Mealey's Franchise : Mealey's : Legal News & Analysis

Mealey's Franchise

November 11, 2021
Employee Denied Pandemic Leave May Proceed With FMLA Claims, Not FFCRA Ones

ROANOKE, Va. — An employee who unsuccessfully sought leave during the coronavirus pandemic to care for his disabled brother may proceed with his claims under the Family and Medical Leave Act (FMLA) but failed to show that he qualified for leave under the Families First Coronavirus Response Act (FFCRA) due to serving as an “emergency responder,” a federal judge in Virginia ruled Nov. 1.
November 09, 2021
Judge: Exclusion Of Expert Witness Dooms Injury Suit Against Chicken Restaurant

BENTON, Ill. — An Illinois federal magistrate judge on Oct. 29 found that an expert medical witness retained in a woman’s suit alleging that she was injured in a fried chicken restaurant’s bathroom did not meet the requirements set under Daubert v. Merrell Dow Pharmaceuticals Inc., granting the company’s motion to exclude and awarding summary judgment after ruling that without that testimony, the woman failed to establish her claims.
November 04, 2021
2nd Circuit And Trial Court: Suit Challenging Federal Joint Employer Rule Is Moot

NEW YORK — The Second Circuit U.S. Court of Appeals on Oct. 29 dismissed as moot an appeal involving a challenge of a now-rescinded joint employer rule and vacated the trial court’s order and judgment and remanded with instructions to dismiss, which the trial court carried out that same day.
November 03, 2021
No ‘Actual Controversy’ As To Interpretation Of Direct Physical Loss Under State Law

ORLANDO, Fla. — A federal judge in Florida on Nov. 1 granted an insurer’s motion to dismiss a countercomplaint brought by the owner and operator of a network of nearly 80 restaurants throughout the country in a coronavirus coverage lawsuit, finding that the countercomplaint fails to state a claim for declaratory relief because there is no “actual controversy” as to the interpretation of “direct physical loss” pursuant to Georgia law.
November 03, 2021
High Court Questions Whether FAA Petitions Have Federal Question Jurisdiction

WASHINGTON, D.C. — The U.S. Supreme Court on Nov. 2 heard arguments from a former employee of a financial advisory firm who contends that the Federal Arbitration Act (FAA) did not create federal question jurisdiction over her petition to vacate a domestic arbitration award in favor of her former employer.
November 02, 2021
DOL Announces Tips Dual Jobs Final Rule

WASHINGTON, D.C. — The U.S. Department of Labor (DOL) on Oct. 28 announced publication of the Tips Dual Jobs final rule, which limits the amount of time an employer may take a tip credit when a tipped worker is performing work that is not tip producing.
October 29, 2021
U.K. Supreme Court Says $6.7M Award Cannot Be Enforced Against Nonsignatory

LONDON — The Supreme Court of the United Kingdom on Oct. 26 said an International Chamber of Commerce (ICC) arbitral award for $6.7 million in damages against a Kuwaiti company due to alleged violations of restaurant franchising agreements cannot be enforced because the tribunal incorrectly applied French law in finding the arbitration agreement enforceable against the Kuwaiti company as nonsignatory.
October 27, 2021
Federal Judge Agrees That Pizza Delivery Drivers’ Expenses May Be Approximated

CINCINNATI — A federal judge in Ohio on Oct. 19 fully adopted a magistrate judge’s report and recommendation that vehicle-related expenses incurred by delivery drivers working for Domino’s Pizza franchises may be “reasonably approximated” under the Fair Labor Standards Act (FLSA.)
October 26, 2021
Government Seeks Dismissal Of Appeal In Challenge Of Joint Employer Rule

NEW YORK — The U.S. Department of Labor (DOL) filed a reply on Oct. 21 in the Second Circuit U.S. Court of Appeals supporting its motion to dismiss as moot an appeal involving a challenge of a now-rescinded joint employer rule.
October 25, 2021
Illinois Federal Judge Tosses ADA Claim Against McDonald’s Franchisor

CHICAGO — A decision by three McDonald’s franchises to serve only cars in their drive-through lanes cannot serve as the basis of a claim against McDonald’s USA LLC under the Americans with Disabilities Act (ADA) because the franchisor does not “operate” its franchises within the meaning of the statute, a federal judge in Illinois ruled Oct. 5.
October 25, 2021
9th Circuit: Massage Envy Settlement Vouchers Were Coupons Under CAFA

SAN FRANCISCO — A class settlement by a massage and skin care franchisor accused of violating its membership agreement by periodically increasing membership fees was a coupon settlement under the Class Action Fairness Act (CAFA), a Ninth Circuit U.S. Court of Appeals panel ruled Oct. 20, first vacating approval of the attorney fee award and remanding for reconsideration based on the value of the redeemed vouchers and then vacating approval of the settlement for failure to adequately investigate the warning signs of implicit collusion, a process necessary for pre-certification settlements pursuant to In re Bluetooth Headset Products Liability Litigation.
October 25, 2021
DOL Announces Mileage Reimbursement Recovery For Franchisee Drivers

COLUMBIA, S.C. — The U.S. Department of Labor (DOL) Wage and Hour division recovered $27,209 in denied mileage reimbursement for delivery drivers employed by a South Carolina Jimmy John’s franchisee, the DOL announced Oct. 20.
October 25, 2021
Judgment Denying COVID-19 Coverage Claim Will Not Be Amended, Federal Judge Rules

SEATTLE— A federal judge in Washington on Oct. 7 denied a hotel owner’s motion to amend the judge’s prior judgment dismissing its lawsuit challenging an insurer’s denial of coverage for COVID-19-related losses, finding that even if the hotel owner’s scientific evidence that the coronavirus was airborne was “newly discovered evidence,” the claim would fail because the hotel owner could not show that the coronavirus causes lasting damage to property.
October 23, 2021
In Dispute Between Former Partners, Panel Says Forum Clause Not Enforceable

