Zarco, Einhorn push limits on legal creativity

Franchise Times
Back to Hamburgers 101: MICHAEL ROBERTS of McDonald’s USA
June/July 2003
By Nancy Weingartner

A word of caution to franchisor out there: Don’t tick off Robert Zarco. The last guy who did that by publicly blame Zarco for his company being in an arbitration upped his cross-examination time by the fiery Cuban from three to 14 hours.

“I’m a man of principle,” the 43-year-old Zarco says. “Don’t be arrogant with me.”

After the offending comment, Zarco went back to his office and he and law partner Robert Einhorn started going over their already carefully detailed and cataloged paperwork from 5 p.m. to 4 a.m.

Their client, Jeff Johnson, who had gotten to know his attorneys’ style extremely well during the 20 months the arbitration consumed his life, watched in wonderment as Zarco, sitting cross-legged on the floor munching Oreos, sifted through boxes looking for additional ammunition to use against his nemesis.

Make no mistake, Zarco is a force to be reckoned with. His firm has had clients in almost every state and 20 countries and he’s gone up against 250 different franchise systems.

Of the 14 cases the panel discussed at one of the seminars he attended at the recent International Franchise Association Legal Symposium, “11 were ours,” Zarco says, proudly.

He made his reputation on the Scheck v. Burger King case, which set a precedent in franchising for many, many years.

“It's a great feeling to represent the little guy,” Zarco enthuses. “My role is to preserve franchising in the way I believe it was originally founded.”

Franchisees love him, franchisors fear him.

Miami-based Zarco, Einhorn & Salkowski (all three partners’ first names are Robert, but Zarco claims that’s not an employment requirement) has built a reputation over years of being a formidable foe of franchisors. Ninety percent of their business is litigation, Einhorn says.

“They’re a great team,” Johnson says of the two, “because Zarco is Zarco (more of a showman) and Einhorn is like a machine, so focused and intense and organized.”

The two attorneys’ cross-examination styles also differ. During a 18-day stint with an arbitrator, Johnson recalls Einhorn’s cross-examination of a witness was getting to the heart of the matter. Zarco was sitting on one side of Einhorn and Johnson on the other. They kept passing yellow sticky notes to Einhorn on points to make. As Johnson and Zarco got more and more excited they kept inching their chairs closer and closer to Einhorn, until “we were practically sitting on his lap.” Ever the cool cucumber, Einhorn turned to Zarco and said the lawyerly version of “back off, I’m handling it.” Zarco bounced his chair happily back into place and the notes stopped.

Einhorn admits Zarco is the most dynamic of the duo, but is quick to add that Zarco would probably reply that Einhorn is the “toughest one when it comes to settling cases or in court.”

“Bob’s a diligent pursuer of evidence; “He’s all business, he doesn’t like to waste time.”

The two work well together, so well, in fact, that Johnson says it’s like they can read each other’s mind. He observed the two working in tandem so that all Zarco had to do was start the thought and Einhorn had pulled the back-up document from the massive collection of boxes that the team needed a hotel luggage car to tote around.

MOTIVATING FACTORS

Zarco didn’t set out to be a champion of the little guy, so where did the fire in his belly come from?

“When I was 7, maybe 10, I drove down the street with my parents and I told my dad that I wanted to own a McDonald’s or a Burger King so I could be rich,” Zarco says. After his first franchise case—

Scheck—he says he discovered that the “reality is so different from the perception.”

“I believe franchising is a great way to do business, it just needs to be fair,” he says.

Einhorn also didn’t set out to be the little guy’s champion. A native of Cleveland, he attended the University of Wisconsin where he graduated with an accounting degree. He soon found being a CPA was “dry”, and decided to go to law school. And, as long as he was changing attitudes he might as well change latitudes, and headed to the Jimmy Buffet-grandized state of Florida for law school.

He clerked for a criminal defense attorney that was also a “champion of the little guy.” The other side, however, was an entity with even more resources at the ready—the government.

Ironically, both partners have solid financial backgrounds. Zarco has a degree in Economics from Harvard and 80 percent of the coursework done on an MBA. “I understand numbers like nobody does,” he says.

Zarco has come with a flexible fee arrangement so that franchisees determine up front if they can afford the fight. “I do hybrids,” he says of his fee arrangements. “As long as it makes sense and it gets the franchisee to game day.”

Taking a case on partial contingency means they believe they can win the case, but it also means that they’re paid for getting results.

Both attorneys are on the road more often then they’re at home.

It’s Einhorn’s enthusiasm for what he does that keeps him energized, even when he’s spent so many nights in hotels across the country he keeps forgetting his room number.

Now that he’s about to become a father for the second time—his wife, Brett, a freelance writer, is expecting another daughter in July—Einhorn is thinking about cutting back on his traveling. “I’m taking a different role, I’m doing more of the marketing,” he says.

Zarco, though, will never give up his role. “As a trial lawyer I feel as comfortable in court as I am in my own home,” he says. “All the big depositions I take; all the trials I handle,” he says, adding that many clients put that in his contract with them.

“I work hard; I party hard,” the flamboyant Zarco says. “But I don’t drink and I never smoked. I’m on a natural high.

Partying hard to him means being the first one on the dance floor. He’s won several contests in Latin and American dancing. “I’m not a shy person,” he reiterates, as if it’s necessary.

He’s invested his money wisely in real estate and is in the process of building a large house on the beach in Miami that is three doors down from Jennifer Lopez’s, two doors down from the Bee Gee’s Robin Gibbs, four down from Barry Gibbs and 15 from Ricky Martin. His garage will have space for his car collection which includes a 2002 Bentley (with just 2,000 miles) and a Mercedes convertible (with 12,000). The miles on his airline accounts, however, are staggering.

But, here’s another side of Zarco many people don’t see. “Every take off, every landing. I call my mom and dad, no matter what time, even on connecting flights—every single time—so they won’t worry about me,” he says.