Renewed Efforts to End No Poaching Provisions

Franchisors need to review their franchise agreements and take immediate action in response to the recent onslaught of legal action over “naked no poaching” provisions in franchise agreements.

In a typical franchise agreement, a franchisor will prohibit a franchisee from poaching its or its other franchisees’ employees during the term of the franchise agreement and for a period of time after the franchise agreement ends. Until now, these provisions were fairly commonplace. Franchisors argue these provisions are protect each franchisee’s investment of time and money in its employees, including general managers who sometimes participate in extensive training programs.

Critics of such provisions argue that the practice keeps wages for these employees low and that this is a manipulation of the market. Worker advocacy groups have long pushed for an end to this alleged “anti-competitive” practice. Economists generally agree that no poaching provisions have a negative impact on low-level employee wages.

Moreover, in October 2016, the U.S. Department of Justice (“DOJ”) and the FTC issued guidance that naked no poaching agreements are “per se” illegal–meaning that their very existence violates the law and sets companies up for criminal charges.  The DOJ further stated that it intended to criminally prosecute companies employing naked no poaching agreements. While most observers expected that the DOJ under Attorney General Jeff Sessions would retreat from this position, it has not, citing pro-competitive concerns. In fact, in April 2018, the DOJ initiated a criminal complaint against a number of companies respecting naked no poaching agreements. While the case settled with only civil penalties imposed, the DOJ expressly stated that it was reserving the criminal question and planned to “zealously enforce” the law.

Major Brands Settle After Attorney General Files Suit

In July, seven international brands agreed to no longer enforce the no poaching provisions in response to a lawsuit being led by the State of Washington Attorney General’s Office.

In August, eight more large brands followed this trend. Additionally, several state attorneys general, led by  Massachusetts Attorney General Martha Healy but including the AGs of California, Illinois, Maryland, Minnesota, New Jersey, New York, Oregon and Pennsylvania, have sent investigation letters to eight large international franchisors regarding each of their no poaching agreements.

This is only the beginning of the attack on no poaching provisions. In the past year, civil antitrust actions have been filed by employees of franchisees of several large international franchisors.

The potential liability under these actions could be substantial because the class sizes could be immense with treble damages and attorneys’ fees potentially being awarded in any franchisee employee victory.

McDonald’s Loses Bid to Dismiss

McDonald’s’ recent motion to dismiss was denied so the case against that company will proceed. The outcome of this case will be closely watched as a test case for this issue overall. The need to act is further supported by the fact that Senator Elizabeth Warren (MA) and Senator Cory Booker (NJ) are strong advocates of removing the “no poaching” provisions and have introduced legislation to make these acts illegal.

And the DOJ is bringing a criminal antitrust complaint against franchisors for what they call vertically assisted, horizontal conspiracies to fix labor rates, allegedly in violation of Section 1 of the Sherman Anti-Trust Act.

The time to address naked no poaching provisions is now. Franchisors should not wait until the update of your franchise disclosure document in 2019. If you need any assistance navigating through this process, the franchise team at Fox Rothschild is more than happy to assist.

Contributed by Ted Jobes, Chair of Fox Rothschild’s Anti-Trust Practice Group

62267877 - a wrod cloud of brand licensing related items
62267877 – a word cloud of brand licensing related items

Updating policies that had been on the books for more than two decades, the U.S. Department of Justice and the Federal Trade Commission has issued new Antitrust Guidelines for the Licensing of Intellectual Property that replace guidelines issued by the same agencies in April 1995. Such guidelines state the antitrust enforcement policy of the agencies relating to the licensing of intellectual property protected by patent, copyright and trade secret law, and of know-how. They do not cover the antitrust treatment of trademarks.

These modernized guidelines will be fundamental to the agencies’ review and analysis of the licensing of intellectual property rights and provide guidance to businesses and the public about the agencies’ enforcement approach to intellectual property licensing. The agencies had announced the proposed update of the guidelines and made a draft available for public comment in August 2016. During a 45-day comment period, the agencies received comments from academics, industry, law associations and nonprofit organizations. After considering the comments, the agencies have revised and promulgated the Guidelines.

The 2017 guidelines embody three general principles for the purpose of antitrust analysis, stating that the agencies:

  • Apply the same analysis to conduct involving intellectual property as to conduct involving other forms of property, taking into account the specific characteristics of a particular property right;
  • Do not presume that intellectual property creates market power in the antitrust context; and
  • Recognize that intellectual property licensing allows businesses to combine complementary factors of production and is generally procompetitive.

The guidelines contain a number of substantive changes which reflect changes in the law since the 1995 guidelines were issued. In particular, they reflect a number of significant changes in statutory and case law, and intervening changes in enforcement and policy work, including the 2010 Horizontal Merger Guidelines promulgated by the Department of Justice and the Federal Trade Commission. Among other changes, the 2017 guidelines revise the treatment of resale price maintenance provisions in intellectual property licensing agreements, include updates concerning market definitions and market power, and contain changes relating to situations where an intellectual property license or transfer will be treated as a merger.

Continue Reading First Time in over 20 Years: The DOJ and FTC Have Updated their Antitrust Guidelines for the Licensing of IP