Class actions are a breed of their own. This workshop will guide its attendees through a simulated franchise class action, discussing the procedural and tactical issues that must be considered at each stage, starting with the pre-filing investigation, continuing through discovery and the certification process, and running until final resolution of the case, either through settlement, trial, or appeal. The panelists will also address the implications of the Proposed Law on Aggregate Litigation, and contractual waiver provisions.
Speakers:
Fredric A. Cohen
Peter C. Lagarias
W2: Franchising in the Middle East and North Africa
Notwithstanding enduring global economic and political challenges, the expansion of western-based brands into the Middle East and North Africa has grown exponentially. Perhaps surprisingly, several North American-based franchise systems have ventured to the Middle East as a means of initial entry into international franchising before entering other countries with more closely aligned cultures and legal systems. Focusing on why North American franchise systems find these markets so attractive and on their experience to date, this workshop will address these markets' unique business and legal risks as well as the know-how necessary for dealing with them. Special attention will be devoted to the risk profile for entry, including Foreign Corrupt Practices Act and corruption indices, peculiarities of the legal systems, the local enforcement environment, the impact of governmental action, protectionist laws, choice of law, forum and financial security options, and Islamic cultural, legal and financial considerations.
Speakers:
Joyce G. Mazero
J. Perry Maisonneuve
W3: Fundamentals 201: Drafting a Disclosure Document
You've read the Amended FTC Rule -- now learn how to put it to use for your franchisor clients. This workshop will explore the basics of drafting a Franchise Disclosure Document. It will cover key information that must be disclosed in the Franchise Disclosure Document and provide tips for eliciting that information from your clients. It will also include a discussion of unique state disclosure requirements, including the use of state addenda, and "best practice" drafting tips. The panel will consist of seasoned corporate franchise attorneys and a federal regulator. After completing this workshop you will have the knowledge and tools necessary to draft a Franchise Disclosure Document.
Speakers:
Joseph J. Fittante
Susan Meyer
Craig Tregillus
W4: Fundamentals 201: Franchise Litigation
Preparing a franchise case for trial takes more than knowledge of the basic causes of action - seasoned franchise trial lawyers know other crucial "tricks of the trade" that can make the difference between a decisive victory and a “what-just-happened?” defeat. The moderators of this program have cultivated this know-how through decades spent in the trenches, litigating and trying franchise disputes. This session will analyze the most common fact patterns and legal theories litigated between franchisors and franchisees, including those arising from the breach of a franchise agreement, the implied covenant of good faith and fair dealing, and state franchise statute protections. They will also address procedural and practical issues frequently encountered in franchise disputes and how to deal with them most effectively, from the perspective of both the franchisor and the franchisee.
Speakers:
Michael D. Joblove
Robert Zarco
W5: Growth Through Multi-Unit Franchising
This program will consider the many different methods of franchising, their features, benefits, and disadvantages and, using real examples, compare and contrast these distribution methods. The speakers will address the pros and cons of single and multi-unit franchising strategies, master franchise agreements, area developer agreements, area representative agreements, joint ventures, and structures less frequently used. Other specific issues and questions to be covered include: What are the specific disclosure issues raised by each model?? Should the franchisor or the master franchisee draft the local unit franchise agreement? What should the franchisor do to maximize market development? What is the effect of termination or expiration on the system? How can the franchisor mitigate its exposure if the relationship fails?
Speakers:
Leslie D. Curran
Craig S. Prusher
Jayne Westlake
W6: National Customer Account Management Issues
Some franchisors need a national account program to do business with customers who: may be too large to be serviced by a single franchisee; need service in diverse geographic areas; or prefer a single contact in order to control pricing, billing and customer satisfaction.This program will focus on best practices for structuring and administering a national account program to meet the needs of customers, franchisees and franchisors.The speakers will discuss the legal and business issues that arise from a national account program, including benefits, encroachment issues, discrimination claims, good faith and fair dealing claims, pricing and antitrust issues, and other related distribution issues.
Speakers:
Michaele (Shelley) Weatherbie
Gerald C. Wells
W7: Protecting and Enforcing Trade Dress
In the competitive business world, franchisors strive to protect their brand. While many franchisors protect their brand through vigorous registration and enforcement of their trademark rights, a less well-known and understood intellectual property right is the right to protect the look and feel of a franchise business -- what is known as its “trade dress”. This workshop will explore the difference between trademark and trade dress rights, how they differ from design patents, and address how franchisors can best protect their trade dress rights in both proactive and reactive ways, including registration and through litigation. The speakers will also discuss the costs and risks involved in either not protecting the trade dress, or attempting to enforce unprotectable aspects of the system.
