Although indemnification clauses are ubiquitous in the franchise industry, indemnification is a legal concept that few franchisees, franchisors and even franchise attorneys truly understand. This is unfortunate, because it leads many franchisees to assume legal responsibility for liabilities that are far beyond their control, and it prevents many franchisors from negotiating reasonable concessions that would be no-brainers if they understood the terms of their own franchise agreements. What is Indemnification? So, what is indemnification? In its most basic form, indemnification is the oblation for one party to assume liability for a claim against another party. So, if Joe sues Jane and John has an obligation to indemnify Jane, if Joe wins, John is the one who is ultimately responsible. In a typical franchise agreement, the indemnification clause will look something like this: “Franchisee will fully indemnify and hold harmless Franchisor from and against any and all claims arising out of or relating to the Franchise, whether asserted during the term of the Franchise Agreement or after the Franchise Agreement expires.” This sounds reasonable enough, right? If a customer sues your franchisor for something that you did, doesn’t it make sense for you to be held liable? While a duty to indemnify may make sense in this particular scenario (although, even this may not necessarily be the case), there are plenty of other scenarios where the franchisor should be the one to indemnify. Most Franchise Agreement Indemnification Clauses are Overly Broad While you will be the face of your franchise and, […]

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All franchise opportunities present certain legal issues. From your obligation to pay royalties to the franchisor’s right to terminate your franchise agreement, virtually all aspects of the franchise relationship have legal implications. In certain sectors, the nature of the business can give rise to legal concerns as well. Senior care is one of these sectors. What are Some Potential Legal Risks for Senior Care Franchise Owners? Whether you are considering an in-home care franchise, a medical staffing franchise, a franchise for a skilled nursing facility, or any other type of franchise focused on serving the elderly, it is important to have a clear understanding of the potential legal risks involved. Along with conducting your due diligence and negotiating your franchise agreement, this also means addressing the legal issues associated with: 1. Lease Negotiations If you will be leasing a senior care facility or administrative office space, it will be important to put as much effort into negotiating your lease as you put into negotiating your franchise agreement. Similar to franchise agreements, commercial lease agreements are often heavily one-sided; and, in addition to ensuring that you can use the space as you intend, you will also need to make sure that you have adequate protections so that you can remain in the space throughout the term of your franchise. 2. Hiring and Employment When hiring people who will be caring for seniors or who will have access to seniors’ places of residence, conducting adequate screening and background checks takes on heightened […]

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Each year, we publish numerous articles designed to help prospective and current franchisees gain insight into the franchise buying and ownership processes. 2018 was no exception. Here are 10 of our top articles from throughout the year: Top 10: Franchise News and Insights from 2018 1. Franchise Industry Statistics: Most-Popular Industries and Locations While buying a franchise requires a careful assessment of your personal skills, finances and interests, analyzing trends can also help you make an informed buying decision. We recently took a look at the most-popular franchise industries and the states with the most (and least) franchised businesses. 2. What Is the Universal Franchisee Bill of Rights? In this post for Blue MauMau, we provided our thoughts on the Universal Franchisee Bill of Rights and discussed some key takeaways for new and exiting franchisees. 3. FDDs, Franchise Agreements and Operations Manuals – What Do Prospective Franchisees Need to Know? There are three main legal documents that govern the franchise relationship: The Franchise Disclosure Document (FDD), the franchise agreement and the Operations Manual. In this article, we provide an introduction to each and discuss some of their key implications for franchisees. 4. What Does it Mean if My Franchise Agreement Requires “Mandatory Arbitration”? While arbitration is supposed to provide a level playing field, the reality is that “mandatory arbitration” clauses often heavily favor the franchisor. We explained why in this article from Summer 2018. 5. What Can You Really Hope to Negotiate in Your Franchise Agreement? When buying a franchise, […]

