LJN Newsletters

In a disappointing announcement released on Aug. 6, 2007, Dale Cantone, chairman of the Franchise and Business Opportunity Project Group of the North American Securities Administrators Association, informed the franchise bar that the state authorities that participate in the coordinated review program ('Coordinated Review') have suspended the program until further notice. The announcement also stated the franchise administrators would re-evaluate whether to reintroduce the program after July 1, 2008.

By now, everyone seriously involved in the practice of franchise law is aware of Leegin Creative Leather Products, Inc. v. PSKS, Inc., 2007 WL 1835892 (S. Ct. June 28, 2007). The Supreme Court in Leegin held that vertical resale price maintenance is no longer unlawful in and of itself. Although hailing the decision as overruling a nearly 100-year prohibition on minimum price fixing, the pundits writing in the wake of Leegin have nevertheless hedged their bets on just how revolutionary the decision is. Their constant mantra is this: Leegin does not open the door to unrestrained resale price maintenance, but rather changes the rules under which courts will evaluate sales agreements setting minimum prices. No longer will courts treat them as unlawful per se; they will now evaluate their legality under something called 'the rule of reason.' If a court (or jury) concludes that an agreement establishing a minimum price is an 'unreasonable restraint of trade,' then the supplier has violated the antitrust laws. If the threat of treble damages from such a finding isn't sobering enough, writers warn us that courts may interpret state 'baby Sherman Acts' as still making resale price maintenance unlawful per se, regardless of what the U.S. Supreme Court says.

Arbitration is under judicial and legislative attack. Late last year, the Ninth Circuit Court of Appeals held an unexceptional arbitration agreement to be substantively unconscionable simply because it allowed the franchisor to litigate certain trademark-related claims and gave the franchisor home court advantage. Nagrampa v. Mailcoups, Inc., 469 F.3d 1257 (9th Cir. 2006). On July 12, 2007, Sen. Russ Feingold (D-WI) introduced Senate Bill 1782, known as the 'Arbitration Fairness Act of 2007,' a key provision of which would invalidate pre-dispute agreements to arbitrate franchise disputes.

News about lawyers and law firms in the product liability field.

Highlights of the latest commercial leasing cases from around the country.

When Gwinnett County, GA, resident James Flynn bought a spray can of grout sealer from his neighborhood Home Depot in July 2005, he could not have imagined that his purchase would land him in the hospital and cost him the use of a lung. However, Flynn's attorney, Frank Ilardi, said that when his client bought Tile Perfect Stand 'N Seal Spray-On Grout Sealer, its manufacturer had been fielding complaints for more than a month about potentially devastating effects associated with its use.

A cursory review of the conflicting decisions being rendered across the country reveals that courts are fairly split over the issue of federal pre-emption of failure-to-warn strict liability claims in pharmaceutical litigation. The FDA directly addressed the issue in the Preamble to the Final Rule ('Preamble') published Jan. 24, 2006.

Product liability plaintiffs are facing ever-growing barriers to filing suit in state and federal courts. Tort reformers have won significant victories at the state level, including restrictions on asbestos claims and caps on punitive damages. At the federal level, the Class Action Fairness Act ('CAFA') has allowed for easier removal of state class actions to federal courts. In addition to the impact of CAFA, a number of states have enacted legislation that makes it more difficult to file class actions in their courts. Several states also have initiated 'venue reform,' which limits the ability of out-of-state plaintiffs to file lawsuits in those states.