As part of its annual Franchise Legal Players issue, 1851 profiled the top franchise attorneys in the field to shine a spotlight on the work they do for the franchise industry.
1851: Tell us about your background and your firm.
Marlén Cortez Morris, Partner at Barnes & Thornburg LLP: I represent and advise clients on a wide range of franchise and distribution, commercial litigation, and labor and employment matters in courts, alternative dispute resolution venues and before government agencies across the country. From counseling and litigation avoidance to instituting and defending against litigation (up to appeals), my experience includes a broad spectrum of claims involving contract rights, intellectual property, torts, franchise registration and relationship law, as well as vicarious and joint employment liability.
I defend franchisors and other businesses against wage and hour class and collective actions for wrongful termination, discrimination, harassment, and retaliation arising under various federal, state, and local laws. Understanding the complexities of labor and employment law and franchising, I also work closely with clients to provide strategic guidance on navigating joint employment, vicarious liability, and general labor and employment law issues arising in the franchise relationship, corporate transactions, and due diligence initiatives.
I’m a member of the ABA’s Forum on Franchising, where I serve on the Diversity Caucus and as an editor of the ABA’s Franchise Law Journal. I’m also a member of the Section of Labor and Employment Law, and of the International Franchise Association, where I serve on the Diversity Institute Board.
Barnes & Thornburg is a full-service firm of more than 600 legal professionals advising on matters that span state lines and cross borders. Our attorneys practice from 14 offices across the country. As one of the 100 largest firms in the nation, we have experience in virtually all the legal practice areas required to do business in today’s global marketplace.
We live and work by the values that have guided the firm for nearly 100 years. For our clients, that means delivering value above and beyond the expected. It means a relentless focus on efficiency and cost-effectiveness. It means dedicated action on diversity initiatives and top talent recruitment. It means delivering uncommon value for our clients.
In the franchise and distribution arena, we work with complex franchise law issues in a diverse array of industries and jurisdictions. Our clients include established and emerging franchisors that operate franchise systems domestically and globally. We have experience crafting strategies to encourage and protect our clients’ franchising interests. Our team approaches clients’ business goals as a business partner would: offering guidance, industry wisdom, and creative ideas and solutions.
1851: What are some must-ask questions when franchisors and franchisees are vetting potential franchise attorneys?
Cortez Morris: Questions aimed at understanding the attorney’s experience—not only in franchising, but also in the particular areas at issue—are essential. For example, with the rise of joint employment claims, a franchisor or franchisee subject to those claims will want to probe the attorney’s relevant experience in the underlying employment law claims, whether those are wage and hour, misclassification, or labor law-related.
Because some of these claims can lead to costly litigation if they are being pursued on behalf of a class, franchisors and franchisees would also be wise to vet franchise counsel for class-action experience. Beyond the substantive expertise, a franchisor or franchisee should be clear on their objectives at the outset in order to find and secure counsel who is best aligned with helping the business achieve those.
1851: In broad terms, do you have a particular case that stands out to you as an industry learning experience?
Cortez Morris: Early on in my franchise career, I litigated a number of cases that involved challenges to a franchisor’s ability to control its franchisees’ pricing. Those cases quickly exposed me to the intersection between franchise and antitrust law, and the differences between a franchisor’s ability to establish maximum pricing versus minimum pricing after U.S. Supreme Court rulings (including Leegin). Those initial franchise cases, and what I learned in the course of those representations, taught me a great deal about the complexity of the franchise relationship and the strains that certain business decisions can impose on the franchise system, even if well-intentioned.
1851: What is the most rewarding aspect of your work?
Cortez Morris: Whether I am working with clients to offer proactive and strategic guidance or assisting them in litigation, I enjoy helping them achieve their desired outcome as efficiently as possible.
1851: What are your top concerns for the franchise industry in the next year?
Cortez Morris: Labor and employment issues, in general, will continue to affect franchised businesses. The joint employment arena remains unresolved, with no definitive standard from the National Labor Relations Board, Congress, or the courts; states continuing to enforce their own, distinct legislation; and the Department of Labor contemplating its own rule on the issue.
Over the past year, there has been an uptick in regulatory actions and litigation in opposition to no-poach provisions in franchise agreements, which are viewed as limiting to the recruitment and hiring of employees. This trend could continue in the next year.
With growing partnerships between food delivery companies and franchised businesses, the lines of who the employer is will further continue to be tested.
1851: What are you most optimistic about in the franchise industry in the next year?
Cortez Morris: From my perspective, I see continued growth, innovation, and increasingly diverse ownership in established and emerging franchise systems on the horizon.