If you are facing a dispute with your franchisor, there is a good chance that you will need to submit to arbitration in order to obtain a resolution. Why? Because arbitration is the preferred dispute resolution method among franchisors, and franchise agreements commonly include “mandatory arbitration” clauses which require franchisees to go to arbitration instead of seeking to enforce their rights in court. What is Arbitration? Arbitration is a form of alternative dispute resolution (ADR) that can in some ways be thought of as a “light” version of courtroom litigation. The process is still adversarial (unlike mediation, where the parties seek to work toward an amicable resolution), and a neutral third-party (either an arbitrator or a panel of arbitrators) still issues a binding decision based upon the evidence and arguments presented. The parties also still engage in discovery, although discovery is typically limited, and they still attend hearings at which their attorneys present arguments and question witnesses. However, arbitration moves at a faster pace than litigation, and as a result it is generally less expensive as well. Why Do Franchisors Prefer Mandatory Arbitration? Franchisors generally prefer arbitration for a number of reasons. Some of these reasons have to do with the controls they can exercise within the terms of their mandatory arbitration provisions, but others have to do directly with the nature of the arbitration process. Five of the top reasons that franchisors generally prefer mandatory arbitration include: Arbitration denies franchisees the right to a jury trial Franchisors can designate […]

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Franchisee Prevails Early on Covenant of Good Faith and Fair Dealing Claim By: Jeffrey M. Goldstein, Esquire  (202) 293-3947 One of the few tasks more daunting than trying to get Kant, Nietzsche and Plato to agree on a definition of ‘the good life’ is that of struggling to get two courts to agree on the legal meaning of the covenant of good faith and fair dealing. Indeed, some Courts vociferously object to using the phraseology itself, arguing that the word ‘covenant’ must be replaced by the word ‘duty.’ Other courts refuse to allow such a claim to be prosecuted unless the claimant also pleads a concomitant and redundant breach of an explicit provision in the contract. And, a few other courts adamantly deny the existence of the covenant of good faith and fair dealing. This energetic jurisprudential fracas among courts regrettably has not been quelled by the scores of scholarly articles that have been written on the subject; indeed, the prolific academic commentaries have done little more than throw gasoline on the intense intellectual blaze.  Not surprisingly, this existential inferno has scorched, and continues to char, many franchisees and dealers.  However, despite the terrible historical track record of franchisees that have tried to use the covenant of good faith and fair dealing in litigation against their franchisors, from time to time a franchisee does have success using the theory. One such franchisee is the auto dealer plaintiff in a case now pending before the United States District Court for the […]

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Buying a franchise is a process. From the time you formulate the idea to become a franchisee to the time you sign the franchise agreement, you will go through a number of steps – some more complicated than others – that are all critical to ensuring that you open your doors with the best possible chance for success. If you are considering buying a franchise, here is a brief overview of what you can expect along the way: Steps in the Franchise Buying Process Step #1: Get in Touch with the Franchisor The first step is to get in touch with the franchisor. This could be through the franchisor’s website, over the phone, or at an expo or other franchise event. You will likely be asked to complete an application, and at this point you may also receive a copy of the franchisor’s Franchise Disclosure Document (FDD). By law the franchisor is required to provide a minimum 14-day waiting period before you sign a franchise agreement, and as a result you will likely be asked to sign two copies of a standard receipt page confirming the date on which you received the FDD. Step #2: Hire an Attorney to Review the Franchise Agreement and FDD Once you receive the FDD (which will include a copy of the franchise agreement), you will want to give these documents to an attorney to review. For more information on choosing an attorney to review your franchise agreement and FDD, we encourage you to read: […]

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As a struggling franchisee, you might think that your franchisor signaling its intent to terminate your franchise agreement represents the end of a long nightmare. Unfortunately, in many cases, it is just the beginning. This is because, with increasing frequency, franchisors are including “liquidated damages” clauses in their franchise agreements. A typical liquidated damages clause may look something like this: Within 30 days of the Franchisor’s termination of this Agreement, the Franchisee will pay the Franchisor, as liquidated damages and not as a penalty, an amount equal to three (3) times the royalty fees payable either (i) during the last twelve (12) months of the Franchisee’s active operations, or (ii) the entire period that the Franchisee has been in business, whichever is the shorter period. In plain English, what this says is that, 30 days after the franchisor terminates the franchise agreement, the franchisee must pay the equivalent of three years’ royalty fees to account for the royalties that the franchisor theoretically would have earned had it not terminated the agreement. This is true even though the franchisor is electing to terminate the agreement—presumably because the franchisee has been unable to meet its royalty obligations while actually trying to operate the business. Sounds fair, right? Unfortunately, many, many franchisees have liquidated damages clauses in their agreements, and several courts around the country will enforce these clauses without regard to the often-devastating financial effects they have for terminated franchisees. Challenging the Enforceability of a Liquidated Damages Clause That said, there are […]

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When considering a franchise opportunity, it is critical to conduct your due diligence. Buying a franchise is a substantial, long-term investment, and your success or failure will hinge in large part on the actions, omissions and obligations of your franchisor. Franchise due diligence is an involved process that takes time, effort and a commitment to finding real answers instead of simply trying to validate your interest in the franchise. The following is a list of 10 examples of steps prospective franchisees can take to learn more about their potential franchise opportunities: Franchise Due Diligence: 10 Steps 1. Talk to Current Franchisees. How are their businesses doing? How long did it take them to become profitable? How supportive is the franchisor? Current franchisees can provide invaluable information to help you decide whether to pursue a particular franchise opportunity. 2. Talk to Former Franchisees. Former franchisees are a key source of information as well. Why did they leave the system? Would they do it again if they had the chance? What is their opinion of the franchisor? 3. Visit the Franchisor’s Headquarters or Company-Owned Location. The in-person visit is an important step in the due diligence process. You will want to meet the franchisor’s key personnel in person, and see if you think you will be a good fit for the way they do business. You should also try to visit several franchised locations. 4. Review the Franchisor’s Franchise Agreement and FDD. While you should hire an attorney to review the franchisor’s […]

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