s dealer agreement, Defendant urged Rene “to invest in a modern ‘Autohaus’ dealership facility and showed [Rene] studies indicating that the optimal location for this facility would be near McAllen,” a town 20 miles to the west of Harlingen Id. Rene discussed relocating the dealership to McAllen with Defendant, and suggested that he would hire his father’s construction company to build the new dealership. Id. The parties never agreed on a site or plan for the relocation because Rene refused to sign an agreement to set a deadline for relocation. Id. After Rene’s dealership failed to improve its performance and Rene pled guilty to felony charges for failing to report a transaction, Defendant moved to terminate the dealer agreement. Id. In an attempt to avoid termination, Rene entered into an Asset Purchase Agreement (the “APA”) with his father for the dealership’s assets.1 Id. The APA stated Plaintiff was “only purchasing the right to conduct a Mercedes-Benz retail sales dealership at Purchaser’s present location in Harlingen, Cameron County, Texas.” Id. at *2. In addition, when Plaintiff submitted the APA and application to become a dealer to Defendant, the cover letter stated Plaintiff would “operate the franchise at its current location in Harlingen.” Id. At the same time, Defendant was negotiating with an existing, successful Mercedes-Benz dealer from another Texas city about opening a location in McAllen; Plaintiff was not aware, nor did Defendant make Plaintiff aware, of these communications. Id. Because Defendant practically had no choice under state law but to approve the APA, Defendant continued to negotiate and work with Plaintiff regarding an update to 1 The Plaintiff/Respondent is the result of Rene’s father buying the dealership from Rene, which is hereinafter referred to as “Plaintiff.” 4 Plaintiff’s facility in Harlingen. Id. Plaintiff met with two of Defendant’s representatives to survey the dealership’s condition and discuss what improvements needed to be made. Id. During the meeting, Plaintiff mentioned moving the dealership to McAllen, and Defendants’ representatives told Plaintiff it could submit two proposed facility plans: one for the Harlingen location and one for the McAllen location. Id. Plaintiff only submitted plans for a Harlingen location. Id. Several months later, Defendant’s representative met with Plaintiff and Rene, and Rene’s father asked the representative to accompany Rene to McAllen to look at two possible sites for future dealerships. Id. After observing the sites, Defendant’s representative stated the locations looked viable “but that any application to relocate would have to go through . the regional franchise manager,” as Defendant’s written approval was required prior to any relocation. Id. Plaintiff never submitted an application to relocate to McAllen. Two months after the acceptance of the APA, Plaintiff executed a dealer agreement (the “Agreement”) with Defendant. Id. The Agreement, in relevant part, identified Harlingen as the only authorized location for the dealership; prohibited Plaintiff from relocating the dealership without Defendant’s written consent; and permitted Defendant to add dealers into Plaintiff’s market area at its discretion. Id. A couple months later, Defendant announced that a new dealership would be opening near McAllen with another dealer, which prompted Plaintiff to finally submit a formal application to relocate to McAllen. Id. at *3. Defendant denied Plaintiff’s request. Id. Plaintiff subsequently filed suit against Defendant and its representatives, personally, stating they “fraudulently induced [Plaintiff] to believe that its bargain with [Defendant] included the opportunity to relocate to McAllen as the exclusive Mercedes- Benz dealership in the region.” Id. Plaintiff also asserted a breach of fiduciary duty claim. The jury found for Plaintiff, and awarded $15.3 million in actual damages and $115 million in punitive damages against Defendant and three of its representatives. Id. Defendant appealed to the Texas Court of Appeals, which affirmed the jury’s verdict and award generally.2 Id. Both parties then appealed to the Texas Supreme Court. Id. The Texas Supreme Court reversed and rendered a take nothing judgment against Plaintiff. Id. at *9. First, the Court found Plaintiff’s fraudulent inducement claim failed because Plaintiff could not have justifiably relied on Defendant’s representations that Plaintiff “could relocate to McAllen, Texas as the exclusive new Mercedes-Benz dealership in the region and that [Defendant] was not planning to put another dealer in the McAllen Area.” Id. at *3. The Agreement’s terms directly contradicted these representations. Id. at *5. 