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A FRANCHISOR’S KEY TO SUCCESS

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The bedrock for a successful franchise system depends upon the uniformity of its operations.  That uniformity is the essence of why consumers continually trade with one of the many franchisees in the system.  Even though a franchisor’s logo, name and trade dress are an integral part of the system, it is a franchisor’s trade secrets, proprietary items and business acumen that effectively give one franchisor a competitive advantage over another.  Thus a franchisor’s methodology of doing business (part of which is encompassed in the operations manual) constitutes one of the most important elements of the Franchise System.  Likewise, without franchisees who comply with the system standards (methodology) there is no uniformity.  Without uniformity the Franchise System is on a downward course which eventually will reach a level where there can be no recovery.

It does not matter whether the franchise company is “McDonalds” or a mom and pop operation, the franchisor must exhort a willingness to protect its system standards.  Obviously a company like “McDonalds” has the capital and manpower to enforce system standards.  Consequently a consumer knows that when they eat at a “McDonalds” in California or Alabama they will get the same basic food.

Large franchisors have learned that the dollars invested in enforcing system standards to create uniformity come back to them tenfold.  Unfortunately it is generally the smaller franchisors, plagued by lack of readily available capital or a clear understanding of the value of franchise uniformity that suffer the most from problems with system compliance.  As a result smaller franchisors must strive to find the areas that truly differentiate their franchise from others and clearly define the system, system standards and at the same time, they must find less capital intensive measures to facilitate compliance by their franchisees.

One method that smaller franchisors can use is the reward system.  Reward your franchisees who do comply with system standards.  Rewards can come in any number of different approaches and are limited only by a franchisor’s imagination.  For instance, you may consider a program that awards discounts for purchases from your company to franchisees which are in compliance with system standards, or perhaps recognize compliance by a reduction in their percentage for royalty payments.  The same idea could be used to provide royalty rebates if a franchisee remains compliant for a predetermined period.  The options for a small franchisor are numerous and you don’t have to be a “McDonalds” to create an environment where franchisees want to comply.

CONCLUSION

Making a true commitment to developing, communicating and enforcing system standards will help a franchisor to ensure the consistent quality, name recognition and integrity of its franchise.  Failure to do so will lead to a continual erosion of the franchise system and its eventual collapse. 

You Must Get it from The Company Store

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For many franchising companies, the “Company Store” has been a profitable addition to their bottom line.  Franchisees must either buy all or a select number of items from the “Company Store” or alternatively, Franchisees must buy from designated suppliers who in turn pay the Franchisor a rebate.  For many Franchisees, it doesn’t matter that the Franchisor makes a handsome profit.  The convenience of one stop shopping is all that matters.  However for other Franchisees, the thought that they are being gouged (rightly or wrongly) by the Franchisor ultimately leads to litigation.

            The litigating Franchisees contend that the required purchases constitute a violation of the Sherman Antitrust Act by coercing them to purchase goods or services from specified suppliers, thus restraining competition when they should be able to make purchases from sellers of their own choosing.

            In today’s litigious environment, it is crucial for any Franchising Company selling products or services or requiring Franchisees to purchase from designated sources, to understand Federal, and just as importantly, State legal regulations before launching a required supplier program.  Not only is a Franchisor subject to Federal antitrust laws, but some States have their own antitrust laws.  Recently a State Attorney General sought to hold one of our Franchise Clients in violation of that State’s antitrust laws, a very serious charge.  Fortunately, our Client had consulted with us prior to implementing their pricing program and was ready.  The charge never materialized! 

      It is also not uncommon for States to have relationship laws which directly affect your Franchise Agreements.  As a result, you must understand how to successfully structure Franchisee programs from a legal perspective.  For example, several States restrict a Franchisor’s ability to require its Franchisees to buy goods and services from the Franchisor or its designee as well as restricting rebates.  A few States even prohibit sourcing restraints if goods of comparable quality are available elsewhere, or they place the burden on the Franchisor to show that restrictive purchasing arrangements are reasonably necessary.

            Franchisors must also pay close attention to the disclosure requirements of the Amended FTC Franchise Rule.  Now Franchisors are required to disclose supplier payments received by the Franchisor and the basis of payments made to the Franchisor from suppliers.  In most cases, a Franchisor must disclose gross revenue from required Franchisee purchases.