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All franchise agreements contain conditions of renewal. These are provisions that require the franchisee to satisfy certain requirements in order to extend its franchise rights beyond the end of the initial term. Common renewal conditions include an obligation to cure any outstanding defaults (i.e. pay any past-due advertising fund fees or royalties), an obligation to update to then-current system standards and an obligation to sign the franchisor’s then-current franchise agreement. For many franchisees, this last condition will be the only sticking point. They will be up-to-date on all aspects of their franchise, and they will be a solid profit center for the franchisor. But, in order to renew, they will still be required to sign a new agreement, which could have terms that are substantially different from those that currently govern their franchise. The Risks of Signing Your Franchisor’s “Then-Current” Franchise Agreement Why does this matter? Among other potential concerns, being forced to sign a new franchise agreement could mean: Agreeing to a higher royalty percentage or new royalty terms (i.e. a “fixed” or minimum royalty). Agreeing to a higher advertising fund contribution percentage. Agreeing to new requirements regarding suppliers, system standards and mandatory upgrades. Agreeing to new, less-favorable terms with regard to indemnification and dispute resolution. Agreeing to grant additional termination rights to the franchisor and to face additional obligations in the event of termination. Agreeing to even stricter conditions for subsequent renewals. Losing the benefit of terms that you negotiated in your original franchise agreement. With these potential […]

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Oral promises can be legally enforced, but good luck getting your franchisor to agree to something that it did not put in writing. Unfortunately, from the initial sales process through the waning moments of a franchisor-franchisee relationship, it is not unusual for franchisors and their representatives to say things knowing that they will be difficult (if not impossible) to ever prove in court. With this in mind, as a franchisee, it is important to get into the habit of getting things in writing. From negotiating changes to your franchise agreement (instead of relying on a sales representative who says, “Don’t worry about that, I’ve never seen us actually use that clause against a franchisee.”) to communicating via email when you have issues down the road, documentation can be your best friend. Follow up when you do not get answers, send confirmatory emails (i.e. “To confirm what we just discussed . . .”) and keep copies of everything you get in writing. Litigating Disputes Based on Oral Promises But, let’s suppose you are past the point of no return. Let’s suppose that you bought a franchise based upon oral representations that proved to be false, or that you are now facing potential termination due to your reliance on an oral promise – both of which are common scenarios. What legal options do you have available? 1. Proving the Oral Promise One option is to try to prove the oral promise. While this can be difficult, it is not always impossible. For […]

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Amazon has been taking business away from brick-and-mortar stores for years. Despite promoting the benefits of selling through its marketplace to small businesses, it is clear that Amazon (along with other online shopping platforms that offer fast shipping and easy returns) is increasingly becoming a threat to retail businesses that rely on a steady stream of customers to maintain profitability. But, even for franchisees who do not have to compete with Amazon for customers, there is another potential risk as well—particularly for those located near HQ2 and Amazon’s various shipping and fulfillment centers around the country: the risk of losing out on quality employees. According to a recent article on franchise news website BlueMauMau.org: “Mark Zandi, chief economist of Moody’s Analytics, pointed out in a conference call . . . that Amazon announced it was increasing its entry level wages to $15 per hour, which is more than double the federal minimum wage. ‘It is indicative of how tight this labor market is,’ said Zandi. “He anticipates that this will put increasing pressure on employers that employ lower skilled workers to also raise their wages. ‘I fully anticipate wage growth accelerating as we move to 2019.’” As Amazon and other companies start offering higher wages even at entry-level positions, franchisees who find themselves struggling to make payroll may face even greater struggles in the near future. Are Franchisees Hiring? Will They Be Hiring in 2019? However, even as wages trend upward (many states have minimum wages increases set to take […]

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The legal standard for determining when an entity may be considered a “joint employer” of another entity’s employees has been in a state of flux since the National Labor Relations Board’s (NLRB) Browning-Ferris ruling in 2015. While the NLRB reversed the Browning-Ferris decision late last year, the uncertainty over the past few years left a host of lingering questions, particularly in the world of franchising. To address these questions, the NLRB has been working on a set of regulations to help clarify when the joint employer standard should be applied. It recently released a first draft of its proposed regulations. The Joint Employer Standard in Franchising The proposed regulations start by defining what constitutes a “joint employer” (a definition that is notably absent from the current regulatory framework). As proposed: “[A]n employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction . . . [and] a putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.” However, with regard to franchising, the NLRB has taken the position that, “[f]ranchisors generally exercise some operational control over their franchisees, which renders the relationship subject to application of the [NLRB’s] joint-employer standard.” Additionally, as noted in a recent article on BlueMauMau.org discussing the draft rulemaking, the […]