Speakers:
Linda K. Stevens
Mark S. VanderBroek
W8: Best Practices for State Franchise Registration
Navigating the nuances of state franchise registration can sometimes be a confusing and frustrating process. This program will provide valuable insight and best practices for obtaining and maintaining franchise registrations, including tips for expediting the registration process. Hear from a state regulator, and other legal professionals, including a paralegal with experience in the franchise registration process as to the common issues that delay franchise registration and tips to overcoming these issues, including available financial assurance options.The speakers also will address the impact on registration of recent changes to certain state franchise registration and disclosure laws, use of state specific addenda to meet state requirements and the use of the new NASAA registration forms. The panel also will consider best practices for tracking filing and expiration dates and comment letter response deadlines.
Speakers:
Dale E. Cantone
Halima Madjid
Leonard D. Vines
W9: Bringing a Foreign Franchise System to the United States
As franchising becomes a popular global growth method of distributing goods and services, there is increasing interest by foreign companies to expand their franchise systems into the U.S.Exporting a franchise system to the U.S. involves a variety of cross-border business and legal issues. The purpose of this program is to advise U.S. and other legal counsel on the critical issues surrounding entry into the U.S. market. Topics to be canvassed include: trademark use and registrations (including the impact on business opportunity law exemptions); corporate and tax structuring (including parent disclosure requirements and transfer pricing); franchise disclosure and registration; the use of test stores; accounting and auditing standards for financial statements under the Revised FTC Rule and state franchise laws; formation and capitalization of a U.S. operating subsidiary (including state imposed escrow, surety bond, or fee deferral requirements); preparation of financial performance representations based on foreign operations; immigration law issues; risk management (including choice of law, choice of forum, jury trial waivers, and dispute resolution mechanisms preferred in the United States); adaptation of a foreign system to American culture; and review of operating and training manuals.
Speakers:
George J. Eydt
Stuart Hershman
W10: Common Discovery Issues in Franchising: From the Advocates and a Decision-Maker
Given the increase in pre-trial disclosures required under Federal Rule of Civil Procedure 26, the broad scope of what constitutes discoverable evidence, and the massive amount of electronically stored information, it is no wonder that discovery has become such an expensive and cumbersome process. This program will highlight the common discovery issues litigated in franchising, the meet and confer process, pre-trial stipulations of the parties, the use of protective orders, the standards for quashing a subpoena, and the role of a special master in complicated or document-intensive cases. Workshop attendees will learn strategic tips from franchise counsel for navigating the discovery process, as well as the view of a Federal Magistrate Judge on how to approach these issues.
Speakers:
Fiona A. Burke
Magistrate Judge Jeffrey J. Keyes
Himanshu M. Patel
W11: From License Agreement to Regulated Relationships: The Accidental Franchise
Is your sales representative agreement, license agreement, or dealership contract really what it seems? Not every company distributing goods or services wants to be a franchise. But calling a contractual relationship something other than a franchise does not prevent it from being deemed one if the relationship meets the elements of a franchise under applicable law.This workshop will explore the successful and unsuccessful ways of structuring a distribution system to avoid the applicability of franchise laws, related special industry statutes, business opportunity laws, and exemptions under these statutes. Speakers will address litigation and regulatory risks involved in inadvertent franchises, as well as the consequences of non-compliance.
Speakers:
Kenneth R. Costello
Beata Krakus
Kristy L. Zastrow
W12: Mediation: Negotiating Franchise Disputes
For franchisors and franchisees alike, litigating disputes that arise in their business relationship is becoming increasingly expensive. Often the parties, or the judge presiding over a dispute, raise the idea of mediation. But several questions need to be addressed before signing up for mediation; for instance, when should mediation be pursued? In what circumstances is it most effective? Who should participate? And is there a value to engaging in mediation beyond its potential to result in a settlement? This workshop will investigate the forms and elements of mediation, as well as the strategic, procedural, and ethical issues that arise in typical franchise mediation.
Speakers:
Peter J. Klarfeld
Michael K. Lewis
Peter R. Silverman
W13: Managing the Organization of a Franchise Association
Independent franchisee associations are typically formed when franchisees are facing difficult times, a system-wide catastrophe occurs, or the franchisor is seen as not responsive to the franchisees’ problems.In a challenging economic climate, a franchisor may even desire that a franchisee association is formed – possibly a novel concept, but a controversial suggestion to some franchisors.Also, during a challenging economic climate, do associations become more demanding of franchisors to address their issues more regularly--or are they really just facing the same challenges as the franchisor and are merely reaching out for help--the same help that franchisors may need from the franchisee community? This workshop will consider how franchisee associations can be more effective and how a franchisor interacts with what is often perceived as a difficult situation.The workshop will address why associations form, how the association and franchisor can engage each other, and the question can an association be an effective tool for both sides to work together for the system, especially during economic downturns.