CONCLUSION

      With all these obstacles standing at the door, can it be said that the “Company Store” is still a good place to increase a Franchisor’s bottom-line?  Absolutely!  But, the “Company Store” takes planning before it can be opened.  It is essential that the legal requirements be understood in order to develop and properly structure the “Company Store” and the required purchase program before it is launched.  Duell Law is ready to help you.  Plan ahead.  Don’t be the next TV ad for the local Plaintiff’s lawyer which announces the multi-million dollar judgment against your Franchise Company.

Using Rewards to Ensure System Compliance

By Newsletter

The bedrock for a successful Franchise System depends upon the uniformity of its operations.  That uniformity is the essence of why consumers continually trade with one of the many Franchisees in the system.  Even though a Franchisor’s logo, name and trade address are an integral part of the system, it is a Franchisor’s trade secrets, proprietary items and business acumen that effectively give one Franchisor a competitive advantage over another.  Thus a Franchisor’s methodology of doing business constitutes one of the most important elements of the Franchise System.  Likewise, without Franchisees who comply with the system standards (methodology) there is no uniformity.  Without uniformity the Franchise System is on a downward course which eventually will reach a level where there can be no recovery.

It does not matter whether the franchise company is “McDonald’s” or a mom and pop operation, the Franchisor must exhort a willingness to protect its system standards.  Obviously a company like “McDonald’s” has the capital and manpower to enforce system standards.  Consequently a consumer knows that when they eat at a “McDonald’s” in California or Alabama they will get the same basic food.

Large Franchisors have learned that the dollars invested in enforcing system standards to create uniformity come back to them tenfold.  Unfortunately it is generally the smaller Franchisors, plagued by lack of readily available capital or a clear understanding of the value of franchise uniformity that suffer the most from problems with system compliance.  As a result smaller Franchisors must strive to find the areas that truly differentiate their franchise from others and clearly define the system, system standards and at the same time, they must find less capital intensive measures to facilitate compliance by their Franchisees.

One method that smaller Franchisors can use is the reward system.  Reward your Franchisees who do comply with system standards.  Rewards can come in any number of different approaches and are limited only by a Franchisor’s imagination.  For instance, you may consider a program that awards discounts for purchases from your company to Franchisees which are in compliance with system standards, or perhaps recognize compliance by a reduction in their percentage for royalty payments.  The same idea could be used to provide royalty rebates if a Franchisee remains compliant for a predetermined period.  The options for a small Franchisor are numerous and you don’t have to be a “McDonald’s” to create an environment where Franchisees want to comply.

CONCLUSION

Using rewards to accomplish system compliance creates a win – win for the Franchisor and Franchisee, thus ensuring consistent quality, name recognition and integrity of the Franchise. Contact Richard Duell at Duell | Law for questions about your franchise system compliance.

Avoiding the Quicksand When Requiring Exclusive Vendors and Mandatory Rebates

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For many Franchisors the use of required vendors is justified by the assurance of quality control, maintaining confidentiality, preserving trade secret information and increasing profitability for the Franchisor.  But when Franchisors adopt a restrictive approach by designating an exclusive supplier, Franchisees sometimes question prices charged as compared to other non-designated suppliers.

While Franchisees may recognize the advantages of some degree of control over sources of supply, they become very disgruntled when there is only one source of supply.  But, when a Franchisor is receiving consideration from the vendor based upon the volume of purchases from Franchisees or when the Franchisor receives a discounted price for itself or an affiliate owned operation and the discount is based upon the volume of Franchisee purchases, questions will be raised.

Even when a Franchisor requires Franchisees to use one designated supplier and/or collects volume rebates, lawsuits usually don’t spring up until a Franchisee fails to make the money it thought would be made, or worse, when the Franchisee is losing moneyDon’t wait for that dissatisfaction to fester.  Franchisors must plan in advance.  Before initiating a required supplier/vendor and/or rebate program, develop a plan to prevent potential legal claims from your Franchisees, which usually comes in three forms:

  1. Antitrust Violations – illegally tying the purchase of goods and services to the sale of the Franchise, in violation of the Sherman Act or claims that the rebates equal a sort of commercial bribery violating the Robinson-Patman Act.
  2. Misrepresentation or Fraud – This is often framed as i) negligent misrepresentation, ii) a deceptive or deficient disclosure (usually Item 8 of the Franchise Disclosure Document and not complying with the Amended FTC Rule), iii) violating state “Little FTC Acts” (which prohibit unfair and deceptive trade practices), and iv) breach of a fiduciary duty.
  3. Breach of Contract – Franchisees usually contend the Franchisor’s use or disposition of the rebate violates a contract (normally the Franchise Agreement or some ancillary agreement) between the Franchisee and Franchisor.

