Special Considerations for Purchasing an Automotive Franchise

May 17, 2019 - Blog by |

Whether you love cars or you are looking for a recession-resistant franchise with the potential for repeat business and a high sales volume, buying an automotive franchise presents both opportunities and risks. From seeing your customers every 3,000 miles to facing lawsuits when your customers’ cars break down and cause accidents, there are numerous factors that can increase both profit potential and liability exposure for automotive franchise owners. Here are four important legal considerations for purchasing an automotive franchise: 1. Liability for Employees’ Mistakes For automotive service franchises, such as oil change centers and repair shops, hiring well-trained and highly-skilled employees is of critical importance. When it comes to working on cars, trucks and SUVs, even minor mistakes can have drastic consequences. If one of your employees under-torques a drain plug or fails to properly bleed a customer’s brakes and the customer gets injured (or injures someone else) in an accident as a result, then your franchise could be in the line of fire. In addition to thoroughly vetting service employees, purchasing adequate insurance coverage can be critical to protecting an automotive franchise from business-threatening liability. Insurance policies should be crafted to meet the unique needs of the franchise, including both coverage limits and covered perils. 2. “Chain of Distribution” for Mandatory Products and Suppliers As a retail business, your automotive franchise will be in the “chain of distribution” for purposes of the law of product liability. This means that, if you sell a defective product that ends up causing […]

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7 Essential Steps for Buying a Franchise

Apr 30, 2019 - Blog by |

When buying a franchise, you are required to make a long-term investment decision based upon imperfect information. You cannot predict the future, and this means that you have no way of knowing whether you will ultimately succeed as a franchisee. However, what you can do is take steps to ensure that you are making as informed a decision as possible. Here are seven steps that will help you make an informed buying decision: 1. Submit a Franchise Application With most franchisors, the buying process starts when you submit a franchise application. While there is a good chance that your application will be approved, even this early stage in the process can tell you a lot about the franchisor. Did the application ask for relevant information? Did it appear to be a template, or was it custom-tailored to the franchise? How quickly and thoroughly did the franchisor respond to your questions and requests for additional information? Were you provided with a current copy of the Franchise Disclosure Document (FDD) and franchise agreement, and were you asked to sign a receipt? 2. Assess the Financial Viability of the Franchise Opportunity The FDD and franchise agreement should provide information about many (but not all) of the initial and ongoing costs of franchise ownership. At this point, you should prepare a pro forma and consider whether you will need to apply for financing from the Small Business Administration (SBA), a private lender or another funding source. 3. Hire an Attorney to Review the FDD […]

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Setting Reasonable Expectations as a Prospective Franchisee

Apr 26, 2019 - Blog by |

As a prospective franchisee, it is important to set reasonable expectations. On the one hand, you do not want to expect too much and set yourself up for disappointment (or failure). On the other, you do not want to expect so little that you fail to give adequate consideration to the legal risks (and opportunities) involved with buying a franchise. 1. Franchise Agreement Negotiations Reasonable: Negotiating Overly One-Sided Provisions of the Franchise Agreement Let’s start with negotiating your franchise agreement. Yes, you can negotiate; and, yes, most franchisors will consider reasonable requests to modify the overly one-sided provisions of their agreements. For example, if your agreement contains a non-compete clause, you may be able to negotiate a carveout that allows you to start or work for a company relying on the skills you acquired before you acquired your franchise. Unreasonable: Negotiating System-Wide Standards and Terms However, most franchisors will not consider negotiating the standards that they apply to franchisees on a system-wide basis – think mandatory suppliers and obligations to comply with the Operations Manual. Negotiating these types of provisions could make managing the franchise system untenable; and, as a result, requests for modification will usually be non-starters. 2. Franchise Due Diligence Reasonable: Gathering Information from Current and Former Franchisees When conducting your due diligence, you can expect to receive valuable information from current and former franchisees. The types of information they provide may be different (for example, former franchisees may be more willing to speak negatively of the franchisor), […]

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5 Special Considerations for Purchasing a Business or Financial Services Franchise

