Franchise Articles

Buying a master franchise is a very different proposition from buying a single-unit franchise—or even entering into an area development agreement.  As a master franchisee, not only might you be tasked with opening one or more franchised outlets of your own, but you will also be responsible for selling franchises and managing independent franchisees within your master franchise territory. As a result, buying a master franchise involves legal risks above and beyond those involved with buying an individual franchise or the right to develop a particular geographic area on your own. Some examples of these legal risks include: FTC Rule and State Franchise Law Compliance As a master franchisee (also referred to as a “sub-franchisor”), you will be selling franchises in your territory. This means that you will take on the disclosure obligations of a franchisor, and you will be at risk of facing liability due to disclosure violations. Your franchisor will most likely provide you with a Franchise Disclosure Document (FDD) to use in your territory; and, if it does, you should be able to seek indemnification in the event that you are held liable as the result of an issue with the FDD. However, there is also a very good chance that this is a protection that you will need to seek to negotiate into your master franchise agreement. Master Franchise Agreement Compliance Speaking of the master franchise agreement, the terms of your master franchise agreement will be very different from the terms of any franchise agreements you […]

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If your franchise is up for renewal in 2021, you have an important decision to make: Will you seek to renew your franchise; or, is it time to move on? If you intend to renew your franchise, you will need to plan ahead; and, depending on when exactly your franchise agreement is set to expire, you may need to start planning now. When Do You Need to Provide Notice of Your Intent to Renew? In order to renew your franchise, you will need to provide your franchisor with notice of your intent to renew. The timeframe for providing this notice depends on the specific terms of your franchise agreement. Most franchisors require their franchisees to provide notice by a certain date (i.e. no later than 60 days prior to the franchise agreement’s expiration date). However, some franchise agreements establish specific time windows as well (i.e. between 90 and 60 days prior to expiration). When providing notice of your intent to renew, you must ensure that you provide notice at the right time—and you must ensure that your notice satisfies the franchise agreement’s substantive requirements as well. What are the Conditions for Renewal? In addition to providing adequate notice, you will likely be required to satisfy various other conditions for renewal as well. For example, some of the most common types of renewal conditions include: Being up-to-date on your royalty payments and marketing fund contributions; Being in full compliance with the franchisor’s current system standards; and, Paying a renewal fee. If […]

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Buying a franchise, like any other business investment, is a risky proposition. There is no guarantee of success; and, even if you are confident in your ability to build a profitable business based on the current economic circumstances, there is no guarantee that market conditions will remain constant. This is something that 2020 has made painfully clear. With that said, there are certainly steps that franchisees can take to improve their chances of growing a successful business. In an article titled, How Do I Make My Franchise Successful?, the International Franchise Association (IFA) outlines what it calls, “10 keys for franchise success.” While this is a bit of a hyperbole, many of the IFA’s tips are in fact pretty good. Here, franchise attorney Jeffrey M. Goldstein discusses some of the highlights: 1. “Make sure you have enough money.” The IFA’s first tip is also perhaps its most important. In order to succeed as a franchisee, you need to be able to invest the money required—whether you put up the money on your own or you obtain financing. You also need to be prepared to cover your operating expenses (and your own personal expenses) during the initial months of your franchise’s operations. In Item 7 of the Franchise Disclosure Document (FDD), franchisors generally recommend that franchisees have a certain amount of “additional funds” on hand to cover their expenses for the first six to nine months. The IFA recommends determining, “how much you will need to live on for at least […]

