Legal

In the race to boost sales in a tight economy, franchisors are offering many different kinds of financial incentives to attract potential franchisees and to help their existing franchisees survive and expand. Last month, the authors provided an overview of today's economic environment, along with details on what Chick-fil-A, Saladworks, and Friendly's are doing to help franchisees obtain the funding they need. This month, they describe the programs under way at five more franchisors.

The franchising community thinks of the FTC as the "top dog" in regulation. The FTC's Franchise Rule sets the standard for disclosure to prospective franchisees and is the basis of state regulation as well. While small by federal standards, the FTC has powerful tools at its disposal.

In the previous issue of Franchise Law News, Terrence Dunn and Michael Einbinder authored an article on how to strengthen your franchise agreement. This article expands on that theme, focusing on the role of the franchise agreement in the franchise system.

All franchisors are considering how to maintain or increase market share in the new normal. Nobody can deny that the Great Recession has created more and better real estate opportunities for those who can afford to exploit them, as well as a surplus of qualified operators, composed increasingly of women and minorities, without assets to operate. The number of opportunities appears to grossly overshadow any one franchisor's resources in terms of cash, personnel, and credit.

Last year when President Obama signed the Credit Card Act of 2009 (the Act") into law, the nation's attention largely focused on those provisions of the law that aim to change the way credit card companies do business with consumers. However, since the Act imposes requirements on gift card issuers, it also changed the way many retailers and franchise companies will do business with consumers.

As I write this piece, it is a nostalgic moment for me: 37 years of practicing law, and all with the same firm. In today's environment, inertia in law firm employment is a rare thing. If I knew then what I know today, would I have gone into private practice?

One of the significant consequences of the Internet's development is that we can gather opinions from a diverse group with minimal effort. I did so recently through a posting on the American Bar Association Forum on Franchising listserv.

When the topic of international franchising comes up with clients, many are quick to dismiss the opportunities. Comments such as, "I haven't sold out the U.S. yet," are common. Some franchisors take a more inquisitive approach and ask, "What's it going to cost me?" Others want to know how quickly they can open because they want the initial fee or want to go there on vacation

Franchisors typically have developed franchise agreements that have been tailored by time and experience to address the issues that most often arise in the development of their franchised businesses. However, even the most polished agreement can benefit from a periodic review and revision. Here are five areas that frequently require attention to enhance enforcement rights, protect against competition, protect intellectual property, and protect against claims by third parties.

In January 2007, the FTC released the amended FTC Rule on Franchising and made compliance mandatory by July 1, 2008. Since then, many of the states with franchise registration laws have also amended their laws to conform to the FTC's changes. Violations of the FTC Rule and state franchise laws can have a profound negative impact on a franchisor, its officers, directors, and sales staff, and can even lead to jail time. We thought we would take this opportunity, more than three years after the release date, to offer you a short quiz to gauge how well you remember some of the important current requirements.

Last issue, we discussed growth through nontraditional franchises. Private equity firm investments of significant amounts of capital in franchisors and in franchisees represent another avenue for sales growth. Economic travails have led to the availability of sites with increased negotiating leverage for prospective tenants and experienced franchise talent. But in this tight financial market, where are the dollars to take advantage of those opportunities? We explore private equity firm concerns, what to expect in negotiations, and when franchisors should "just say no."

Most prospective franchisees want financial performance information as part of their due diligence process when deciding whether or not to purchase a particular franchise. Prospective franchisees are understandably hesitant to invest thousands of dollars if they have no idea what kind of financial performance exists at the outlet or unit level. Financial performance information can be a powerful selling tool for franchisors because this information responds to a prospective franchisee's compelling need for information concerning the possible financial results of their investment.