Apr 19, 2019 - Blog by |

If your background is in finance, tax, marketing or business administration, owning a franchise may be compelling for a couple of different reasons. Not only could owning a franchise mean running and managing your own business, but it could also mean using your background and experience to help other individuals and businesses. Depending upon exactly what you are looking for, there are a variety of different franchise opportunities available in the business and financial services sectors. Of course, all of these franchise opportunities present different risks, and choosing the best franchise for your individual circumstances requires thorough due diligence and a careful assessment of the Franchise Disclosure Document (FDD) and franchise agreement. For prospective business and financial services franchisees, here are five special considerations to keep in mind: 1. Approved Products and Services For many people, one of the appealing aspects of buying a franchise is having access to an approved (and presumably well-vetted) list of products and services. However, as a professional service provider, this may not necessarily fit your goals. Will you be comfortable limiting your product or service offerings based upon what the franchisor allows? Might you feel hamstrung by not being able to offer a full suite of services based upon your personal background and experience? These are issues that could significantly impact your level of satisfaction as a franchise owner. 2. Professional Liability (Errors and Omissions) If you will be providing professional advice to individuals or businesses, you may need to factor premiums for professional […]

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What are the Risks of Signing a Franchise Agreement Without Legal Advice?

Apr 12, 2019 - Blog by |

When buying a franchise, you need to make several important decisions that can have lasting implications for you and your business. Among them is the decision of whether or not to hire a franchise attorney. With all of the startup costs involved, hiring a lawyer to review the Franchise Disclosure Document (FDD) and franchise agreement may seem like one area where you can save some money (after all, aren’t you just going to end up signing the franchise agreement anyway?). But, while this is a choice some prospective franchisees make, their decision is usually based on a lack of understanding of the services an experienced franchise attorney can provide. 5 Risks of Signing a Franchise Agreement Without Legal Advice Along with numerous other ways an experienced franchise attorney can help you make an informed buying decision, here are five key risks your attorney will be able to help you avoid: 1. Not Knowing What You are Signing Buying a franchise is a long-term investment, and a franchise agreement is a long-term, legally-binding contract. Once you sign, you are bound to comply, and the odds are that you do not have a way out that does not involve incurring substantial financial liability to the franchisor. Before you sign, you need to know what you are signing, and you need to make sure you are comfortable with the legal and financial risks involved. 2. Not Negotiating One-Sided Provisions of the Franchise Agreement Franchise agreements are almost universally heavily one-sided in favor of […]

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Franchisee Progress Doomed by Archaic Economic Thinking

Apr 5, 2019 - Blog by |

Problem: As discussed in more detail below, although it is possible to achieve some measure of success in furthering the short-run goals of franchisees through the formation of franchise associations, achievement of the long-run goals of franchisees will nevertheless remain elusive, as they have for the last 25 years. Until franchisee associations develop the ability to understand and use more correct, accurate and dynamic theories underlying franchise market forces, they will be nothing more than temporary dues-collection entities. To explain this pervasive misunderstanding more fully, below I briefly posit the existence of two prototypical market models. (Of course, the markets as defined below are not pure nor are they complete; I defined and created the two crossbreed models below only for illustrative purposes). Franchise Model with Inherent Conflicts and Distorted Incentives (“Conflicts Model”) The Conflicts Model is one that I argued previously covers the franchise context. To create this model for illustrative purposes I’ve chosen and combined certain elements of both the neoclassical and transaction cost economics (“TCE”) theories to identify myriad “inherent conflicts” in the franchise market (and between stakeholders). Again, the neoclassical model shows, inter alia, that there is an underlying inherent conflict between the two major stakeholders since they maximize different variables, sales and profits. The implication of this inherent conflict is that franchisors and franchisees, in naturally seeking to achieve and maximize different market goals, will calculate different optimization levels of the same market variables. I gave the example of how this shakes out in an […]

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6 Ways a Franchise Attorney Can Help Besides Reviewing Your FDD

Mar 29, 2019 - Blog by |

If you are thinking about buying a franchise, you have probably been told that you should speak with a franchise attorney. You have probably been told that a franchise attorney can help you understand the Franchise Disclosure Document (FDD) and maybe even help negotiate your franchise agreement. But, there are a number of other ways that a franchise attorney can help you during the buying process as well, including: 1. Comparing Your Chosen Franchise Opportunity to Competing Franchises When buying a franchise, most of the information you obtain about the franchise will come from the franchisor. You can (and should) speak to current and former franchisees during the due diligence process as well; but, even then, you are still only gathering information about the specific franchise you have selected. An experienced franchise attorney will be able to access competing franchise systems’ FDDs and franchise agreements, and use the knowledge gained from representing numerous other clients to help you make an informed decision. 2. Identifying and Evaluating Legal Risks Related to Your Chosen Franchise Opportunity Beyond simply summarizing the key provisions of your FDD and franchise agreement, an experienced franchise attorney will also be able to identify and help you evaluate legal risks that you likely would not be able to spot on your own. For example, while access to proprietary branded products may seem like a good thing, there are also risks involved in committing to the use of third-party products and suppliers. 3. Helping You Form a Limited Liability […]

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FAQs: What Do Franchisees Need to Know About Renewal?

