John Kenny is the owner of a sports bar and wing restaurant that he started in 1995. The location was a franchise until 2013, when—eight years after the written franchise agreement expired—JK decided to terminate the relationship. The franchisor sued him, alleging they were entitled to continue receiving royalty fees while simultaneously shutting down the location pursuant to a covenant not to compete. Ichter Davis was able to help JK resolve that dispute quickly and efficiently so he could focus on what he loves—running The Wing Cafe & Tap House in Marietta.
If you are a franchisee in a dispute with your franchisor—whether you’re in litigation or not—call Cary Ichter and Dan Davis at Ichter Davis, LLC. We have extensive experience resolving franchise disputes and would love to put that know-how to work for you.
In this video, JK speaks about his experience.
In April of 2014, the financial services department of the firm that was then known as Habif Arogeti & Wynne and is now known as Aprio (“HAW”) was raided by brokerage behemoth Morgan Stanley Smith Barney. HAW had written employment agreements with their financial advisors (“FAs”) that required the FAs to provide advance notice before resigning. Neither Morgan Stanley nor the FAs appeared to care about that, however; they both claimed they were protected from liability for the flagrant breach of their contracts by something called the Protocol for Broker Recruiting (the “Broker Protocol”).
The Broker Protocol is a pact among hundreds of brokerage houses that purports to allow them to poach each other’s talent without being subject to suit or civil liability. If recruiting employers follow the rules of the Protocol, they can hire each other’s talent regardless of whether the employees are bound by non-compete or non-solicitation covenants. But what of notice of termination provisions? Does the Protocol cover notice provisions? Such questions are the stuff litigation is made of.
No court in the United States had ever addressed the issue of whether the Protocol covered notice provisions—until HA& W Capital Partners v. Bhandari. In that case, the trial court granted the FAs’ motion for summary judgment and held the Protocol barred HAW’s claim that the FAs breached their promise to provide advance notice of their resignation. In a decision that made national business news headlines, the Georgia Court of Appeals reversed, holding that advance notice of resignation provisions are “reasonable to allow the employer to prepare for an orderly transition …,” are not “restrictive covenants” comparable to non-solicitation provisions, and can be enforced by employers through suits for monetary damages. The Court also held the Broker Protocol does not change that result. That precedent-setting result was the product of the advocacy of Ichter Davis. To hear more, watch this video.
Jim Griffin was the owner of a regional construction company that was purchased by a national firm. Jim was made a C-level executive of the company and entered to an employment agreement that ran for a number of years. The agreement was set to expire in the middle of the Great Recession, and the employer was a looking for a way to cut its operating costs. So, the employer did not want to renew the contract. There was one problem with that: the agreement has a two year non-compete if Jim was terminated for cause or quit without cause, but if the contract expired, he left free of any restriction. So, what is a multi-billion-dollar company to do? Screw the little guy of course. The problem was Jim wasn’t so little, and they did some things that made him very angry.
Hoping to get Jim to quit in a huff, the employer fired Jim’s son and son-in-law on the same day without any notice to anyone. Jim didn’t quit, but knowing that in less than a year his agreement would expire, he started talking to his son about the possibility of starting a new company. Of course, the employer was monitoring his email closely, and spotted these communications.
They sent notice to Jim that this conduct was a violation of his contract, and they declared a default. Although it was not, Jim responded by saying he would go forth and sin no more. The agreement provided for cures of any defaults, and Jim rightly claimed his response constituted a cure. The employer disagreed, although it refused to explain what it wanted as a cure.
So, they fire Jim. There was an arbitration provision in the Employment Agreement, and we arbitrated the case—after taking a few depositions. The arbitrator found that the employer breached the agreement and made Jim a six figure compensatory damages award.
Apparently, the employer forgot the immortal words of Jim Croce: “You don’t pull on Superman’s cape; you don’t spit in the wind; you don’t tug on the mask of that old Lone Ranger; and you don’t mess around with Jim”—or his lawyers.
If someone has breached an agreement with you or your business, whether its litigation, arbitration, mediation, or something else, call Cary Ichter and Dan Davis at Ichter Davis, LLC.
Hear Jim speak for himself.