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The COVID-19 pandemic has you working from home; and, without your daily commute, you have a lot more time available in your day. Your employer has indicated that your shift to working as a remote employee will be permanent, and this has you thinking: How can you make the most of your newfound free time? Should you buy a franchise? One of the common perceptions about franchise ownership is that it is – or can be – a “hands-off” investment opportunity. If you hire the right people, your day-to-day involvement in the business can be minimal. But, can it be minimal enough that you can run your business while continuing to work full-time? As with most business and investment questions, the answer is, “Maybe.” Is it Really Possible to Be a “Hands Off” Franchisee? If you are thinking about buying a franchise and attempting to build your business while continuing to work for your current employer, here are some important factors to consider: 1. Some Franchisors Require Owner Involvement Some franchisors require their franchisees to be involved in the day-to-day operations of their franchises. If you are planning on hiring a manager to run your business, you will need to make sure you choose a franchise system that allows you to do so. 2. Building Your Business Will Take A Lot of Time While you may be able to hand over many of your day-to-day responsibilities to a manager eventually, you will need to be heavily involved during the pre-opening […]

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The COVID-19 pandemic has changed the way people buy products and services. People are shopping from home more now than ever before, and some market experts are forecasting that this will not change even once we have a vaccine that allows us to resume life as we knew it prior to 2020. With this in mind, is now the time to buy a mobile franchise? With more people relying on products and services to be delivered at their doorstep – not just now, but possibly for the foreseeable future as well – it may seem like an opportune time to invest in a mobile franchise. If you think this seems like a good business opportunity for you, here are some legal issues you will want to consider as you move forward:  5 Legal Factors to Consider Before Investing in a Mobile Franchise 1. Buying a Franchise is a Long-Term Investment Most franchise agreements have an initial term somewhere in the range of two to five years. Will the demand for mobile services truly be the same as it is today five years from now? 2. It Will Take Time to Recoup Your Initial Investment In addition to your initial franchise fee, buying a mobile franchise will most likely mean investing in a vehicle; and, depending on the nature of the franchise, you could potentially be looking at tens of thousands of dollars in additional initial investment as well. Will you be able to generate enough revenue from your mobile franchise […]

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If you are thinking about buying a franchise, you know that you need to make an informed investment decision, and you know that you need to go into your franchise opportunity eyes wide open. But, do you know what this actually entails? While most prospective franchisees have a general idea of the financial risks involved with buying a franchise, far fewer have an appreciation of the legal risks that have the potential to place their entire investment in jeopardy. What kinds of legal risks are we talking about? Here are five important legal issues not to overlook when pursuing a franchise opportunity: Issue #1: Inadequate Territorial Protections What is your understanding with regard to your territorial rights? Are you to receive an “exclusive” or “protected” territory? If so, what do these terms really mean? While lots of franchisors offer their franchisees some form of territorial protection, protections vary greatly between franchise systems, and you need to make sure your franchise agreement clearly defines the rights you are being granted. Issue #2: Insufficient Protections for Renewal When the initial term of your franchise agreement expires, will you have the ability to renew? While it is fairly standard for franchisors to offer their franchisees renewal rights, these “rights” are usually contingent upon satisfying a broad range of requirements. If the conditions for renewal in your franchise agreement are too franchisor-friendly, you may find yourself on the outside looking in when your initial term expires. Issue #3: Termination Risks for Late Payments and […]

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On September 28, 2020, the Franchise Times released its list of the “Top 200+” franchises for 2020. The article announcing the release begins with a sobering proviso: “[T]his year’s Franchise Times Top 200+ may be the last look at the old world before 2020 results change everything.” As the International Franchise Association (IFA) recently reported, the franchise industry has been hit hard by the COVID-19 crisis, with more than 32,000 franchises closing in just the past six months. But, since the Franchise Times’ current Top 200+ list is based on 2019 data, the figures look pretty good. Franchise sales grew significantly last year, while the biggest brands in franchising continued to get even bigger: “Based on 2019 systemwide sales, franchising’s strongest brands gained strength, emerging hot brands kept bringing the heat and brands on the decline continued to slow. Aside from a few surprises, the momentum of franchising continued on the same upward trajectory seen in the last few years. “In all, the top-ranking 200 brands grew sales by 4.5 percent . . . . That represents a slight acceleration from last year, when the top 200 grew sales by 4.2 percent. . . . The top 10 brands grew even faster, expanding sales by 5.2 percent to add $16.2 billion, just over half of the overall sales growth for the first 200 on the list.” Big Names Continued to Dominate Franchising in 2019 While more companies turn to franchising every year, the Franchise Times’ data show that the big […]

