Amicus Brief: Jessica Robinson v. Jackson Hewitt, Inc.
Jackson Hewitt enacted a no-poach agreement, which was correctly characterized as a horizontal market division in the case Robinson v. Hewitt. As such, COSAL wrote this brief to support using the per se rule to review the class certification motion. There are certain circumstances for which the per se rule is not applicable to horizontal divisions; however, those were not present in this case. Defendants tried to use one such exception, asserting that the restraint was “reasonably necessary” for competition; however, they did not properly justify their reasoning. Defendants said that Jackson Hewitt offices trained their employees and therefore did not want other competing locations to take away their employees who would not need training to do the job. But a franchisee recruiting a trained employee must still pay that individual and a franchise could keep their employee through more competitive compensation, meaning the free rider issue was not present. The per se rule also does not apply to vertical restraints. However, even though there were vertical elements in the case, the restraint itself was a horizontal division between Jackson Hewitt franchises. As such, the Court should assess the Motion for Class Certification using the per se rule. Kellie Lerner and Kristen Marttila authored this brief.
