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The novel coronavirus pandemic is having unprecedented effects on our nation’s economy, and many companies are being forced to lay off their employees due to mandatory closures of “non-essential” businesses. Certain industries, such as the restaurant and fitness industries, have been hit particularly hard; and, in order to avoid the risk of being laid off again, some individuals may be considering the possibility of becoming their own boss by buying a franchise. If you fall into this category, should you think seriously about getting into the world of franchising? Here are some important considerations to keep in mind: 1. You Should Not Make a Long-Term Decision Based on Your Short-Term Circumstances While the novel coronavirus pandemic is (hopefully) a once-in-a-lifetime event, things will eventually return to normal. So, while you may be out of work for now, the job market will bounce back, and employers in certain industries are actually hiring aggressively during the pandemic. If you understand the franchise model and are serious about becoming a franchise owner, it may be an option worth considering. However, if you are simply focused on weathering the storm, there are likely better (and less risky) alternatives available. 2. You Will Need to Have Sufficient Cash Reserves to Build a Profitable Business When you buy a franchise, your business will not be profitable immediately. It takes time to build a profitable business, and most franchisors recommend that their franchisees have anywhere from three to twelve months of capital reserves on hand when they […]

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Each year, the Franchise Times publishes its list of “Best Franchises to Buy,” also known as the “‘Zor Awards” (for those who aren’t in the know, “‘zor” is industry shorthand for “franchisor”). It recently published its list of award recipients for 2020, with the following franchises named the best in their respective categories: Around the House (Home Repair) – The Glass Guru Quick Flip (Quick-Service Burger Restaurants) – Culver’s Fresh Baked (Bakeries and Cafés) – McAlister’s Deli Cut & Dry (Lawn Care and Painting) – Five Star Painting Game, Set, Match (Sports Bars) – Twin Peaks After the Storm (Disaster Restoration) – Paul Davis Restoration Window Shopping (Retail) – uBreakiFix Sweat It Out (Boutique Fitness) – CycleBar Help Wanted (Employment and Staffing) – PrideStaff Bring it Home (Delivery and Takeout Pizza) – Toppers Methodology for the Franchise Times ‘Zor Awards So, what does it mean for a franchise to be named the “best” in its category by the Franchise Times? In How We Chose the ‘Zor Awards, the publication breaks down its selection process: Identifying Candidates for Inclusion – In order to be considered, a franchise must have fallen into one of the 10 categories listed above, and it must have been listed in the Franchise Times’ “Top 200+” database. The Franchise Times, “further narrowed the list by analyzing the quality of information in each brand’s Item 19 [disclosures] or other key financial data, and also focusing on brands that are currently expanding inside the United States.” Financial Metrics Focused […]

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If you are serious about buying a franchise, you are most likely aware of the recommendation that you hire a lawyer to perform a franchise business review. But, with all of the up-front costs you will need to incur already, and since you are prepared to move forward even though the opportunity has its risks, do you really need to pay for a review? Of course, you know our answer already. With more than 30 years of experience in franchising, we have represented thousands of new and existing franchisees, and we have seen far too many franchisees struggle and lose their businesses simply because they failed to take the necessary precautions during the buying process. With this in mind, here are our top four reasons why we believe all prospective franchisees need franchise business reviews. 4 Reasons Why All Prospective Franchisees Need Franchise Business Reviews 1. Buying a Franchise is a Major, Long-Term Investment You have heard this before too, but it bears repeating: Buying a franchise is a major, long-term investment that could have significant implications for your family’s finances. If you decide to move forward, your decision needs to be based on the advice of experienced professionals who understand what you are getting yourself into. 2. The Franchisor is Putting Its Best Foot Forward During the buying process, the franchisor is giving you its sales pitch. If you are a strong candidate, it wants you to buy a franchise because it knows that (i) you have a reasonable […]