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A recent article from the International Franchise Association (IFA) sheds light on the significant impact that the COVID-19 crisis has had on the franchise industry over the past six months. The article, which relies on a report prepared by FRANdata, concludes by quoting the organization’s President and CEO as stating that, “COVID-19 has caused a staggering amount of business closures and layoffs across franchise businesses. . . . Additional broad-based and long-term Congressional action is desperately needed to stave off additional closures and layoffs, particularly for the hardest-hit businesses.” The COVID-19 Crisis’s Impact on the Franchise Industry The IFA’s article reports that in the first six months of the COVID-19 crisis, “[m]ore than 1.4 million franchise jobs [have been] lost, and more than 32,000 franchise businesses have closed.” This includes nearly 11,000 franchises that have closed permanently. Worryingly, the IFA projects that another 36,000 franchised businesses will close in the next six months if nothing is done to curb the economic impacts of the pandemic. Overall, FRANdata predicts that one in 20 small businesses will close permanently over the next six months if the current economic trends continue. Additional notable statistics from the FRANdata report include: As of the end of August, just 26 percent of franchises have resumed their normal operations or faced only minimal effects from the COVID-19 pandemic. On average, franchisees have experienced a 19.3 percent decline in revenue during the COVID-19 pandemic. Of the 1.4 million employees in the franchise industry who have lost their jobs, […]

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LITIGATION STRATEGIES FOR ANTITRUST AND FRANCHISE LITIGATION Even when you have a very strong case against a business opponent, you will face difficulty in achieving a satisfactory resolution without an effective and efficient litigation strategy. Your job is to find an expert litigator who can provide you with an accurate assessment of your case. As noted elsewhere on this website, not all lawyers are created equal. Not every lawyer is an expert, and not every lawyer approaches the practice of law from an intellectual perspective. Further, not every lawyer is a litigator; and, not every litigator focuses his or her practice in complex litigation in federal courts around the country. Moreover, not every case is amenable to the same type of strategy. A successful litigation strategy must be predictive, reactive and malleable in the face of constantly changing facts, conditions and events. Legal tactics that are used to further mediocre strategies are not likely to be effective. Tactics that masquerade as strategy are doomed from the start. Most important, superior legal strategies will be capable of causing changes to the future litigation battlefield terrain. A superior litigation strategist will have the self-confidence to believe that he or she can influence and control future events. Last, superior litigation strategists must possess well-developed predictive and reactive capabilities. It is not always easy to find an attorney who can provide you with a superior strategy for your litigation issue. Indeed, it is impossible to do so without affiliating yourself with an attorney who […]

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The Right Lawyer Produces The Higher Quality Franchise Review  Unfortunately, the overwhelming majority of lawyers providing franchise agreement or FDD reviews produce a written memorandum for the client allegedly ‘summarizing’ the 300+ pages of the FDD, the franchise agreement or both. This is in almost all cases a waste of time, money and effort. In almost all cases, such lawyer memos are the result of a young associate’s or paralegal’s ‘filling in the blanks’ on a ‘form memo’ already on the lawyer’s hard drive. A more complete and highly accurate ‘summary’ of the terms in the franchise agreement is already incorporated in the FDD. Should a dispute between you and the franchisor later arise, the Court will not be interested in what your lawyer’s ‘summary memo’ told you about the terms of the franchise agreement; instead, the Court will look to the franchise agreement (and infrequently to the FDD). From a common sense point of view, the provision by your lawyer of another 15 page summary memorandum, on top of a 300+ page FDD and a 60+ page Franchise Agreement is relatively useless. Then why do lawyers do this? Very simply it is many times much cheaper and quicker for a lawyer to have his or her associate or paralegal ‘fill in the blanks’ on a form memo instead of personally doing a full and complete evaluation of each of the provisions of the franchise agreement. In addition, many lawyers who practice on behalf of both franchisors and franchisees do […]

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