Blog Banner Image

The Franchise Memorandum

Ohio Federal Court Denies Wendy's Second Motion to Dismiss Franchisee's "Lock-In" Tying Claim
Posted in Antitrust

In September 2009, The GPMemorandum reported that an Ohio federal court had denied the motion of Wendy’s International Inc. to dismiss a claim by several of its franchisees that Wendy’s had violated Section 1 of the Sherman Act by requiring the franchisees to purchase food supplies only from sellers in which Wendy’s had a financial interest. Burda v. Wendy’s Int’l, Inc., 659 F. Supp. 2d 928 (S.D. Ohio 2009). The court held that the franchisee-plaintiffs had sufficiently alleged that Wendy’s had market power in the tying product market under the “lock-in” theory discussed in Eastman Kodak Co. v. Image Technical Serv., Inc., 504 U.S. 451 (1992).

The court recently again denied Wendy’s motion to dismiss the tying claim in Burda v. Wendy’s International Inc., No. 2:08-cv-00246 (S.D. Ohio Oct. 25, 2010). This motion grew out of the withdrawal of the plaintiffs’ counsel of record. Thereupon, one of the plaintiffs, Robert Burda, who is also a lawyer, indicated that he would step in and represent himself and the other plaintiffs. Burda, however, neglected to file a notice of appearance within the time allowed by the court, and Wendy’s moved to dismiss the amended complaint on that basis. The court denied the motion, noting that dismissal would be improper because “Burda’s violation of the Court’s Order was more a technical than a substantive violation, and because Defendants are not prejudiced by Burda’s failure to file the Appearance of Counsel in a timely fashion[.]”  

Email LinkedIn Twitter Facebook

The information contained in this post is provided to alert you to legal developments and should not be considered legal advice. It is not intended to and does not create an attorney-client relationship. Specific questions about how this information affects your particular situation should be addressed to one of the individuals listed. No representations or warranties are made with respect to this information, including, without limitation, as to its completeness, timeliness, or accuracy, and Lathrop GPM shall not be liable for any decision made in connection with the information. The choice of a lawyer is an important decision and should not be based solely on advertisements.

About this Publication

The Franchise Memorandum is a collection of postings on summaries of recent legal developments of interest to franchisors brought to you by Lathrop GPM LLP. 

To subscribe to monthly emails for The Franchise Memorandum, please click here


















Blog Authors