An Ounce of Prevention is Worth a Pound of Cure”

All of the legal claims set out above are fact specific, but in most cases could have been prevented with an advance legal plan in place.  Start by building a solid foundation and disclose supplier requirements and any rebate programs in Item 8 of the FDD.

The Amended FTC Franchise Rule requires disclosure of not only the existence of rebate programs but the amount received, officers or owners interest in required suppliers, how Franchisees get approval of alternate suppliers and the list of required information continues until full disclosure is before a Franchisee considering the purchase of a franchise.

When full disclosure is made by the Franchisor, courts are much more receptive to holding that the Franchisee entered into the Franchise Agreement with full knowledge of Franchisor’s standards and requirements, prior to executing the agreement.  Comprehensive disclosure documents and proper verbiage in Franchise Agreements will go a long way in preventing or mitigating legal actions by Franchisees.

CONCLUSION

Planning in advance is the key and may be that “ounce of prevention” that saves a Franchisor thousands or even hundreds of thousands in damages and legal fees.  Start with your Franchise counsel to avoid the pitfalls of using required vendors and mandatory rebates. 

Duell | Law would love to help Franchisors create the most effective prevention plan for potential legal claims in regards to required vendors, mandatory rebates and Franchisees. You can schedule your FREE consultation today by emailing us at info@duelllaw.com or calling 205.408.3025!

Securing Your Internet Communications

By Newsletter

The Information Age is over. We are now in what is known as the Networked Age, which features personal and professional social media profiles. Lightning fast connection speeds allow us to explore an infinite number of sites and applications through our desktops and (increasingly so) our cellphones.

But that blessing of instant communication comes with the curse of potential hackers. A variety of software feeds through the internet, grabs emails from some of the most popular web-based companies and allows hackers to selectively mine your data.

As a Franchisor, your data is sacred. In one recent lawsuit, the court stated that if intercepted emails had been sent without any form of protection (i.e. encryption), the secrecy and confidentiality of the information was forfeited and could not be maintained – a sad state for a Franchisor maintaining Trade Secrets!

If you think your Franchise Company does not need to worry about cyber security, you may be setting yourself for a not-so-pleasant attack.

So how can you protect communications over the internet?

1. Encryption: With the proper use of modern encryption, powerful cryptographic products enable individuals to securely exchange messages automatically and also secure files.

2. Intranet sites: Intranet sites allow Franchisors to create a limited-access internet network that cannot be viewed by the public, allowing you, your staff and your Franchisees to send and receive items such as software upgrades, vendor lists, training policies and other valuable Franchise information.

And why should you invest in these two processes?

1. More frequent and more secure communications with your Franchisees: No matter the amount of Franchisees your company has, keeping up with all of them can be difficult at times. A Franchisor Intranet allows for seamless communication to take place between the Franchisor and Franchisees at any time and in a way that keeps crucial and sensitive information inside the boundaries of the company.

2. A central location for uploading new training policies, company documents, and marketing materials: Trying to implement changes across an entire Franchise System can be cumbersome at times, especially if you have Franchisees spread out across the country. A Franchisor Intranet provides a convenient place for announcing new policies as well as keeping a secure archive of all the documents the Franchisees will need at any given point. Encouraging your Franchisees to use the resources uploaded to the intranet saves not only time and money, but keeps them engaged with the corporate headquarters and other Franchisees.

3. A launching pad for Franchisee compliance, increased productivity and new business: An ability to securely access your Company documents, reports, policies, Franchise Disclosure Document and Franchise Agreement allows you and your Franchisees to be fully aware and confident in ensuring compliance with your Franchise and franchise laws and regulations. The intranet can also be used for providing templates and checklists of important tasks, which can help speed up the productivity of Franchisees from month to month. Finally, a Franchise Intranet allows Franchisors to safely create strategies and timelines for developing and obtaining new business.

TODAY is the day to evaluate the security of your Franchise’s internal communications. As you launch into the New Year, join our annual compliance program designed to review your systems, and let us help you implement a plan to secure your Franchise Company’s valuable assets. Contact us now.