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Rent-to-own operators Aaron’s Inc., Buddy’s Newco, LLC, and Rent-A-Center, Inc. agreed to settle FTC charges that they negotiated and executed reciprocal purchase agreements in violation of federal antitrust law. Rent-to-own operators Aaron’s Inc., Buddy’s Newco, LLC, and Rent-A-Center, Inc. agreed to settle FTC charges that they negotiated and executed reciprocal purchase agreements in violation of federal antitrust law. The complaints allege that from June 2015 to May 2018, Aaron’s, Buddy’s, and Rent-A-Center each entered into anticompetitive reciprocal agreements with each other and other competitors. The three proposed consent agreements prohibited the rent-to-own companies and their franchisees from entering into any reciprocal purchase agreement or inviting others to do so, and from enforcing the non-compete clauses still in effect from the past reciprocal purchase agreements. After a public comment period, the Commission announced the final consent agreements. DISSENTING STATEMENT OF COMMISSIONER ROHIT CHOPRA Office of Commissioner Rohit Chopra UNITED STATES OF AMERICA Federal Trade Commission WASHINGTON, D.C. 20580     In the Matter of Rent-to-Own Market Allocation Scheme Commission File No. 1910074 February 21, 2020   Summary   The FTC uncovered evidence that three major rent-to-own players engaged in a market allocation scheme to close down stores that suppressed competition, but the agency is not asserting that this conduct was per se The proposed settlement deprives affected families of direct notification by the companies of their wrongdoing. This goes against a core element of competitive markets: the dissemination of truthful There is clear evidence that a senior executive served on the board […]

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Legal Life after the Coronavirus Death for Small Businesses, Franchisees and Dealers By: Jeffrey M. Goldstein  www.goldlawgroup.com Second in a Series: COVID-19 HAS KILLED MY BUSINESS – MAY I LEGALLY TERMINATE MY CONTRACTS? Those who hope or believe that the consequences, effects, and sources of COVID-19 will soon be arrested and contained might be wondering whether their inability to have complied with their contracts, leases, and mortgages during this waiting period can lead to a subsequent termination of or suit under their agreements for failure to have fully complied with all of the contractual obligations in these contracts. Although I don’t anticipate that ‘other parties to your contracts’ individually or as a group are preparing or conspiring to terminate, default, or cancel anyone’s agreements, this does not rule out the high probability that when things return to normal (when market forces begin to work again unimpeded by the myriad current external shocks), every firm will naturally begin to focus again on ‘maximizing profits’ – the legitimate and necessary goal of individual suppliers in a free market economy. In general, whether you’re able to use COVID-19 as a legal ‘excuse’ for your inability to pay or otherwise perform during the coronavirus downtime is subject to whether the agreement in issue contains a provision or language that excuses your performance for unanticipated or unforeseen events. While many agreements contain such clauses, referred to as ‘force majeure’ clauses (clauses that excuse performance based on unexpected events such as floods, epidemics, riots, wars, etc.), […]

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The coronavirus (COVID-19) (“the Virus”) has made it impossible or impracticable for many businesses to comply with their contracts. The party who must ultimately bear the loss associated with the Virus largely depends on whether the explicit language in their contract contains a ‘force majeure’ clause. In the absence of such language, liability for the non-performance will turn upon the law of ‘impossibility’ in the applicable jurisdiction. Not only has the Virus physically disabled those responsible for meeting contractual obligations, but it also has caused many state and local authorities to issue orders banning or severely restricting association, gatherings and travel, for instance, which, in turn, create such impossibility or impracticability. The evolution of the Virus, as well as government and business responses thereto (quarantine and containment orders), has caused many businessmen, and lawyers in unrelated niches, to ask whether any legal excuses exist to discharge promisors from contractual obligations impacted by the Virus. As discussed below, and as will be discussed in more detail in subsequent articles in this series, businesses, including franchisees, distributors and dealers, who find themselves unable to meet certain obligations in their contracts, should seek legal assistance to determine whether force majeure or the common law of impossibility or impracticability excuses their contractual performance. While force majeure generally refers to unforeseeable “acts of God,” impossibility is a broad-sweeping doctrine that picks up events and occurrences that arguably substantially impede performance even though they are not nature related (e.g., blindness or death of famous artist in […]

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Even though many industries have been devastated by COVID-19, the Antitrust Division in the Department of Justice has publicly warned all companies that they still are ‘being watched’ by government trust-busters. The DOJ Press Release singles out manufacturers and distributors of health products such as face masks, respirators, and diagnostics. Search form Search ABOUT OUR AGENCY PRIORITIES NEWS RESOURCES CAREERS CONTACT You are here Home » Office of Public Affairs » News SHARE JUSTICE NEWS Department of Justice Office of Public Affairs FOR IMMEDIATE RELEASE Monday, March 9, 2020 Justice Department Cautions Business Community Against Violating Antitrust Laws in the Manufacturing, Distribution, and Sale of Public Health Products The Department of Justice today announced its intention to hold accountable anyone who violates the antitrust laws of the United States in connection with the manufacturing, distribution, or sale of public health products such as face masks, respirators, and diagnostics.  The department’s announcement is part of a broader administration effort to ensure that federal, state, and local health authorities, the private healthcare sector, and the public at large are in the strongest possible position to respond to the outbreak of the respiratory disease named coronavirus disease 2019 (COVID-19). “The Department of Justice stands ready to make sure that bad actors do not take advantage of emergency response efforts, healthcare providers, or the American people during this crucial time,” said Attorney General William P. Barr.  “I am committed to ensuring that the department’s resources are available to combat any wrongdoing and protect the public.” Individuals or companies […]

