It was wonderful seeing so many of you at the 38th annual Forum on Franchising meeting in New Orleans. Our registration numbers set an all- time record, with 870 attendees from the United States and several other countries. We are excited about the continued growth of the Forum and look forward to beating this record at the 39th Forum on Franchising, which will be held in Miami November 2–4, 2016.
March 18, 2016
Message from the Forum Chair
Karen Satterlee, Hilton Hotels
The New Orleans Forum had many highlights, including the plenary session featuring Richard Griffin, General Counsel for the National Labor Relations Board, and David Weil, Administrator of the Wage and Hour Division of the U.S. Department of Labor.This session highlighted the well-publicized tension that has surfaced between various aspects of employment law and franchise law and practice, and it showcased the thoughtful, substantive, and collegial dialogue that distinguishes the Forum and its annual meeting. Kudos go to Andrew Loewinger, Eric Karp, Jonathan Solish, and Deborah Coldwell for their outstanding work on this program. As always, our intensives, workshops, and plenaries on cutting-edge topics added value by offering tips and best practices from our distinguished faculty of Forum members. Our events on Thursday night at the New Orleans Museum of Art and Friday night at the Presbytre were both lively and rich with good company, local music, and the best of New Orleans cuisine.
In addition to the educational sessions and net- working events, there was Forum business to attend to. During the annual meeting, the Forum presented the following awards:
- The Rising Scholar Award to Mei Zhang, a 2015 graduate of Southern Methodist University, for her article International Franchising: Food Safety and Vicarious Liability in China, published in the Summer 2015 edition of the Franchise Law Journal (FLJ);
- The Future Leader Award to Trishanda L. Treadwell, a partner with Parker, Hudson, Rainer & Dobbs LLP and Associate Editor of the FLJ;
- The Chair’s Award for Substantial Written Work or Presentation to Keri A. McWilliams of Nixon Peabody LLP for her article PCI Compliance: What Franchisors Need to Know, published in the Fall 2014 edition of The Franchise Lawyer; and
- The Lewis G. Rudnick Award to W. Michael Garner of Garner & Ginsburg, P.A. Michael is a former member of the Forum’s Governing Committee, has served an editor in chief of the FLJ, and is the editor of the Forum’s Franchise Desk Book.
In addition to these awards, the Forum announced the establishment of the American Bar Association Forum on Franchising Diversity Award. This award will be given to a Forum member who has demonstrated a substantial contribution to the diversity goals of the Forum by, for example, taking a leading role in activities sponsored by the Diversity Caucus, serving as a Steering Committee Member of the Diversity Caucus, mentoring diverse members of the Forum, writing articles for the Forum’s publications, or speaking at the Forum’s annual meeting on topics involving diversity in franchising. We will consider candidates for this award for the 2016 Miami Forum.
The Forum also recognized the loss of our colleagues Jack Dunham and John Baer in 2015. Jack Dunham served as Chair of the Forum from Message from the Chair Continued from front cover revenues. For a similar outcome under similar facts but applying Washington law, see Jon K. Morrison, Inc. v. Avis Rent-A Car Sys., Inc., 2003 WL 23119903 (WD Wash. 2003). Another attempt to characterize an arrangement similar to the Uber arrangement as a franchise proved unsuccessful in Atchley v. Pepperidge Farm, Inc., Case No. CV-04-0452-EFS (E.D. Wash., filed Nov. 29, 2004). In that case, Pepperidge Farm consigned product to a distributor that stocked the product at retailer facilities. (Although not expressly addressed in the opinion, it appears the distributor supplied the delivery vehicle.) When the products sold, the retailers paid Pepperidge Farm, which then paid a 20% concession to the distributors, less various deductions. After a bench trial, the court issued an opinion on December 6, 2012, in which it determined that the structure Pepperidge Farm used (which included both commissions on sales and deductions from those commissions) did not constitute a “franchise fee” because the distributors made no “unrecoverable investment” in the business. Conclusion The cases thus far have not been successful for franchisees. Nevertheless, there are non-frivolous arguments that courts should treat Uber drivers as franchisees and extend to them the protections of state franchise laws. Whether—or when—those arguments will succeed remains to be seen. As the economy evolves, new business models like Uber must continue to consider existing regulations, including the franchise laws. n2007–2009 and as a partner with Wiggin and Dana LLP. Jack was a great believer in what he termed the “opportunity culture” and helped develop the Forum’s culture of meritocracy. He was also a mentor and took a particular interest in helping young lawyers develop their legal writing skills. Therefore, the Governing Committee thought it fit to honor Jack’s memory by renaming the Rising Scholar Award to the Edward (Jack) Wood Dunham Rising Scholar Award. The first award in Jack’s honor will available at the Forum’s 2016 meeting in Miami.
John Baer was a highly respected franchise attorney practicing with Greensfelder, Hemker & Gale, PC. John was a former member of the Governing Committee and the first recipient of the Lewis G. Rudnick Award. In the wake of John’s death, friends and family established a scholarship in John’s memory. The annual scholarship will be awarded for five years in John’s honor to a member of the Forum who exemplifies leadership and civility in the field of franchise law, with a special emphasis on international law. Applicants for this scholarship will be considered prior to the Forum’s 2016 meeting in Miami.
Speaking of Miami, the Forum Planning Committee, including program co-chairs David Oppenheim and Chris Bussert, is already hard at work developing what will be another stellar annual meeting. Mark your calendars and plan to join us November 2–4, 2016 at the Fontainebleau Hotel in downtown Miami. We will have more news about programs, workshops, and special events in the coming months.
As always, please do not hesitate to reach out to me directly with your suggestions for the Forum at the meeting or at [email protected].