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You have decided to buy a franchise. All that is left is to sign the franchise agreement and pay your initial franchise fee, and then you will officially own your own business. So, is it worth it to try to negotiate? Or, is it safe to assume that the franchise agreement is being offered on a “take it or leave it” basis? Unfortunately, over the past several decades, franchisors have honed the art of drafting one-sided franchise agreements. At the same time, franchise salespeople have come up with myriad ways to convince franchise candidates that negotiating is unnecessary. The truth is, if you are thinking about buying a franchise, it is strongly in your best interests to have the franchise agreement reviewed by an attorney, and most quality franchisors will expect you to request certain changes. Requesting Reasonable Modifications to Your Franchise Agreement So, the question then becomes, “What changes can I reasonably expect my franchisor to accept?” While there is no magic formula and nothing is ever guaranteed, some of the franchise agreement provisions that are most likely to be on the table include: 1. Initial Term Whether the initial term of the franchise agreement is too short or too long, this is a provision of the franchise agreement that often merits careful consideration. You want to make sure that you have enough time to recoup your investment, but you also want to avoid being locked in for too long if the business simply isn’t profitable. If you can […]

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When buying a franchise, there are numerous factors that should guide your decision with regard to both (i) the type of franchise you choose, and (ii) where you choose to open for business. Statistics on the top franchised industries and top franchise locations can lean in both directions. On the one hand, it makes sense to choose a popular franchise in a location where people are used to shopping and eating at well-known brands. On the other, if you buy into too much competition in an over-saturated market, you could be setting yourself up for failure. Earlier this year, Franchise Direct published lists of the most-popular franchises and the locations that are most popular for opening a franchise. Neither list includes an explanation of its methodology, so take these for what they are worth. But, the rankings make sense, and even general trends are worth considering when deciding on the franchise opportunity that seems like the best fit for you. Most-Popular Franchised Industries According to Franchise Direct, as of May 2018, the 10 most-popular franchised industries in the United States were as follows: Food Franchises Children’s Franchises Coffee Franchises Home-Based Franchises Automotive Franchises Business Opportunities Vending and ATM Franchises Restaurant Franchises Cleaning Franchises Pet Franchises Notably, there is a bit of ambiguity in Franchise Direct’s list, as the list includes broad categories in addition to niche industries that could fall into one or more categories. For example, while “Children’s Franchises” ranks at number two, Retail Franchises come in just outside […]

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Buying a home services franchise allows you to be your own boss; and, for many first-time franchisees, it means using your home as your “headquarters” and driving to job sites in your local area. For many franchise candidates, it offers the perfect blend of independence and day-to-day interaction. Many home services franchises also offer relatively low barriers to entry (i.e. a modest initial investment), and the time from signing a franchise agreement to opening for business can be relatively short. But, like all franchise opportunities, home services franchises also come with a variety of risks. If you are thinking about getting into the business of remodeling, repairing, upgrading or protecting other people’s homes, here are some key legal considerations to keep in mind: 1. Liability and Auto Insurance If you (or your employees, if any) will be going into other people’s homes and installing new materials, using cleaning solvents or pesticides, or making substantial modifications, the risk of something going wrong is something you need to consider. The best way to mitigate your risk of liability due to a personal injury or property damage claim (aside from conducting thorough due diligence) is to purchase adequate liability insurance. Since you will be driving on a daily basis, you will want to make sure you have adequate insurance coverage as well. Your state’s mandatory minimum coverage requirements may not be enough if you cause a serious accident, and you will likely need to purchase commercial auto insurance rather than a standard personal […]

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