Introduction

Emily Duke is a shareholder and the Chair of Fredrikson & Byron’s franchise group, providing general business advice to a wide array of franchise clients including those in the life sciences, food service, and fitness industries. She covers the gamut of business issues for franchisors in situations including: disputes with franchisees, enforcement of non-competes, enforcement of contractual franchise requirements, advice on supply contracts, and advice on host retailer arrangements.

She is also a commercial litigator and co-chair of the firm’s Electronic Discovery Resources Group. Emily uses her knowledge of computer forensics and e-discovery to help businesses protect their trade secrets. She also enjoys defending and prosecuting non-compete disputes, where the ability to distill the key facts and legal issues involved in a situation, anticipate the opponent’s strategy, and take quick action are critical to resolving matters favorably to her clients. 

Emily has also gone to battle for business clients to obtain harassment restraining orders against disgruntled former employees who threaten to “go postal,” and to obtain emergency interim relief in cases where businesses will be irreparably harmed if the matter waits until a trial after extensive discovery. Emily has even successfully found judges, after the courthouse has closed, in order to obtain ex parte relief in extreme situations such as freezing a bank account to prevent its funds from being wired off shore, and preventing the involuntary detention of a client in the mental health wing of a hospital.

Education

• Harvard Law School, J.D., 1994, cum laude
• Yale University, B.A., Economics, 1988, magna cum laude with honors in Economics

Bar Admissions

• Minnesota, 1994
• U.S. District Court for the District of Minnesota, 1994
• U.S. Court of Appeals for the Eighth Circuit, 1996
• U.S. Supreme Court, 2009

Practice Areas

• Franchise, Chair
• Electronic Discovery Resources, Co-Chair
• Litigation
• Alternative Dispute Resolution
• Shareholder Disputes
• Securities
• Non-Competes & Trade Secrets
• Commercial Law
• Life Sciences
• Energy
• Renewable Energy

Representative Experience

• Franchisees vs. Franchisor (Minnesota State Court): Effectively negotiated resolution of multi-franchisee dispute, prior to declaratory judgment/preliminary injunction hearing, thus saving client significant resources that litigation would have consumed. Case involved multiple franchises with overlapping ownership.
• Franchisor vs. Defaulting Franchisee (Pennsylvania): Counseled franchisor on audit and termination rights against franchisee who refused to comply with host retail exit requirements; successfully came to resolution without resort to litigation.
• Customer vs. Retail Company (Illinois Federal Court): Obtained dismissal of franchisor who was sued by a franchisee’s customer, who sought class action status, when the franchisee printed too much credit card information on a credit receipt. Dismissal obtained prior to discovery phase of case.
• Franchisor vs. Defaulting Franchisee (California): Counseled franchisor on audit and immediate termination rights against franchisee who sold non-system-branded goods but passed them off as being the franchisor’s brand in violation of trademark license and franchise agreement.
• Franchisor vs. Trustee for Bankrupt Franchisee (Southeastern United States): Counseled franchisor through bankruptcy of sole shareholder of multiple franchisees located in multiple states. Walked franchisor through the transfer process post-bankruptcy, including renewal of pertinent personal guaranties, acquisition of pertinent new guaranties, and drafting/negotiation of transfer documents for complex restructuring by franchisees.
• Franchisor Vicarious Liability: Advised client on development of system to deal with potential public relations crises at corporate-owned retail locations and at franchised locations. Advice included how to focus control of public relations at franchisor’s corporate offices while avoiding potential liability for incidents occurring at franchised locations. 
• Franchisor vs. Terminated Franchisee (California): Successfully avoided a threatened emergency injunction after terminating a franchisee who breached an in-term non-competition agreement.
• Franchisor-Host Retailer Relationships: Negotiated with host retailer to avoid disclosure and discrimination violations when host retailer tried to impose discriminatory fee on prospective franchisee contrary to terms of host retailer agreement and state’s antidiscrimination statute. 

Selected Publications & Presentations

• “A Short Course on Contracts,” co-presented with Rhona E. Shwaid, Minnesota CLE Small Business Conference, November 30, 2011
• “Privacy in the Cloud – Who is Protected by the Electronic Communications Privacy Act?,” FredALERT: Electronic Discovery Resources, October 2011
• “Pitfalls of Electronic Privilege Review,” October 2011
• “Document Preservation: Toeing the Attorney-Client Privilege Line,” October 2011
• “When Your Facebook ‘Wall’ Comes Tumbling Down,” April 2011
• “E-Discovery Preservation and Production: Sanctions Are on the Rise – Plan Well, or Watch Out!,” March 2011
• “Cloud Computing – Where’s My Data?,” March 2011
• Co author, “Spoliation of Electronic Evidence: A Judicial Boiling Point?”, Pretrial Practice & Discovery, Volume 18, Number 4, Summer 2010, American Bar Association
• “Minnesota Contracts Update,” co-presented with John Satorius and Leah Janus, Minnesota CLE Webinar, June 22, 2010
• Minnesota Contracts Deskbook (Minnesota CLE), 2010 co-Editor with John Satorius
• “Covering Your Assets in the Age of Employee Mobility – Steps Employers Can Take To Keep Trade Secrets a Secret,” Fredrikson & Byron Trade Secrets Seminar, February 17, 2010
• Presenter, “The Life of a Lawsuit: Session 2, Discovery Phase,” MNACCA Series, July 16, 2009
• “Tips for Disputes Involving the Valuation of a Closely-Held Company,” co-authored with Jim Dorsey, May 2009
• “Creating Enforceable Noncompete Agreements with Bank Officers and Other Key Employees,” co-authored with Mary Krakow and Sarah Gibbs, Summer Associate, Banking & Law Journal, March 2009
• “Creating Enforceable Noncompete Agreements with Bank Officers and Other Key Employees,” co-authored with Mary Krakow and Sarah Gibbs, Summer Associate, FredNEWS: Bank & Finance, September 2008
• “E-Discovery: Myth, Monster or Both?,” Legal Link, June 2008
• “Long Awaited FTC Rule: Highlights of the Revisions,” co-authored with David P. Weber, Fredrikson & Byron Flash Focus, June 2007
• “Discovery in Shareholder Litigation: What’s Fair Game? (Getting the Goods While Defending Your Honor),” co-authored with Sten-Erik Hoidal, MSBA Continuing Legal Education 2007 Business Law Institute, May 2007
• “Discovery Strategies and Tactics in Shareholder Litigation: What’s the Game Plan?” co-authored with Sten-Erik Hoidal, Minnesota State Bar Association Continuing Legal Education, December 2005

Professional Activities

• Minnesota CLE: Contracts Deskbook, co-editor, 2010-present
• Minnesota State Bar Association: Civil Litigation Section – Governing Council (2003-2008) and current Member
• American Bar Association: Litigation Section, Pretrial Practice & Discovery Committee, Franchise Forum Member
• Ramsey County Bar Association: Member
• Minnesota Women Lawyers: Member
• Children’s Law Center: Foster Care Advocacy Project
• Project for Pride in Living: Board of Directors (July 2011-present); Budget and Audit Committee Member (April 2010-present)
• Prior to practicing law, Emily worked in corporate finance for a Fortune 100 company. Her experience included exposure to all aspects of finance for two of the company’s heavy manufacturing businesses.

Honors & Distinctions

• Named a Rising Star, Minnesota Law & Politics, 2003-2007
• NAWBO Women of Achievement winner, 2003
• Harvard Law School Ames Moot Court Competition, winner and oralist, 1993