Franchise Law Update Blog

Tami writes frequently for the firm's Franchise Law Update blog, which highlights not only the regulatory aspects of franchising but also diverse topics such as business finance, employment, litigation and the protection of intellectual property including trademarks and copyrights.

Recent Blog Posts

  • 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: Installed Department of Labor leadership widely viewed as labor-friendly  Abruptly replaced the NLRB’s Chief Counsel Euthanized Trump’s joint employment regulation Added a $15 minimum wage provision to the latest round of COVID funding Reading the favorable tea leaves, Democrats have reintroduced the PRO Act. That piece of legislation, among... 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. One of those gifts, the Trademark Modernization Act: (a) Essentially overrules eBay v. MercExchange and creates a rebuttable presumption of irreparable harm on a finding of trademark infringement, including in instances of cybersquatting; and, (b) Allows petitions to expunge or reexamine registered marks that are not or have never been used in commerce in connection with the goods and services listed... 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 the Obama Department of Labor intend to deliver a knock-out punch to a very popular business structure that creates tens of thousands of independent franchisee business owners, who in turn employ hundreds of thousands of workers? I recently had an interesting conversation on this topic with Erik Sherman, who... More
  • Franchising on the Precipice: Unknowns in Transition Over the last 8 years or so, the ever-changing landscape of employment laws has arguably posed an existential threat to franchising. The franchise business model may not make sense if franchisors are legally defined as the employers of their franchisees or joint employers of their franchisees’ employees. But what is an “employee” and who is a “joint employer?” Question 1: Joint employment – Will a Biden DOL defend the Trump regulation, will it enforce the economic realities standard, and/or will it... 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 the Department only 6 months ago. The DOL Rule adopted a control-based test of joint employment for purposes of federal employment law, in particular the Federal Labor Standards Act (“FLSA”). The Rule was strongly cross-current to states legislative actions adopting versions of the ABC joint employment test,... 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 horror of the franchise industry, it appeared to create a presumption that the franchise business model created an employment relationship between franchisor and franchisee and franchisee’s employees. The Bill’s sponsors in the Assembly disclaimed any intent to interfere with positive business relationships that allow small businesses, including... 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 operators, employees and consumers. In my opinion, COVID immunity laws are critical to franchisors, franchisees, franchise employees, and consumers. COVID has pitched a small nuclear device into the franchise industry. Overnight everything changed. Franchisors and franchisees were faced with shut-down orders, obtaining needed inventory and supplies became problematic, some... 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 unpredictable future. And of course the internally split Senate must negotiate final legislation with the House. In the meantime, workers and businesses are forced to battle the virus, navigate challenging re-openings, and handle employment complications without much comfort as to... 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 Department of Labor’s final joint employment rule moved forward in the Southern District of New York, and the North American Securities Administrators Association issued guidance on financial performance representations in light of the Coronavirus. States Litigate: DOL joint employer rule... 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 take a look at the actions taken by Congress to legislate some flexibility into Payroll Protection Plan loans and how the Federal Reserve expanded its Main Street lending programs to reach small businesses. Congress Legislates: The PPP Flexibility Act             Facing abrupt revenue interruption due... More