2 The Court of Appeals “suggested a remittitur of the punitive damages award [from $115 million] to $600,000”. Id. 5 The Court further found Plaintiff should have done more to protect its interests and insisted on terms in the Agreement for exclusive dealership rights in or near McAllen. Id. at *6. Because Plaintiff failed to do so, its reliance on Defendant’s conduct, statements and actions was unjustified as a matter of law. Id. at *9. “[T]he parties’ relationship and sophistication required greater diligence than the execution of a written contract that directly contradicted [Plaintiff’s] assumed bargain and assertion of fraudulent inducement.” Id. In addition, the Court made an important holding relative to whether a special, or fiduciary, relationship exists between a franchisor and franchisee. Id. The Court stated: “[a]s a general rule, a failure to disclose information does not constitute fraud unless there is a duty to disclose the information.” Id. at *8 (citation omitted). The Court went one step further and stated, generally, a franchisor and franchisee relationship is not special or fiduciary. Id. 2. Brooks Automotive Group, Inc. et al. v. General Motors LLC, No. 2:18-CV-00798, 2019 WL 452494 (W.D. Penn. Feb. 5, 2019). In this case, the federal District Court for the Western District of Pennsylvania focused on what could happen if a franchisor has unfettered discretion to approve decisions impacting a franchisee’s business. Plaintiff Brooks (“Brooks”) owned and operated Brooks’ Buick and GMC dealership in Connellsville, Pennsylvania. Id. at *1. Brooks decided to sell the dealership and began negotiations with Harper Autogroup (”Harper”), who owned and
Recommended publications
  • Transfers and Assignments in Franchising
    American Bar Association 37th Annual Forum on Franchising FUNDAMENTALS 201: TRANSFERS AND ASSIGNMENTS IN FRANCHISING Phyllis Alden Truby Phyllis Alden Truby, APC Los Angeles, California and David A. Beyer Quarles & Brady LLP Tampa, Florida October 15 – 17, 2014 Seattle, WA ©2014 American Bar Association Table of Contents I. INTRODUCTION II. THE LEGAL FRAMEWORK A. Disclosure and Registration in the Transfer Context 1. FTC Rule 2. Transfer Disclosures in the FDD 3. State Laws B. The Impact of Franchise Relationship Laws 1. The Laws a. Arkansas b. California c. Hawaii d. Indiana e. Iowa f. Michigan g. Minnesota h. Nebraska i. New Jersey j. Washington 2. Industry-Specific Statutes 3. Some Significant Judicial Interpretations a. Good Faith and Good Cause b. Reasonableness c. Tort Liability III. DRAFTING PRACTICES AND PROVISIONS IN THE FRANCHISE AGREEMENT A. The Elements of Change of Ownership Definitions 1. Who Is the Franchisee 2. What Might Be Transferred 3. Transfer: “Let Me Count the Ways” B. Why One Size May Not Fit All: The Need for Flexibility and Consistency C. Some Common Standards 1. Complete Discretion 2. Not Unreasonably Withhold 3. Comparably Qualified D. Absence of Express Term in Franchise Agreement IV. SOME COMMON REQUIREMENTS AND CONSIDERATIONS A. Transfer Fee B. Execution of the Franchisor’s Current Form of Franchise Agreement C. Continuing Right to Occupy Any Franchise Location D. Review and Approval of Sale or Other Transfer Documents E. Transfer of All Assets of Franchised Business F. Payment of All Sums Due at Time of Transfer G. Franchisee Not in Default H. Renovating, Remodeling, and Upgrading Franchise Location I.
    [Show full text]
  • Franchise Litigation
    International Franchise Association 50th Annual Legal Symposium May 7-9, 2017 JW Marriott Washington, DC _______________________ BASICS TRACK: FRANCHISE LITIGATION _______________________ Panelists: John Verhey DLA Piper LLP (US) Chicago, Illinois Stephanie Blumstein Einbinder Dunn & Goniea LLP New York, New York Moderator: Andrew Beilfuss Quarles & Brady LLP Milwaukee, Wisconsin TABLE OF CONTENTS 1. Introduction ......................................................................................................................... 1 2. Unique Aspects of Franchise Litigation ............................................................................... 2 a. Federal and state regulatory framework .......................................................................... 2 b. Procedural battles ........................................................................................................... 2 c. Prevalence of Arbitration Agreements ............................................................................. 3 d. Claims and Counterclaims ............................................................................................... 3 e. Ongoing relationship of the parties .................................................................................. 3 f. Potential System-Wide Impact of Franchise Litigation ..................................................... 4 g. Lack of adverse relationship between the parties ............................................................ 4 3. Pre-Filing Dispute Resolution .............................................................................................
