While “refranchising” may sound like a unique and innovative concept, in reality all it means is that a franchisor has decided to sell its company-owned outlets to independent owners. Franchisors ranging from startups seeking to transition from company ownership to McDonalds and other global brands have undertaken refranchising campaigns with varying degrees of success; and, for prospective franchisees, buying an existing company-owned outlet involves some unique legal and business considerations. First and foremost, it is important not to lose sight of the fact that there is a reason why the franchisor has chosen to refranchise. If the franchisor doesn’t want to own its stores or restaurants, why should you? While there may be a reasonable explanation for the sell-off (such as unloading unmanageable overhead or capital expenses), as a prospective franchisee, you need to feel confident that you are not buying a sinking ship. Some other legal considerations for buying an existing company-owned outlet include: 1. Initial Investment Aside from the purchase price, you are still likely to face a sizable initial investment. Franchisors still typically charge initial franchise fees to “conversion” franchisees, and you may also need to fund remodeling expenses, upgrade costs, and other capital expenditures. You will likely incur some of the other startup costs listed in Item 7 of the Franchise Disclosure Document (FDD) as well; and, even though you are buying an existing business, you will still likely want to establish a sizable capital reserve. 2. Royalties and Advertising Fees When the franchisor operated the […]

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According to a recent article on Forbes.com, approximately 300 new franchise concepts pop up every year. Of these, nearly a third (30.6 percent) sell zero or one franchise within their first four years of franchising, and less than half (42.2 percent) expand to 26 or more outlets five years from the issuance of their first Franchise Disclosure Document (FDD). So, is buying into a startup franchise too risky? Or, if the concept proves successful, can it provide the sweet spot that many prospective franchisees are looking for – a recognized brand and reliable system support without the intra-brand competition and impersonality of a behemoth franchise system? As with most things, it depends. The statistics certainly seem to bear this out, and they also shed light on just how much franchisees’ success can be dependent upon their franchisor’s efforts to build the system (despite the disclaimers in their franchise agreement that say otherwise). In order for the brand to grow, you need the franchisor to sell franchises. If you are the first franchisee to buy, you could also be the last; or, you could be an early adopter who gets to benefit from your ambition. Legal Considerations for Buying into a Startup Franchise Regardless of the franchisor’s experience, buying a franchise is a risky investment that requires thorough due diligence and careful planning and preparation. From a legal perspective, here are some of the key factors to consider: The Franchisor’s Expansion Plans – If you will be one of the first […]

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Forbes.com recently published an article titled, “Laid Off? Why Now Could Be the Best Time to Franchise.” The article discusses some of the potential benefits of franchise ownership, and it provides an introduction to some of the financial considerations involved in choosing between various franchise opportunities. Losing a job is an event that causes many people to re-examine their priorities; and, to be sure, buying a franchise is one option that is available. However, before committing to any particular franchise opportunity (or franchise ownership in general), it is important to critically assess your goals, skills and financial circumstances in light of the realities involved. 1. Buying a Franchise is a Long-Term Commitment Buying a franchise typically means committing to a contractual relationship for two, three, five or ten years. Even if you find a work-from-home franchise that allows you to open for business relatively quickly, buying a franchise is not a short-term solution to being out of work. The decision to buy a franchise should be made based upon a sincere desire to run your own business within the confines of the franchise structure and should not be triggered by any one single event. 2. Buying a Franchise Requires Access to Capital When you buy a franchise, you need to pay the franchisor’s initial franchise fee, you need to cover the expenses involved in establishing your business (which can range from tens of thousands to millions of dollars), and you need to have a capital reserve to fund your business […]

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The International Franchise Association (IFA), the “world’s oldest and largest organization representing franchising worldwide,” recently announced a partnership with the National LGBT Chamber of Commerce (NGLCC). According to the IFA, the goal of the partnership is, “to further the organizations’ shared missions of creating business opportunities for all Americans and cultivating diversity and inclusion within the franchising industry . . . [and the] partnership is NGLCC’s first programmatic partnership with a trade association.” As a result of the partnership, the IFA will also be recognized as a Trade Association Sponsor by the National Business Inclusion Consortium (NBIC), which is a coalition of diverse business organizations including the NGLCC, the United States Black Chambers, Inc., Disability:IN (formerly USBLN), the United States Hispanic Chamber of Commerce, the United States Pan Asian American Chamber of Commerce, WEConnect International, and the Women’s Business Enterprise National Council. In a statement, NGLCC President Justin Nelson stated that the partnership will “bring [] LGBT franchise owners one step closer to having their voices heard and securing the LGBT business community an equitable seat at the table.” About the International Franchise Association (IFA) The IFA is perhaps the most well-known membership organization in the franchising industry. It works to promote the interests of the franchise industry through education, advocacy and government relations, and its members include franchisors, franchisees and suppliers. More information can be found at franchise.org. About the National LGBT Chamber of Commerce (NGLCC) The NGLCC is an advocacy organization that promotes diversity and inclusion for lesbian, […]

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If you love working with children and want to be your own boss, buying a child-related franchise may seem like the perfect fit. After all, who wouldn’t want to hit the ground running with a recognized brand and a business format that has proven effective at tens – if not hundreds – of locations around the country? While buying a franchise certainly can offer these benefits, not all franchise opportunities are created equal, and owning a franchise presents certain unique challenges as well. Providing child-related services also presents some unique risks; and, as a franchisee, you can expect to bear full responsibility if something goes wrong. If you are thinking about buying a child-related franchise, here are some of the key legal considerations you will want to keep in mind: 1. Liability (and Insurance) Working with children or providing services to children inherently presents liability risks that are not present for other types of businesses. Children cannot legally waive liability, so you will need to make sure their parents do so on their behalf. While your franchisor should provide a waiver form that contains the necessary language: (i) this language may or may not be enforceable in your state; and, (ii) it will be up to you to ensure that all parents sign before dropping their children off at the door. As a result, you should have the waiver form reviewed by an attorney, and you should be sure that you have a system in place for securing parent signatures […]

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Should Franchisees Foot the Bill for Franchise Remodeling and System Standards Modifications? By: Jeffrey M. Goldstein Franchise remodeling disputes have recently littered the franchise litigation landscape; but this is nothing new. The source of conflict in franchise remodeling disputes is not the ‘control’ issue (e.g., whether franchisees, not franchisors, should exercise final control over the type and amount of the franchisee’s business investments). Instead, the essence of the discord (at least from a static franchisee perspective) is whether a proposed or required remodeling is ‘worth it’ from a dollars and cents point of view. No more, no less. This same conflict that underlies remodeling disputes appears repeatedly in the franchise arena and also undergirds disputes associated with all significant franchise system modifications. Some of the more notable franchise system modifications that regularly give rise to disputes and litigation include menu item changes, new price ‘value programs’, price caps or maximum pricing, distribution channel supplementation, new computer system swaps and new marketing programs. If franchisees were able to trust the business decision-making acumen, motivations and goals of their franchisors, clashes regarding remodeling, like most other significant franchising disputes, would tend to be a ‘non-issues.’ And, of course, if franchisors had a track record of making globally rewarding investment decisions, such trust, as well as an efficient means for resolving breaches of that trust, would already exist. Most franchisees, to the extent they are good businessmen, merely attempt to ensure that each of their franchise-related investments – not just remodeling – reaps […]

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