A proposed class of McDonald’s employees will proceed with their case alleging that franchise agreements used by McDonald’s contained provisions that violated federal antitrust law after the Supreme Court declined McDonald’s petition to review a decision by the Seventh Circuit in Deslandes v. McDonald’s USA, LLC. The circuit court held that plaintiffs sufficiently alleged that a no-hire provision in McDonald’s franchise agreements was presumptively illegal under federal antitrust law without consideration of the provision’s procompetitive impact on other markets, including the sale of McDonald’s food and beverages.
Whether certain employment restraints, such as no-poach and no-hire provisions, violate the federal antitrust laws has been an issue of much debate over the last several years. DOJ dropped its last criminal no-poach case in November of last year after several high-profile failures to convince judges and juries to treat such provisions as per se violations of the Sherman Act. Deslandes v. McDonald’s is required reading for any corporate counsel handing antirust class action litigation involving no-poach or non-solicitation issues.