FRANCHISE SALES AND DISCLOSURE LAW ......FRANCHISE SALES AND DISCLOSURE LAW COMPLIANCE ISSUES DAVID...
Transcript of FRANCHISE SALES AND DISCLOSURE LAW ......FRANCHISE SALES AND DISCLOSURE LAW COMPLIANCE ISSUES DAVID...
FRANCHISE SALES AND DISCLOSURE LAW
COMPLIANCE ISSUESDAVID J. KAUFMANN
Kaufmann, Feiner, Yamin, Gildin & Robbins LLPNew York, New York
JOEL R. BUCKBERGBaker Donelson Bearman, Caldwell & Berkowitz, P.C.
Nashville, TennesseeAdministrator, IFA Compliance Training
AN OVERVIEW OF THE LAW OF FRANCHISINGTHEY DIDN’T SEE IT COMING: THE GENESIS OF FRANCHISE
REGULATION
AN OVERVIEW OF THE LAW OF FRANCHISING
INTRODUCING THE THREE BODIES OF FRANCHISE LAW:
• FEDERAL AND STATE REGISTRATION / DISCLOSURE STATUTES
• STATE ‘RELATIONSHIP’ LAWS• FEDERAL AND STATE BUSINESS
OPPORTUNITY LAWS
FEDERAL AND STATE FRANCHISE REGISTRATION/DISCLOSURE LAWS
• FTC FRANCHISE RULE (NO REGISTRATION REQUIRED – DISCLOSURE ONLY)
• 3 State Approaches:– Merit Review– Annual Notice Filing– Single Notice Filing
FEDERAL AND STATE FRANCHISE REGISTRATION/DISCLOSURE LAWS
• CALIFORNIA• HAWAII• ILLINOIS• INDIANA• MARYLAND• MICHIGAN• MINNESOTA• NEW YORK
• NORTH DAKOTA• OREGON• RHODE ISLAND• SOUTH DAKOTA• VIRGINIA• WASHINGTON• WISCONSIN
FEDERAL AND STATE FRANCHISE REGISTRATION/DISCLOSURE LAWS
Annual Notice Filings:
• Florida• Indiana• Michigan• Utah• Wisconsin
Single Notice Filing:
• Connecticut• Kentucky• Nebraska• Texas
STATE FRANCHISE RELATIONSHIP LAWS
• ARKANSAS • MINNESOTA• CALIFORNIA • MISSISSIPPI• CONNECTICUT • MISSOURI• DELAWARE • NEBRASKA• HAWAII • NEW JERSEY• ILLINOIS • SOUTH DAKOTA• INDIANA • VIRGINIA• IOWA • WASHINGTON• MICHIGAN • WISCONSIN
BUSINESS OPPORTUNITY LAWS
• ALABAMA• ALASKA• CALIFORNIA• CONNECTICUT• FLORIDA• GEORGIA• ILLINOIS• INDIANA• IOWA• KENTUCKY
• LOUISIANA • MAINE • MARYLAND • MICHIGAN • MINNESOTA • NEBRASKA• NEW
HAMPSHIRE • N. CAROLINA• OHIO
• OKLAHOMA • S. CAROLINA • S. DAKOTA • TEXAS • UTAH• VIRGINIA • WASHINGTON • FTC
FRANCHISE RULE
THE FTC FRANCHISE RULE
• WHAT IS COVERED / WHAT IS REQUIRED• LIMITED PREEMPTION OVER STATE
FRANCHISE LAWS
THE FTC FRANCHISE RULE
• THE DISCLOSURE “TRIGGER”• UPDATING DISCLOSURES• PROHIBITED PRACTICES /
PENALTIES FOR NONCOMPLIANCE
THE FTC FRANCHISE RULE
• NO PRIVATE RIGHT OF ACTION (BEWARE STATE ‘LITTLE FTC ACTS’ HOWEVER!)
