Supreme Court Nomination: A Legal Quagmire

By Robert Cresanti, CFE

It goes without saying that the passing of U.S. Supreme Court Justice Antonin Scalia represents a major loss of a legal titan and champion of the Constitution. It will impact this country on many levels for decades to come. It will impact the elections for the U.S. President and Congress this November. It will impact Congress’ ability to make substantive progress on important issues facing our country. And, it will impact the work of a newly configured high court, in the short term while it only has eight Justices, as well as after his replacement is confirmed. His death will affect the lives of every American, influence how our government functions, and set a course that could change the way the private sector and businesses operate in unprecedented ways. 

These monumental changes in the Supreme Court and the ripple effects they will have will affect the future of franchising dramatically. IFA’s legislative efforts to reaffirm the traditional definition of franchising as a solution to the U.S. National Labor Relations Board’s new joint employer rule is more likely to be stalled until after the election, as Congress struggles over the next appointment. The association’s appeal to the Supreme Court to review the constitutionality of the City of Seattle’s new wage law, which discriminates against franchisees, may — as of this writing — face a tougher road. Also, the Supreme Court case challenging certain compulsory public sector union dues has gone from a likely win to a likely loss. These initiatives are critical to preserving the franchise model.

When I think about the severity of the challenges that we are facing at this moment in franchising’s history, I draw upon the lessons learned from one of my law school professors at Baylor College of Law. He was tough, tenacious and meticulous in his preparation. He mastered the use of every legal tool from procedure to evidence to make his client’s case. He made sure that his students did the same. He taught us that not every situation ends up being a nice, neat case study from which one unassailable truth springs forth. So he forced us to confront the messy situations we so often face in real life, by teaching us to be prepared for our opponents to pull lots of unexpected and sometimes even seemingly irrational maneuvers.  

What franchising is facing now is one of those messy situations he had in mind. With the help of IFA members, we are working hard to fight back, but if we are to be truly prepared, we will need the help of every single member.

Our strategy to address these challenges has been to lay the groundwork to shift from reactive to proactive, particularly at the state and local level. IFA, of course, will fight back against cities and states that attempt to discriminate against franchisees by applying wage laws unfairly simply because they are part of a national brand. But our greatest chance of having an impact will be to push more states to follow the lead of Tennessee, Texas and Louisiana and pass laws that define franchising as it should be. We have the success of these states to draw upon as we continue our push for similar laws in a dozen more states going forward.

I want to thank the members of the IFA Legal/Legislative Committee, which is comprised of legal counsels for our member companies and lawyers from IFA member law firms. They have been a big part of our success to date in both our proactive and reactive efforts. I urge everyone in the franchise legal community to get involved in the Legal/Legislative committee, attend the Legal Symposium May 15-17 in Washington, D.C., and join the Franchise Action Network, our grassroots program. 

By working collectively, we have a great shot at increasing the number of states that support the traditional definition of franchising. Success at the state level will help us work through this legal quagmire we are facing and ensure that franchising stays on course to a bright future.

Robert Cresanti, CFE, is President and CEO of the International Franchise Association. Find him at fransocial.franchise.org.