    [Show full text]
  • Joint Franchisor-Franchise Relations
    THE FRANCHISOR/FRANCHISEE RELATIONSHIP Third Annual Hospitality Law Conference February 3-4, 2005 Hyatt Regency Hotel, Houston, Texas Robert Zarco, Esq. Zarco Einhorn Salkowski & Brito, P.A. 100 S.E. Second Street, 27th Floor Miami, Florida 33131 Telephone: (305) 374-5418 Telecopier: (305) 374-5428 E-Mail Address: [email protected] Richard Barrett-Cuetara, Esq. Cowles & Thompson, P.C. 901 Main Street, 40th Floor Dallas, Texas 75202 Telephone: (214) 672-2165 Telecopier: (214) 672-2365 E-Mail Address: [email protected] Moderator: Andrew P. Loewinger, Esq. Nixon Peabody LLP 401 Ninth Street, NW Washington, DC 20004 Telephone: (202) 585-8855 Facsimile: (866) 829-9262 E-Mail Address: [email protected] Zarco Einhorn Salkowski & Brito, P.A. is internationally renowned for providing the highest caliber of legal services, expertise and professionalism in the areas of hotel and restaurant franchisor/franchisee, manufacturer/distributor, automobile, truck and equipment dealers’ disputes and complex commercial law including litigation, arbitration and mediation in the United States federal and state courts. The firm has achieved national and international recognition in the area of franchise law by representing clients throughout the world, including Mexico, France, Holland, Germany, Australia, New Zealand, Argentina, Uruguay, England and the Caribbean in disputes involving major franchise systems. The firm’s senior partner, Mr. Robert Zarco, is a graduate of Harvard University with a degree in economics, as well as a graduate
    [Show full text]
  • Efficiencies and Traps in Supply Chain Management
    American Bar Association 32nd Annual Forum on Franchising Sourcing Products And Services For The System: Efficiencies And Traps In Supply Chain Management Chesley K. Bud Culp III Moye White LLP and Rochelle B. Spandorf Davis Wright Tremaine LLP October 14 - 16, 2009 The Westin Harbour Castle Toronto, Canada ©2009 American Bar Association TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. THE FRANCHISE SUPPLY CHAIN ..................................................................................2 III. THE LEGAL FRAMEWORK GOVERNING THE FRANCHISE SUPPLY CHAIN..............7 IV. BENEFITS ARISING FROM FRANCHISOR CONTROL OVER AND INVOLVEMENT IN THE SOURCE OF PRODUCTS AND SERVICES...........................22 V. TENSIONS ARISING FROM FRANCHISOR CONTROL OVER AND INVOLVEMENT IN THE SOURCE OF PRODUCTS AND SERVICES...........................25 VI. DISCLOSING AND ADDRESSING SOURCING RESTRICTIONS IN THE FRANCHISE AGREEMENT: BEST PRACTICES ..........................................................30 VII. PROCUREMENT AND VENDOR AGREEMENTS: BEST PRACTICES ........................34 VIII. CONCLUSION.................................................................................................................41 i SOURCING PRODUCTS AND SERVICES FOR THE SYSTEM: EFFICIENCIES AND TRAPS IN SUPPLY CHAIN MANAGEMENT I. INTRODUCTION It has been observed that [t]he strength of franchise systems typically does not lie in the absolute quality of the products
    [Show full text]
  • Beguiling Heresy: Regulating the Franchise Relationship Paul Steinberg [Fna1] and Gerald Lescatre [Fnaa1]
    Penn State Law Review Summer 2004 Beguiling Heresy: Regulating the Franchise Relationship Paul Steinberg [FNa1] and Gerald Lescatre [FNaa1] I. Introduction As franchising [FN1] grows both in the United States and abroad, cases of franchisor [FN2] opportunism continue to increase. The franchise industry and many regulators insist that there is no evidence of systemic problems with franchising, and that any historical problems were addressed by the disclosure regime implemented with the passage of federal disclosure *107 requirements thirty years ago. This paper sets forth a wide range of abusive practices found in hundreds of legal cases from around the globe and across franchise systems. The majority of cases cited are recent cases. Virtually all of the cases cited deal with abuse occurring after signing of the franchise contract; abuse not covered by federal disclosure rules. Franchisors use arbitration clauses and forum selection clauses to minimize franchisee claims of abuse and ensure that any claims made are kept out of publicly available records. In the face of these abuses, there is regulatory inaction and constraints on the ability of courts to rectify the abuses permitted under contracts of adhesion. [FN3] Regulatory capture and the limitations of judicial intervention ex post are significant impediments to reining in franchisor abuse which must be addressed in the United States, as they have been in some foreign countries, by franchise relationship legislation. Any analysis of franchise regulation must take into account franchise realities, both with respect to the contract itself and the sophistication of the parties entering into the contract. As one court observed: Although franchise agreements are commercial contracts they exhibit many of the attributes of consumer contracts.
    [Show full text]
  • Franchise Agreement with Us
    FRANCHISE DISCLOSURE DOCUMENT Hilton Franchise Holding LLC a Delaware limited liability company 7930 Jones Branch Drive, Suite 1100 McLean, Virginia 22102 703-883-1000 www.hiltonworldwide.com You will establish and operate a Motto by Hilton™ hotel under a Franchise Agreement with us. The total investment necessary to begin operation of a newly constructed 175-room Motto hotel, excluding real property, is $12,288,700 to $67,943,500, including up to $427,500 that must be paid to us or our affiliates. This disclosure document summarizes certain provisions of your franchise agreement and other information in plain English. Read this disclosure document and all accompanying agreements carefully. You must receive this disclosure document at least 14 calendar days before you sign a binding agreement with, or make any payment to the franchisor or an affiliate in connection with the proposed franchise sale. Note, however, that no government agency has verified the information contained in this document. The terms of your contract will govern your franchise relationship. Don’t rely on the disclosure document alone to understand your contract. Read all of your contract carefully. Show your contract and this disclosure document to an advisor, like a lawyer or accountant. Buying a franchise is a complex investment. The information in this disclosure document can help you make up your mind. More information on franchising, such as “A Consumer’s Guide to Buying a Franchise,” which can help you understand how to use this disclosure document is available from the Federal Trade Commission. You can contact the FTC at 1-877-FTC-HELP or by writing to the FTC at 600 Pennsylvania Avenue, NW, Washington, DC 20580.
    [Show full text]