CINCINNATI — A federal judge in Michigan erred in granting a countertop manufacturer dismissal of allegations that it breached its contract with a countertop fabricator in view of a forum selection clause in the parties’ franchise agreement, the Sixth Circuit U.S. Court of Appeals ruled Oct. 15.
October 21, 2021
7-Eleven Franchisees To Massachusetts High Court: No ABC Test Carve Out

BOSTON — Franchisees who have allegedly been misclassified as independent contractors rather than employees are not exempt under the three-prong “ABC test” as it “applies to all claims of misclassification,” 7-Eleven franchisees tell the Massachusetts Supreme Judicial Court in their Oct. 12 appellant brief addressing a certified question from the First Circuit U.S. Court of Appeals.
October 21, 2021
2nd Circuit Denies Franchisees’ Rehearing Request After Ruling On Fees

NEW YORK — The Second Circuit U.S. Court of Appeals on Oct. 14 denied a request for a panel rehearing or, in the alternative, for rehearing en banc brought by two cleaning company franchisees after a divided panel ruled that their franchisor’s compensation scheme, which included an initial franchise fee and ongoing payments from franchisees, did not violate Connecticut law even if the franchisees were found to be employees rather than independent contractors.
October 20, 2021
Employee In Dispute With Franchisee Asks High Court To Review Arbitration Waiver

WASHINGTON, D.C. — The U.S. Supreme Court should review a wage-and-hour dispute between an employee and a Taco Bell franchisee to resolve a circuit split concerning whether a party asserting arbitration waiver due to litigation conduct must show prejudice as “the continued existence of the arbitration-specific prejudice requirement has consequences beyond its effect on particular cases, undermining this Court’s authority and leaving lower courts confused about how to apply its precedents,” the employee argues in her Oct. 15 reply brief.
October 18, 2021
Default Judgment Entered For Insurer In Carbon Monoxide Coverage Suit

NASHVILLE, Tenn. — A Tennessee federal judge on Oct. 15 granted an insurer’s motion for default judgment in a carbon monoxide poisoning coverage dispute after determining that a default judgment is appropriate because the insured failed to make any appearances since the insurer filed its suit.
October 14, 2021
Class Suit Accusing Subway Of Tuna Misrepresentation Dismissed With Leave To Amend

OAKLAND, Calif. — A federal judge in California on Oct. 7 dismissed with leave to amend a putative class complaint accusing a sandwich franchisor of violating California’s unfair competition law (UCL) and other state laws by labeling its tuna salad, sandwiches and wraps as “100% tuna” while failing to prevent adulteration in its supply chain or honor its representation that it has “a global ban on the sale of tuna species that come from anything less than healthy stocks.”
October 12, 2021
Golden Corral Franchisor Appeals Dismissal Of Coronavirus Coverage Dispute

RALEIGH, N.C. — Golden Corral Corp. and Golden Corral Franchising Systems filed a notice in a North Carolina federal court on Oct. 6 indicating that they are appealing the court’s grant of an insurer’s motion for judgment on the pleadings and dismissal of their bad faith lawsuit seeking coverage for their financial losses arising from the suspension of their restaurant operations in response to the government orders prompted by the coronavirus pandemic.
October 04, 2021
EEOC Sues Colorado Dealership For Subjecting Workers To Hostile Environment

DENVER — A Golden, Colo., car dealership has violated federal law by subjecting both male and female employees to a sexually hostile work environment and Black and Hispanic employees to a racially hostile work environment, the Equal Employment Opportunity Commission alleges in a complaint filed Sept. 30 in a federal court in Colorado.
September 28, 2021
Cleaning Company Franchisees Request Rehearing After Ruling For Franchisor On Fees

NEW YORK — Two cleaning company franchisees moved for rehearing en banc on Sept. 24, less than a month after a divided Second Circuit U.S. Court of Appeals ruled that their franchisor’s compensation scheme, which included an initial franchise fee and ongoing payments from franchisees, did not violate Connecticut law even if the franchisees were found to be employees rather than independent contractors.
September 27, 2021
Radisson, Competitor Stipulate To Dismissal Of Claim Of Interference With Agreements

SPOKANE, Wash. — Following a stipulated motion to dismiss, a federal judge in Washington on Sept. 2 dismissed a lawsuit brought by Radisson Hotels International Inc., a hotel franchisor, alleging that one of its business competitors intentionally interfered with the franchise agreements of nine franchisees to acquire those franchisees and force the franchisor out of the subject territory.
September 27, 2021
Federal Judge Dismisses Golden Corral Franchisor’s Coronavirus Coverage Dispute

RALEIGH, N.C. — A federal judge in North Carolina on Sept. 8 granted an insurer’s motion for judgment on the pleadings and dismissed Golden Corral Corp. and Golden Corral Franchising Systems’ bad faith lawsuit seeking coverage for their financial losses arising from the suspension of their restaurant operations in response to the government orders prompted by the coronavirus pandemic, finding that the insureds have not plausibly alleged tangible, physical harm to their covered property or a tangible loss of their covered property.
September 27, 2021
DOL Announces Final Rule Allowing Penalties Where Employers Take Tips

WASHINGTON, D.C. — The U.S. Department of Labor announced a final rule on Sept. 23 that it says will restore the ability to levy civil money penalties up to $1,100 against employers who take workers’ tips and withdraw the civil money penalties’ provisions in the 2020 tip final rule that would have allowed the DOL to assess these penalties where such violations were found to be repeated or willful.