Mar 22, 2019 - Blog by |

All franchise agreements expire. While the goal of buying a franchise is to build a sustainable business that generates profits for years to come, the reality is that many franchisees struggle to recoup their initial investment before their initial term expires. If the initial term of your franchise agreement is about to expire, what do you need to know about renewal? Here are answers to some frequently-asked questions (FAQs): Answers to Frequently-Asked Questions (FAQs) about Franchise Renewal Q: Can my franchisor refuse to renew my franchise agreement? In general, a franchisee’s “right” to renew is subject to a laundry list of conditions set forth in the franchise agreement. If you fail to satisfy any of these conditions by the date your original franchise agreement expires, then your franchisor may refuse to renew your franchise. State franchise laws provide protections against bad-faith refusals to renew in some cases. Q: What do I have to do in order to exercise my right to renew? In order to exercise your “right” to renew, you must satisfy all of the renewal conditions stated in your franchise agreement before your initial term expires. Minimally, this will likely mean curing any outstanding payment deficiencies, updating to current system standards, and signing the franchisor’s “then-current” form of franchise agreement. Q: Will I be required to sign a new franchise agreement in order to renew? In most cases, yes. Franchisors generally include execution of their “then-current” franchise agreement as a condition of renewal. However, while you may be […]

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5 Special Considerations for Buying a Hotel Franchise

Mar 15, 2019 - Blog by |

Hotel chains dominate the hospitality market, and some hotel chains are among the largest and most well-known franchised brands in the world. As a result, many prospective franchisees find the idea of owning a hotel to be a desirable one, and they believe that the substantial up-front investment will more than pay off in the long term. While this is certainly the case for some hotel franchisees, building and operating a successful hotel is a challenge even for the most-seasoned business owners. When you add in the costs and inherent challenges involved in operating under a franchised model, finding success as a hotel franchisee is far from certain. At the Goldstein Law Firm, in addition to representing prospective hotel franchise owners in franchise agreement negotiations, we also have extensive experience representing hotel franchisees in litigation with their franchisors. If you are thinking about buying a hotel franchise, here are some of the key risks to keep in mind: 1. Substantial Initial Investment Although many franchises can be launched with less than $100,000, building or renovating a hotel is generally a multi-million-dollar endeavor. While much of this initial investment is attributable to costs you would incur regardless of whether you were building a franchised or non-franchised hotel, you will still be required to pay a significant up-front initial franchise fee to the franchisor. In any case, before making such a significant investment, it is critical to ensure that you have taken appropriate legal measures to protect yourself as much as possible. […]

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Can My Franchisor Audit My Franchise?

Mar 8, 2019 - Blog by |

If you signed your franchise agreement without reading it carefully, you might be surprised to learn that your franchisor has a broad right to audit your franchise. Franchisors almost universally reserve this right; and, while audits are ostensibly intended to ensure that franchisees are accurately calculating their royalty fee and marketing fund contribution obligations, franchisors often use them as tools for establishing grounds for default and terminating underperforming or “difficult” franchisees. So, your franchisor has announced that it will be auditing your franchise. What do you need to know? Protecting Your Rights During a Franchise Audit 1. What Does Your Franchise Agreement Say? When faced with an audit, the first thing you should do is review your franchise agreement. What does it say about audits? Are there any restrictions on how frequently your franchisor can audit your franchise or how much advance notice your franchisor must provide? Can your franchisor hire a third-party auditor to inspect your books and records? What is the permissible scope of the audit? 2. Do You Have Anything to Worry About? Assuming your franchisor is within its rights to conduct the audit, your next order of business should be to conduct an internal audit of your own. Is it possible that you could have underreported your gross revenue—could you be at risk for being declared in default of your franchise agreement? If you have any concerns, you should come up with a plan to address them proactively before your franchisor has a chance to send […]

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