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When you bought your franchise, the last thing you expected was that you would end up in a dispute with your franchisor. You had a good relationship with the people you talked to, you were excited about the opportunity, and it seemed like everyone was on the same page. But now, the relationship has soured, you aren’t happy with your outlet’s financial performance, and you find yourself in need of a franchise dispute lawyer. What happens now? Coming to Terms with Your Franchisor There are a number of potential ways to resolve franchise disputes, and the options that are available depend on the specific facts and circumstances involved. For example, if you have received a notice of termination, you may need to act more quickly – and your options may be more limited – than if you were facing a dispute with regard to something like advertising approvals or adopting an expensive new point-of-sale system. 1. Attempting to Negotiate a Mutually-Agreeable Resolution Generally speaking, however, your first option will be to attempt to negotiate a mutually-agreeable resolution. Is there a misunderstanding that simply needs to be cleared up? Is it in both parties’ best interests to quickly find a way forward? If so, then your chances of negotiating an outcome that you can live with might be fairly good. Negotiating doesn’t have to mean sitting down in a board room and going toe-to-toe. In fact, in many cases, issues can be resolved with an email exchange or a few phone […]

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In January 2020, Franchise Direct published two articles, A Look at How Franchises Impact the Economy and Franchising by the Numbers, that provide a nice overview of the current state of the franchise industry. Here, franchise attorney Jeffrey M. Goldstein covers some of the highlights: 1. There are More than 750,000 Franchises in the U.S. with More than 8 Million Employees According to Franchise Direct, as of January 2020, “[i]n the United States, over 750,000 franchise establishments are operating and employ around 8.17 million people.” Franchise Direct also reports that another 13.3 million jobs are “supported by franchises.” Citing the most-recent economic data, Franchise Direct reports that gross revenue from franchisees topped $868 billion in 2016, compared with $675 billion a decade earlier. 2. Food Continues to Dominate the Franchise Industry Across all sectors, food establishments accounted for the most employment in franchising, providing just under 473,000 jobs across the country. Based on global sales data, the three most-successful U.S.-based franchises are McDonalds, 7-Eleven, and KFC. 3. Franchise Ownership Demographics are Shifting It used to be that the majority of franchise owners were middle-aged or older, and typically seeking to transition out of an unfulfilling job or use their career experience to build their own business. While this is still the case today, Franchise Direct reports that 12 percent of franchisees are now 34 years of age or younger, and more than half of franchisees (54 percent) own two or more outlets. 4.  Franchising is Expected to Continue Its Upward […]

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On February 7, 2020, the International Franchise Association (IFA) published an article expressing its strong opposition to the Protecting the Right to Organize (PRO) Act (H.R. 2474), which passed in the U.S. House of Representatives on February 6. The PRO Act proposes to codify the National Labor Relations Board’s (NLRB) joint-employer standard adopted in its highly-controversial Browning-Ferris decision from 2015. It would also adopt certain aspects of the California state court decision of Dynamex Operations West v. Superior Court, which created a so-called “ABC” test for determining whether an individual should be classified as an independent contractor or an employee. According to the IFA: “This bill would pose a massive threat to America’s 733,000 franchise businesses and the 7.6 million workers they employ. Already, the joint employer standard that this bill seeks to codify has cost the franchise industry $33.3 billion per year and led to a 93% increase in joint employment litigation. . . . [The PRO Act] could have the detrimental impact of turning every franchise owner into a de-facto employee of the brand.” The Protecting the Right to Organize (PRO) Act (H.R. 2474) In its current form, the PRO Act, if enacted, would create a new standard for joint employment that follows the NLRB’s Browning-Ferris decision. In pertinent part, H.R. 2474 states: “Section 2(2) of the National Labor Relations Act (29 U.S.C. 152(2)) is amended by adding at the end the following: ‘Two or more persons shall be employers with respect to an employee if each such […]

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