• REVISIONS TO THE FTC FRANCHISE RULE ANNOUNCED JANUARY 22, 2007; PHASED IMPLEMENTATION 2007-2008
STATE FRANCHISE REGISTRATION/DISCLOSURE
LAWS
• SCOPE OF COVERAGE – WHAT IS A FRANCHISE? (BEWARE THE INADVERTANT FRANCHISOR SCENARIO)
STATE FRANCHISE REGISTRATION /
DISCLOSURE LAWS• DISCLOSURE TRIGGER – THE “OFFER”• JURISDICTIONAL COVERAGE – WHICH
STATE LAWS MAY APPLY?( WHERE OFFERED / WHERE ACCEPTED / FRANCHISEE’S RESIDENCE / WHERE UNIT WILL BE LOCATED )
STATE FRANCHISE REGISTRATION/DISCLOSURE
LAWS
THE UNIFORM FRANCHISE OFFERING CIRCULAR (“UFOC”) – WHAT IT IS;
HOW IT CAME TO BE; WHAT IT MUST CONTAIN.
STATE FRANCHISE REGISTRATION/DISCLOSURE
LAWS
• HOW DO YOU GET REGISTERED?
• A REVIEW OF THE REGISTRATION PROCESS
STATE FRANCHISE REGISTRATION/DISCLOSURE
LAWS
REGISTRATION OF SALESPERSONS AND FRANCHISE BROKERS (AND
THE DIFFERENCE BETWEEN THEM)
STATE FRANCHISE REGISTRATION/DISCLOSURE
LAWS
FILING REQUIREMENTS FOR FRANCHISE ADVERTISING
(AND JUST HOW IS THE WORD “ADVERTISING” DEFINED IN THE
FRANCHISE REGULATORY WORLD?)
STATE FRANCHISE REGISTRATION/DISCLOSURE
LAWS
EXEMPTIONS FROM STATE FRANCHISE REGISTRATION /
DISCLOSURE REQUIREMENTS
STATE FRANCHISE REGISTRATION/DISCLOSURE
LAWS
FRANCHISOR CAPITALIZATION REQUIREMENTS
STATE FRANCHISE REGISTRATION/DISCLOSURE
LAWS
UFOC AMENDMENTS / RENEWALS OF FRANCHISE REGISTRATIONS
STATE FRANCHISE REGISTRATION/DISCLOSURE LAWS
Penalties For Noncompliance• What is prohibited?• What powers do state franchise
administrators possess to investigate/order/litigate/prosecute?
• What civil and criminal penalties may be assessed – and against whom?
• What rights do franchisees have to go to court?
FEDERAL AND STATE FRANCHISE
REGISTRATION/DISCLOSURE LAWS
PERMITTED AND PROHIBITED NEGOTIATIONS WITH
PROSPECTIVE FRANCHISEES
FEDERAL AND STATE FRANCHISE
REGISTRATION/DISCLOSURE LAWS
EARNINGS CLAIMS / FINANCIAL PERFORMANCE REPRESENTATIONS
• What are they?• When can / can’t I make them?• How can I sell a franchise without them?• Beware the inadvertent earnings claim!
STATE FRANCHISE RELATIONSHIP LAWS
• TERMINATION / NONRENEWAL• TRANSFER AND ASSIGNMENT• ENCROACHMENT / GOOD FAITH• DISCLOSURES TO TRANSFEREES• PENALTIES FOR NONCOMPLIANCE
BUSINESS OPPORTUNITY LAWS:
AN OVERVIEW
THE FRANCHISE LAW COMPLIANCE PROGRAM
WHAT IT IS – AND WHY YOUR COMPANY NEEDS ONE!
WHY YOU SHOULD CARE ABOUT THE FEDERAL SENTENCING
GUIDELINES
FRANCHISE SALES AND DISCLOSURE LAW
COMPLIANCE ISSUES
•CONCLUSION•QUESTIONS AND ANSWERS