1. Should I make a financial performance representation (FPR)? Yes! Any type of representation, oral, written, or visual, that suggests or implies a specific level or range of actual or potential sales, income, gross or net profits qualifies as an FPR. You can't make an FPR unless it is in your franchise disclosure document (FDD). Between 20 and 30 percent of all franchisors make an FPR, which means some of your competitors share their numbers with your prospects. What impression do you leave if you don't share yours? If you have solid numbers, consider making an historical-based FPR. If you do, the law allows you to make specific written representations outside the FDD about a particular location or highlighting specific variables (e.g., a kiosk variation to a traditional retail format). Without an FPR, you may not make financial representations on your website (the first place prospects check in investigating a concept) or anywhere else.

About two years ago, at the behest of a friend, Nick Vojnovic, president of Beef 'O' Brady's, made his first foray into a nontraditional franchise location, opening a restaurant at the TradeWinds, a resort in St. Petersburg, Fla., with 1 million annual visitors. It wasn't exactly on his radar, but Vojnovic decided to give it a go.

Franchise Update Media Group (FUMG) the leading industry resource for franchise development, today announced the launch of Franchise Law News, providing franchisors with a consistent source of quality legal information about the franchise industry. The print edition and eNewsletter are distributed quarterly, and online access is available anytime at www.FranchiseLawNews.com.

It's been more than 40 years since I took my one and only psychology course. I can't say the course changed my life or showed me the light. It didn't. In fact, the only thing I really remember from it is that there are six interpretations of any two-party conversation: how Party A and Party B each perceives what they said and what they heard (that makes four); and two more, which are what I might label the truth (what Party A actually [i]did[/i] say to Party B, and vice versa). The point, of course, is that what we think we said is not necessarily what the other party thinks they heard--and further, that what we think we said may not have been what we actually said.

After graduating from the University of Pennsylvania and Loyola Law School in Los Angeles, Danny Sonenshine quickly found himself working as a litigator and transactional attorney at major firms in Orange County.

As franchisors prepare for the upcoming renewal season, increased efficiency is likely a top priority for your franchise system. Our franchise team at Faegre & Benson has identified 12 tips to help you save time and money in preparing for a successful 2010 renewal season.

After graduating from the University of Pennsylvania and Loyola Law School in Los Angeles, Danny Sonenshine quickly found himself working as a litigator and transactional attorney at major firms in Orange County. It didn't take long for the Laguna Beach native to realize a few things about himself--realities that led him to leave the practice of law after six years for the very different field of franchising and restaurants.

Last issue we began the discussion of how buying assets out of bankruptcy court is time-consuming but usually easy - when done properly. But if you try to pick and choose, it can become more difficult. It's hard to determine a fair value for such assets. If you're not careful you could find yourself back in court fighting angry creditors who think you've cheated them.

One of the most helpful services franchisors can provide to their franchisees is accounting direction and services. I am often astonished at how little guidance so many franchisors provide in this area. How will franchisees know if they are truly making money and operating effectively if they don't keep good books and receive information to help them run their businesses more effectively?

Buying assets out of bankruptcy court is time-consuming but usually easy. But if your target is a franchisee and you get choosy - meaning, for example, that you want to buy only 10 outlets in a bankrupt 20-outlet franchise restaurant chain - things get dicey. Why? Because it's hard to determine a fair value for such assets, and if you fail to do so, you could find yourself back in court fighting angry creditors who think you've cheated them.

The franchise registration states require an updating of your FDD annually. This requirement necessitates the filing of a renewal application (including the revised FDD, current audited financial statements, and supplemental documents) with each registration state in which you plan to continue selling franchises.

The constant theme of this column is Do It Effectively, Do It Legally, Make a Difference. How a franchisor addresses its sales promotional materials fits this theme. That is, a franchisor's sales promotional materials must effectively capture a candidate's attention and also must comply with the rules.

In our July column we identified five common mistakes franchisors make in their franchise development activities. These mistakes were discussed by state regulators as part of the IFA 2009 Legal Symposium's "Ask the Regulators" session. This column identifies a second group of five mistakes, each addressing specific FDD disclosure requirements. Our objective here is to identify issues or best practices that will enable franchisors to more effectively address state registration/disclosure matters in connection with their franchise development efforts.

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.