McDonald's: Message sent to law firm's digital marketing agency may fry class action over non-competes

By Dan Churney | Jun 7, 2019

Fast-food giant McDonald's is trying to fry a lawsuit, which alleges the restaurant chain improperly restricts hiring among competing franchises, by demanding to know the contents of a message the plaintiff sent to a digital marketing firm attempting to drum up business for her eventual attorneys - a message which McDonald's contends might show the attorneys knew their lawsuit was filed too late.

Leinani Deslandes filed a class action in 2017 against McDonald's Corporation in U.S. District Court for Northern Illinois. She alleged McDonald's violated the U.S. Sherman Antitrust Act by "reducing wages and worsened working conditions," by requiring franchisees to not hire employees from rival franchisees. McDonald's is headquartered in Chicago.

"This is not a case in which one party is seeking to invade the other’s confidential legal communications and strategy. McDonald’s seeks only the factual information contained in

Plaintiff’s response to her counsel’s publicly posted questionnaire — factual information that was already disclosed to an advertising firm," McDonald's summed up.

Deslandes was working as a manager in 2015 at a McDonald's in Apopka, Fla., when she unsuccessfully applied for a management job at a competing McDonald's in Orlando, Fla. She said she learned of a "no-hire agreement," which forbid the Orlando restaurant from hiring current employees or anyone who had worked at a competing McDonald's in the past six months. Deslandes asked the Apopka restaurant to release her from the provision, but she said the restaurant refused. She quit McDonald's in 2016.

Deslandes said the no-hire provision has been part of McDonald's franchise agreements. Franchisees who ignore the ban risk termination of their franchises. According to court papers, McDonald's stopped including the provision in agreements in 2017, but the provision remains in about 13,000 agreements inked before that time.

McDonald's suspects Deslandes' action was lodged after the four-year statute of limitations for antitrust suits had expired under the Sherman Act, and Deslandes' attorneys were aware it had expired. Specifically, McDonald's claimed Deslandes tried to move to a competing McDonald's in March 2013, but her suit was not filed until June 2017.

To support its contention, McDonald's wants Deslandes to hand over her responses to an online questionnaire linked to an advertisement for McCune Wright Arevalo LLP, which is one of the law firms representing Deslandes. The advertisement was set up by ONE400, a California digital advertising and marketing company that helps law firms draw clients. In particular, the website for ONE400 talks of helping McCune Wright Arevalo "launch an advertising campaign" and, for a different suit, to "find a plaintiff in a few days," according to Deslandes.

Deslandes has refused to turn over her questionnaire responses, citing attorney-client privilege. However, McDonald's said that while Deslandes' responses were received by several lawyers and staff at McCune, they were also received by a third party, identified as Virginia Ochi, who was then ONE400's digital marketing director.

"To the extent these documents ever were privileged, Plaintiff waived it by disclosing the communications to a third party.  And, in any event, the circumstances of these communications do not support an expectation or intention by Plaintiff that they were confidential," McDonald's asserted.

McDonald's contended ONE400 was not acting as a "de facto paralegal or secretary, or as an expert necessary to provide legal advice." As a consequence, communications between Deslandes and ONE400 are not privileged, in McDonald's view.

In addition, McCune's website has a disclaimer warning visitors the site is "not intended to create . . . an attorney-client relationship," which, according to McDonald's, indicates Deslandes should not have expected her questionnaire information to be confidential.

"Where, as here, attorneys are merely fishing for information from individuals interested in filing suit without promising representation or confidentiality, the respondent (Deslandes) has no reasonable expectation of confidentiality at the time they submit their information," McDonald's argued.

U.S. District Judge Jorge Alonso is presiding over the case.

Besides McCune Wright Arevalo, of Ontario, Calif., Deslandes is represented by Lieff, Cabraser, Heimann & Berstein, of San Francisco, and Scott + Scott Attorneys, of New York City and San Diego.

McDonald's is defended by the Los Angeles firm of Gibson, Dunn & Crutcher and the Chicago firm of A & G Law.

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Organizations in this Story

Gibson, Dunn & Crutcher LLP Lieff Cabraser Heimann & Bernstein McCune Wright Arevalo LLP McDonald's Corporation U.S. District Court for the Northern District of Illinois

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