Legal

I was shocked recently while attending a workshop covering franchisee recruitment (formerly known as "franchise sales") by the participants' responses to the following situation: Assume that the franchisor says nothing in his Franchise Disclosure Document's Item 19 as to financial performance. Instead, the franchisor suggests that prospective franchisee prepare a business plan that would include a projection of revenues and costs for the proposed franchise.

I have been a franchise lawyer my entire professional career. I still recall vividly my first project on my first day, September 8, 1987. International Dairy Queen had acquired Orange Julius of America (OJA) earlier that year, and we were updating the Orange Julius UFOC to enable OJA to continue to offer and sell franchises. We then also filed the revised UFOC in the various registration states.

Our objective with this column is to identify issues and best practices that will enable franchisors to more effectively address state registration/disclosure matters in connection with their franchise development efforts. The IFA 2009 Legal Symposium's "Ask the Regulators" session provided insight on a number of those fronts. During this session, state regulators identified several common mistakes franchisors make during the registration process, many related to the Revised FTC Rule. We discuss five of those common mistakes, with another five to be discussed next month.

You've done your research, you've assessed your own strengths and weaknesses, you've thoroughly evaluated the franchise companies that were a potential match for you, you've got your financing lined up, you've even jumped through a few hoops along the way, now comes the moment of decision. When it's time to commit and move forward with a franchise, you will be required to officially sign on. It's a big day and is often - but not always - marked by a Discovery Day held by the franchisor. Discovery Days are often meant to serve as final meetings that are typically held at the franchisor's headquarters or other corporate facility. Often, the franchisor will cover some or all of the costs of the incoming franchisee. After all, at this point, you've both been in regular contact and things look pretty serious. These events are usually fun, informal, and characterized by high energy and positive words. It's a final chance to talk one-on-one and, if both sides are in agreement, sign on with the franchise. But keep in mind that you are not obligated to "come aboard" at this time, and the franchisor also reserves the right to not extend an invitation at the end of the day. As a matter of fact, you may even consider attending two or three different Discovery Days to help you make your final determination of a franchise concept. That being said, here are some things you should know and do to prepare for attending a Discovery Day signing.

Getting to know a little more about you as a prospect is one of the first things franchises are interested in. The initial franchise application process is a screening mechanism by which franchisors begin to determine your interest and qualifications. Today, it is common to find initial franchise application forms on franchisors' websites - but most will be happy to send you one as well. This is a good stepping off point for beginning the communication process. You should not only take this very seriously, but also expect to spend some time gathering the information and completing the application.

Let's look at some recent trends. The stock market: trending downward. Franchise system sales: flat or downward in well over the majority of cases. Sales of new franchises: definitely on the downturn, almost dormant. How depressing!

Let's play Jeopardy. The answer: "Document!" The question: "What is the most effective way to minimize risk in the franchise sales process?" To be honest, my answer is a form of shorthand, but it succinctly makes my point.

We now have all of the requirements of the FTC's Amended Franchise Rule being implemented. All franchisors should be complying with the Amended Rule's disclosure requirements, and most franchisors who have sales activities in the registration states are now doing battle with the state examiners, as they test the procedures and borders of the revised disclosure requirements. That brings to mind two topics of discussion, one of which I will address below, and the other (a look at the overall system for regulating franchise sales disclosure) I will save for another column.

As revenue for the state's revised franchise tax continues to add up, several bills have been introduced to the state legislature to change the tax and give business owners some breathing room.

Ontario is one of three provinces that have legislation to regulate franchises. The act that governs franchises in Ontario is the Arthur Wishart Act (Franchise Disclosure), 2000 (the "Act"). Any franchise business located partly or wholly in Ontario must comply with the Act. Compliance is mandatory even if both the franchisor and franchisee reside outside of Ontario.

Local governments and video providers should find out by Nov. 3 if a Louisiana state court judge will accept language in the state's new franchising law that allows incumbent operators to opt out of current local contracts.

The current economic climate remains high in the minds of both state Senate candidates for District 14. Democrat Bob Williams and Republican Gary Howell are both vying for the seat that would represent Barbour, Mineral, Preston, Taylor and Tucker counties as well as part of Grant and Monongalia counties.

It is a quiet Saturday morning. If you are the average American, the downturn in the economy has started you to think about how it will impact your career and the opportunities for your children as they enter the workforce. Articles about Enron and Tyco and Global Crossing and other corporate scandals abound and some of the most respected brand names internationally are talking about layoffs and bankruptcy.

There has been a growing trend in the world of franchising to tell candidates more about their earnings potential. Item 19 in the Franchise Disclosure Document (FDD) is the section that provides details on earnings, costs, and other factors likely to affect future financial performance after a candidate signs on to become a franchisee.

