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contractor statute must be satisfied to avoid the "employer" designation. The failure of the court in Awuah to apply the law in a fashion adaptive to the economic realities, norms, and structures of franchising is disturbing and could prove most dangerous.On the eve of oral argument of Coverall's appeal to the First Circuit, in January 2015 theparties reached a proposed class settlement; filed a motion to remand the case back to the U.S. District Court (which motion was granted); and, on April 15, 2015, the parties filed a consent motion seeking district court approval of the proposed $5.5 million settlement (pursuant to which Coverall will also cease doing business in Massachusetts).4. The Other Exception to the General Rule: Judicial Determinations That It Is Premature to Rule on the "Joint Employer" IssueThe issue of whether a franchisor is the employer of its franchisees or the "joint employer" of its franchisees' employees has frequently been presented to the judiciary in the context of pre-trial dispositive motions, i.e., motions to dismiss and motions for summary judgment. In a number of these cases, the judiciary has determined that the issue is not sufficiently ripe such that additional discovery or a trial on the merits is required so that a full exposition of the facts may be adduced. Counsel for franchisees or franchisees' employees tout such judicial decisions denying franchisor dispositive motions as confirmation of the principle that a franchisor is, indeed, the employer of its franchisees or those franchisees' employees. However, nothing could be further from the truth.Under Rule 12(b)(6) of the Federal Rules of Civil Procedure and analogous state procedural codes governing motions to dismiss, a complaint must merely contain sufficient factual matter to state a claim for relief that is plausible on its face, and all reasonable inferences must be drawn in the plaintiff's favor. Further, when decidinga motion to dismiss, a court is obliged to accept all allegations in the complaint as true.Similarly, on a motion for summary judgment under Rule 56(c) and analogous state procedural codes, the moving party bears the burden of establishing that there are absolutely no genuine issues of material fact for the court to decide, that it is entitled to
judgment as a matter of law, and the court must construe the facts and all reasonable inferences in the light most favorable to the non-moving party.Accordingly, courts frequently refuse to dismiss at the pleading stage a complaint asserting that a franchisor is a joint employer of its franchisees' employees and similarlyoften express reluctance to grant summary judgment on the issue. Instead, the courts often wait for discovery to be conducted, a record established, and sometimes a trial held before rejecting such a contention.A representative case is Cordova v. SCCF, Inc., in which the franchisor of Sophie's Cuban Cuisine Restaurants was alleged to be the joint employer or a single integrated employer of its franchisees' employees in a putative class action alleging FLSA and New York Labor Law violations. Sophie's moved to dismiss the complaint. However, the