Antitrust Law Daily Wrap Up, FRANCHISING & DISTRIBUTION NEWS: Donut Shop Area Developer Asks Supreme Court to Review Decision Based on Judicial Admission, (Jan 3, 2013)

By William Zale, J.D.

In case in which a $336,000 damages award to a donut shop area developer was overturned on appeal as barred by a two-year contractual limitation in a store development agreement, the developer has asked the U.S. Supreme Court to decide whether an appeals court improperly disregarded a trial court’s findings of fact in relying on an admission by the developer. The petition for certiorari in Progressive Foods, LLC v. Dunkin’ Donuts, Inc., Dkt. 12-767, was filed December 21, 2012.

At issue is a not-for-publication decision of the U.S. Court of Appeals in Cincinnati, CCH Business Franchise Guide ¶14,882 (6th Cir. Aug. 9, 2012). The developer alleged that it had “timely notified” the franchisor of claims against it more than two years prior to the date the developer brought suit. In order to qualify as judicial admissions, statements must be deliberate, clear, and unambiguous, but they did not need to be true, according to the appellate court. The appellate court held that the developer’s admission was binding as to when it had discovered the factual basis for all of its claims against the franchisor and related defendants.

Thomas R. Brule (Brule Law Firm, LLC) for Progressive Foods, LLC.

News: FranchisingDistribution