The Government of Afghanistan is currently reviewing a bill that would reform and modernize the country's contract law. Afghanistan is a civil code jurisdiction and, currently, contracts are governed by sections of the country's Civil Code (dating from 1976) and Commercial Code (dating from 1955). Both the 1976 Civil Code and the 1955 Commercial Code are based on the laws of Egypt, which in turn are based on French civil law. During the period following the Soviet invasion, and the subsequent civil war in Afghanistan, little attention was paid to updating or modernizing these Afghanistan statutes.

Korea's first franchise law, the Fair Franchise Transactions Act (the "FFTA") was adopted May 2002, effective Nov. 2002. Its Presidential Enforcement Decree - setting forth detailed information to be provided in the franchise information disclosure statement and a description of concrete types of unfair transactions broadly prohibited under FFTA - was promulgated Nov. 2002 (last amended June 2003). In the Korean system, Enforcement Decrees provide detailed instructions for statutory compliance; therefore, it is to be expected that 2004's changes to applicable law will be found in future amendments to the Enforcement Decree.

For over a quarter of a century, I have been a critic of the United States' franchise sales regulation system.

The past decade saw an acceptance by the Romanian market of the Western concepts of doing business, a new perception of the value of brands and the creation of an entirely new market - the one for franchisers. Seven years have passed since Romania enacted a franchise law. During this period, the market has evolved, and the pioneering period in franchising during which major companies entered the market only for market testing - first performing distribution operations (Coca Cola) or establishing a subsidiary (McDonald's) and only afterwards developing their franchise concepts - has come to an end. Indeed, 60 of the 107 franchises currently operating in Romania have been established during the last two years.

Earlier this year, a franchise magazine that shall remain nameless here focused upon the issue of "cleavage in the marketplace" - a subject no man in his right mind would ever touch. However, I found it interesting that this subject had garnered discussion in one of the leading publications on franchising, or for that matter, in any reputable publication.

Financing is the lifeblood of expansion for franchisors and multiunit owners alike. Whether for advertising and marketing to sell additional franchises, or whether to remodel or build more company stores, without financing there is no growth and development. And, despite the rapid growth of new concepts and new units in the aftermath of the dot.com crash in 2000 and 2001, many forecasts of the economic climate and its effect on business growth in 2008 range from gloomy to dim--especially when it comes to credit and lending.

To those readers who are interested in legal affairs in the franchising context and are not subscribers to the American Bar Association's Forum on Franchising's listserv, you are missing one of the greatest shows in town. Listservs, chat rooms, blogs, and whatever else, are means to dialogue on the Internet and can turn into today's electronic equivalent of a lynch mob, as demonstrated by two recent exchanges on the forum's listserv on the subject of arbitration.

So Franchise UPDATE is now 20 years old! When Ripley Hotch asked me to reflect upon developments in franchise law over the last two decades, I was honored. After all, I was there - the whole time and much before! I have been fortunate enough during my career to have served as a member of, a contributor to, or observer for, many of the groups that have influenced the direction of franchise law, and I have read hundreds of precedents that have made franchise law what it is today.

The franchise industry is having an increasingly large impact on the Canadian economy, with franchised businesses accounting for 40 percent of all retail sales. Provincial legislators are taking note of this growing industry and, in response, are introducing and passing legislation that addresses many of the perceived issues that arise between franchisors and franchisees. Most recently, the Province of New Brunswick passed franchise legislation (the “New Brunswick Act”), making it the fourth Canadian province to adopt such legislation, after Alberta, Ontario, and Prince Edward Island.

On January 31, 2007, the State Council of the People's Republic of China adopted the "Regulations on the Administration of Commercial Franchise," scheduled to take effect on May 1, 2007 ("2007 Franchise Regulations"). With promulgation of the 2007 Franchise Regulations, China entered the last phase of a long and difficult process that started in 1997 to create a legal structure for the franchise business model in China.

An acquaintance (not a lawyer) who is working on a book on franchising, recently asked me to review her manuscript and make appropriate editorial suggestions. In her chapter on buying a franchise, she strongly recommends, as would I, that a prospective franchise purchaser hire a lawyer who is experienced in franchising to counsel him (or her) with respect to this investment.

California has long been a key market for franchising. Its consumer-oriented culture has also made it one of the most active venues for regulatory and legal issues. Legal developments over the past year affecting the franchise community include 1)...

I. Rule Overview Basic Requirement: Franchisors must furnish potential franchisees with written disclosures providing important information about the franchisor, the franchised business and the franchise relationship, and give them at least ten...

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