Michael J. Lockerby

Partner

Overview

Michael J. Lockerby is a partner with Foley & Lardner LLP and is co-chair of the Distribution & Franchise Practice and a member of the Appellate, Intellectual Property Litigation, Antitrust, and Privacy, Security & Information Management Practices and the Automotive and Food & Beverage Industry Teams. He is former co-chair of the firm’s Washington, D.C. Litigation Department.

For the past 34 years as a trial lawyer, Michael has been on the cutting edge of the intellectual property, antitrust, business tort, and franchise law issues that face all manufacturers and other suppliers whose products are sold through independent dealers, distributors, and franchisees. He has appeared throughout the country in state and federal trial courts and before arbitrators and other ADR providers.

On behalf of a number of clients, Michael has led the nationwide litigation of system-wide issues. Such issues include the consolidation of overlapping distribution networks, the rebranding of trademarked products formerly distributed under another brand, the enforcement of exclusive dealing requirements, "encroachment claims" raised by direct sales and Internet marketing, implementing new franchise system standards, and issues raised collectively by franchisee and dealer associations. The many industries in which Michael has litigated such issues include computer hardware and software; telecommunications and other high technology products; alcoholic beverages; construction, forestry, farm, utility, industrial, and outdoor power equipment; motor vehicles; petroleum marketing; and franchisors of restaurants, hotels, personal and professional services, among others.

Based on his experience as a litigator, Michael also helps clients minimize litigation exposure. He regularly negotiates and drafts license, franchise, and distribution agreements for use domestically and overseas. He has helped numerous clients comply with the franchise disclosure and registration laws at both the federal and state level in the United States and with their overseas counterparts.

Michael was named to BTI Consulting Group’s coveted Client Service All Star Team in 2016. This honor is bestowed upon individual attorneys who deliver outstanding client service according to corporate counsel interviewed at large organizations with $1 billion or more in revenue. Michael has been Peer Review Rated as AV® Preeminent™, the highest performance rating in Martindale-Hubbell's peer review rating system; was named a "Legal Eagle" by Franchise Times magazine; and is listed in The International Who’s Who of Franchise Lawyers (2006 – 2009). He has also been voted among "The Legal Elite, Virginia Top Lawyers" by Virginia Business Magazine in the areas of civil litigation and information technology/intellectual property. Michael is also rated as one of the top Franchising attorneys in the nation by Chambers USA (2008 – 2017) and was selected by his peers for inclusion in The Best Lawyers in America© since 2013 for his work in franchise law. In addition, he was selected for inclusion in the 2013 - 2016 Washington, D.C. Super Lawyers® lists for his work in business litigation, franchise/dealership, and intellectual property litigation.

Before joining Foley, Michael was a partner with Hunton & Williams LLP in Richmond, Virginia. Michael earned his J.D. from the University of Virginia School of Law in 1984 and his B.A. in 1978 from the University of North Carolina. Before attending law school, he served as a legislative assistant to U.S. Senator John Heinz from 1979-81, and was a research assistant to the Joint Economic Committee of the U.S. Congress from 1978-79.

Michael is admitted to practice in the District of Columbia. He is also admitted to practice before the U.S. Supreme Court; the Virginia Supreme Court; the U.S. Court of Appeals for the Federal, Third, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits; the U.S. District Court for the Eastern and Western Districts of Virginia, the Eastern Districts of Michigan and Wisconsin, and the District of Columbia.

His professional affiliations include:

  • Advisory Board, World Internet Law Report, World Licensing Law Report, BNA International, London
  • Editorial Board, Franchise Law Journal, ABA Forum on Franchising
  • Board of Governors, Virginia State Bar Antitrust, Franchise and Trade Regulation Section (1991-98; chair 1997-98)
  • Board of Governors, Virginia State Bar International Practice Section (1994-98)
  • Board of Governors, Virginia State Bar Young Lawyers Conference (1988-92)
  • Chair, Distribution & Franchise Committee (f/k/a Franchise & Dealership Committee, ABA Section of Antitrust Law (1996-99)

Michael is a frequent author on franchising and distribution issues. His many publications include:

  • “Leegin’s 10-Year Checkup: No Big Changes in the Marketplace,” Law360 (June 28, 2017)
  • "Franchise Termination Restrictions: A Guide for Practitioners and Policy Makers," The Antitrust Bulletin (Winter 1985)
  • "Avoiding Collisions With Franchise Laws on the Information Superhighway," The Computer Lawyer (October 1998)
  • Editor-in-chief of "The Franchise Trade Secrets Handbook" (2000) and the "Franchise Law Bibliography" (1993), published by the ABA Forum on Franchising
  • Editor of "Franchising (& Distribution) Currents," published by the ABA Franchise Law Journal (Spring 2000)
  • "Revisionist History? Kicking the Tires of J. Michael Dady’s Market Withdrawal Cases," ABA Franchise Law Journal (Spring 2002)
  • "Can Franchise Consultants Practice Law?," ABA Franchise Law Journal (Summer 2002)
  • "The More, the Merrier? New York Federal Court Refuses to Dismiss Replacement Dealers Named as Co-Defendants," ABA Franchise Law Journal (Fall 2003)
  • "Market Withdrawal: Judges and Juries Aren’t Buying What Terminated Dealers Are Selling," ABA Franchise Law Journal (Winter 2003)
  • Editor of "Franchising (& Distribution) Currents," published by the ABA Franchise Law Journal (Spring 2004)
  • "Looking Anew at Accounting Duties," New York Law Journal (April 2004)
  • Editor of "Franchising (& Distribution) Currents," published by the ABA Franchise Law Journal (Summer 2004)
  • Editor of "Franchising (& Distribution) Currents," published by the ABA Franchise Law Journal (Winter 2005)
  • Editor of "Franchising (& Distribution) Currents," published by the ABA Franchise Law Journal (Spring 2006)
  • "Lessons for Intellectual Property Owners," Foley Legal News Alert: Antitrust (August 22, 2006)
  • Lessons for Intellectual Property Owners," IP Law360 (August 31, 2006)
  • "Federal Legislation Would Invalidate Arbitration Clauses in Franchise, Consumer, and Employment Agreements," Foley Legal News Alert: Distribution & Franchise (July 25, 2007)
  • "Supreme Court Abandons Century-Old Per Se Rule Against Resale Price Maintenance," Foley Legal News Alert: Antitrust (July 28, 2007)
  • "Franchising After Leegin: A License to Fix Prices?," Franchise Law Journal (September 24, 2007)
  • "Arbitration Fairness Act of 2007: A Trial Lawyer’s Dream, A Client’s Nightmare," Franchise World (November 30, 2007)
  • "‘Mixed Signals’ From Washington? Senators Propose Restoring Automatic Treble Damages for Manufacturers and Franchisors That Prohibit Discounting," Foley Legal News Alert: Distribution & Franchise (December 5, 2007)
  • "Supreme Court Limits Scope of Judicial Review of Arbitration Awards," Foley Legal News Alert: Distribution & Franchise (April 3, 2008)
  • "Dealer’s Claim of Antitrust Conspiracy to Fix Minimum Resale Prices Survives Summary Judgment Notwithstanding Supreme Court’s Decision in Leegin," Foley Legal News Alert: Distribution & Franchise (June 25, 2008)
  • "Legislation Invalidating Arbitration Clauses in Franchise, Employment, Auto Purchase and Lease, and Consumer Agreements Makes Headway in U.S. House of Representatives," Foley Legal News Alert: Distribution & Franchise (July 25, 2008)
  • "‘Fairness’ Looms In New Congress," The National Law Journal (November 24, 2008)
  • "Seventh Circuit Decision in Landmark ‘Market Withdrawal’ Case Eases Burden on Manufacturers and Franchisors Seeking to Consolidate Branded Distribution Systems," Foley Legal News Alert: Distribution & Franchise (March 27, 2009)
  • "Third Circuit Ruling Calls Into Question FDA’s Position on Whether High-Fructose Corn Syrup is ‘Natural,’" Foley Legal News Alert: Food Industry (September 2, 2009)
  • "The FDA Stance on High-Fructose Corn Syrup," Co-author, Product Liability Law360 (October 15, 2009) 
  • "Deconstructing Franchisee Claims for ‘Constructive’ Termination and Nonrenewal – Implications of Supreme Court Petroleum Marketing Decision for Distribution and Franchise Generally," Foley Legal News Alert: Distribution & Franchise (March 25, 2010)
  • "When Are Class Disputes Properly Submitted to Arbitration?," Foley Legal News Alert: Litigation (April 29, 2010)
  • Co-author, "Avoiding and Managing System-Wide Litigation in International Franchising," International Journal of Franchising Law (October 20, 2010)
  • "Fourth Circuit Reverses U.S. District Court, Instead Allowing Franchisor to Recover ‘Future Damages’ From Terminated Franchisee," Foley Legal News Alert: Distribution & Franchise (May 2, 2011)
  • Co-author, Trade Secrets Chapter, Intellectual Property Handbook (2d ed. 2016), ABA Section Forum on Franchising and Section of Intellectual Property Law
  • Editor-in-chief, The Trade Secret Handbook: Protecting Your Franchise System's Competitive Advantage, ABA Forum on Franchising

Michael has also presented at numerous seminars and meetings. These include:

  • "Dealer Termination and Resale Price Maintenance," Advanced Distribution Workshop: Antitrust and Advertising Issues, ABA Section of Antitrust Law (September 1999)
  • "Challenges of the Internet for Agency, Distribution, and Franchising Agreements: Impact of New Technologies on Traditional Sales Methods," International Bar Association, Zurich, Switzerland (March 1999)
  • "Intellectual Property Protection in Cyberspace," Offshore e-Commerce Seminar, IBC USA Conferences, Inc. (New York City – September 1999; Miami – February 2000)
  • "Judicial Update," presented at the International Franchise Association Annual legal Symposium (May 2005)
  • "The Pros and Cons of Arbitrating Franchise Disputes," co-author, presented at the American Bar Association 28th Annual Forum on Franchising (October 2005)
  • "The ‘F’ Word: Are Your Company’s Dealers, Distributors, or Licensees Protected By Federal and State Franchise Laws?" (speaker), presented at Drive Your Business Forward: Distribution & Franchise Law Update (moderator) (Washington, D.C. – January 24, 2008)
  • "Discriminatory Treatment Under the PMPA, Federal Antitrust Law, and State Law," Petroleum Marketing Attorneys’ Meeting (Washington, D.C. – April 1, 2008)
  • "Intellectual Property in Distribution & Franchise Agreements: A License to Fix Prices?," 17th Annual Law of Product Distribution & Franchise Seminar (Milwaukee, Wisconsin – May 6, 2008)
  • "Lessons Learned in Litigation: Franchise Agreement Drafting," International Franchise Association Annual Legal Symposium (Washington, D.C. – May 11, 2008)
  • "Franchising in the South Asian Community," Fifth Annual North American South Asian Bar Association Convention (Chicago, Illinois – June 26, 2008)
  • "The ‘F’ Word: Are Your Company’s Dealers, Distributors, or Licensees Protected By Federal and State Franchise Laws?" (speaker), presented at Drive Your Business Forward: Distribution & Franchise Law Update (moderator) (Palo Alto, California – September 25, 2008)
  • "The ‘F’ Word: Are Your Company’s Dealers, Distributors, or Licensees Protected By Federal and State Franchise Laws?" (speaker), presented at Drive Your Business Forward: Distribution & Franchise Law Update (moderator) (Irvine, California – September 26, 2008)
  • "Litigating a Claim Under the Petroleum Marketing Practices Act (PMPA)," ABA Annual Forum on Franchising (October 16, 2008)
  • "Making Lemonade Out of Lemons: How to Consolidate Distribution Without Breaking the Litigation Bank," 18th Annual Law of Product Distribution & Franchise Seminar (Milwaukee, Wisconsin – May 13, 2009)
  • "Valuation Framework" (moderator), Navigating Uncertainty: Patent Values and the Evolving IP Market Webinar Series presented with Grant Thornton LLP (May 26, 2009)
  • "Valuation of IP in a Business Transaction" (moderator), Navigating Uncertainty: Patent Values and the Evolving IP Market Webinar Series presented with Grant Thornton LLP (June 25, 2009)
  • "Valuation of IP in Litigation" (speaker), Navigating Uncertainty: Patent Values and the Evolving IP Market Webinar Series presented with Grant Thornton LLP (July 30, 2009)
  • "Preliminary Injunctive Relief to Protect Trade Secrets and Enforce Non-Competes: Is It Possible to Put The Toothpaste Back in the Tube?," (speaker) Trade Secret & Noncompete Agreements: What You Need to Know Web Conference Series (December 2009)
  • “Trade Secret Issues in the Automotive Supply Chain,” Original Equipment Suppliers Association Regional Meeting in Chicago for Auto Suppliers: Strategic Issues & Industry Forecasts (November 2011)
  • "Lessons Learned in Privacy Litigation," American Conference Institute's 11th Annual Legal & Compliance Forum on Privacy & Security of Consumer and Employee Information (February 2012)
  • “Keeping Your Company’s Trade Secrets from Becoming “Road Kill” on the Information Superhighway,” Original Equipment Suppliers Association Legal Corner (April 2012)
  • “The World Wide Web of Threats to Your Company’s Confidential Information: Lessons Learned in Trade Secret and Computer Crimes Litigation,” Foley’s 21st Annual Law of Product Distribution & Franchise Seminar (May 2012)
  • “Lost in Cyberspace? Best Practices for Maintaining Security on the Internet and in the Cloud,” Washington Metropolitan Area Corporate Counsel Association (September 2012)
  • "Protection of Franchise System Trade Secrets and Confidential Information, and Enforcement of Non-Disclosure Agreements in the Digital Age," ABA Forum on Franchising (October 2012)

Representative Matters

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Lead counsel for automotive division of RMA pursuing breach of contract, Lanham Act, computer crime, and related claims against former president of subsidiary in Afghanistan. Remaining claims scheduled for bench trial in Detroit the week of March 27, 2017.
Served as lead counsel for a U.S. intelligence agency contractor pursuing trade secret and related claims against competitor and disloyal former employees. At the preliminary injunction hearing, following bench ruling that the plaintiff was likely to succeed on the merits, the defendant stipulated to consent order granting the preliminary injunctive relief sought. On December 21, 2016, after seven days of trial, obtained jury verdict for three times the damages sought plus award of attorneys’ fees.
Represented Biotech Co. Ltd. in a trade secret dispute between Taiwanese medical device manufacturers. Case scheduled for jury trial in October 2016 but settled on very favorable terms for client shortly before trial.