Speakers:
Harris J. Chernow
Roger Schmidt
W14: The Sometimes Blurry Line Between Independent Contractors, Franchisees, and Employees
Although manufacturers and franchisors intend for distributors and franchisees to operate as independently owned businesses, some distributors and franchisees may contend that they are employees for purposes of unemployment compensation, workers' compensation or anti-discrimination laws.Also, taxing authorities, eager to raise revenue, may audit franchisors and manufacturers to collect employer based taxes, notwithstanding the intended structure of their relationships with franchisees and distributors.This workshop will explore the distinctions in the relationships between franchisors and independently owned franchisees versus the relationships between employers and employees, the potential consequences of efforts to redefine such relationships and recent case law addressing these issues.The speakers will also offer best practices in structuring these relationships at the outset, and responding to claims when they arise, in order to preserve the independent relationship as intended.
Speakers:
Carla Wong McMillian
Arthur L. Pressman
W15: Franchise Systems in Distress
With the economic downturn, almost all franchise and distribution systems are feeling the challenges of a tight credit market, decrease in demand, and financial instability. This workshop will cover the common scenarios that franchisors and franchisees face in a financially distressed market and how to manage them, with a focus on legal and business considerations for franchise systems that are at a particularly high risk of failure.This workshop will address franchisee assistance and incentive programs (including any regulatory and other limitations on such programs), workouts, franchisor bankruptcy, market withdrawal, unit closures and the inability of franchisees to meet development schedules, sales targets and other performance goals, all in the context of considering legal and business means to survive the downturn and prosper from a recovery.
Speakers:
Robert A. Lauer
Scott W. Hansen
W16: Is Franchising Abandoning Arbitration? Current Trends in Arbitrating Franchise Disputes
Historically, courts in the United States have enforced a liberal federal policy in favor of arbitration as a less costly and less formal alternative to proceedings in court. Today these purported advantages are being called into question as costs skyrocket and arbitration begins to resemble simply another form of litigation, rather than an alternative method of dispute resolution. In addition, some courts have issued recent decisions suggest a continued hostility toward arbitration.As a result of these factors, some franchisors are starting to question the desirability of arbitration for the resolution of disputes. This workshop will investigate the extent to which franchisors still turn to arbitration to resolve disputes and whether arbitration remains a viable option for franchisors and franchisees, particularly in light of the recent court decisions. Workshop participants will discuss the positive and negative attributes of arbitration, comparing the flexibility, simplicity, and private nature of arbitration proceedings with their unpredictability and limited appealability. Best practices for drafting arbitration clauses (including procedural considerations and arbitration tribunal options) will also be discussed.
Speakers:
Julianne C. Lusthaus
Leslie Smith-Porter
Quentin R. Wittrock
W17: Establishing Effective Early Intervention Programs to Manage Day-to-Day Disputes, System Standard Compliance, and System Changes
Facedwith escalating costs of resolving day-to-day disputes withfranchiseesthrough traditional litigation or formal ADR procedures, somecompanieshavecreatedearlyinterventionprogramstoaddress franchisor-franchiseeissuesbefore they fester into legal disputes. This workshopwillexploreleadingedgein-houseearly conflict resolution programsthatsomefranchisecompanieshaveimplemented,including mandatorycommunication procedures, ombudsman programs, franchise advisory councils, and franchisee peer review panels.
Speakers:
Constantine (Dean) Fournaris
Sherin Sakr
Sue Vandittelli
W18: Litigating Claims of Fraud In Connection with the Sale of a Franchise
One of the most commonly asserted claims in franchising is fraud: an accusation by a franchisee that it was fraudulently induced to purchase a franchise.This workshop will delve into the world of franchise sales to examine the types of fraud claims that typically arise from the sale of a franchise and how to effectively litigate or defend against them.The speakers will explore fraud claims brought under common law, franchise statutes and little FTC Acts, discussing, among other things, the nuances involved in litigating a misrepresentation or material omission case; the importance of determining the role of reliance in the fraud claim; and the range of remedies available to the parties.The speakers will also address proactive measures counsel for both franchisors and franchisees can implement to minimize the risk of future fraud claims.
Speakers:
William L. Killion
Scott E. Korzenowski
W19: How to Prepare a Franchise System for Expansion to Europe
Europe is a huge market of over 700 million people and, on its face, appears to present a tremendous opportunity for the expansion of franchise systems. In some ways, through the European Union, the continent is one common market, with streamlined laws and practices, intended as a “United States of Europe.” But in other ways, it remains a bloc of over 27 distinct jurisdictions, each with its own language, culture, legal system, and attitude towards franchising as a method of doing business. In this workshop, experienced franchise counsel will guide the audience in the business and legal issues that franchisors need to take into account if and when they consider expansion of a franchise system into one or more of the countries of Europe. The session will specifically cover several key jurisdictions as well as an outlook on European legislation after the expiration of the EU Block Exemption Regulation in 2010.
Speakers:
Marco Hero
Stephane Teasdale
W20: Legal Issues Surrounding Transfers, Assignments, and Resale Programs
If asked, every franchisor and franchisee would admit to the possibility that the franchisee will want to sell its franchise at some point during the term of the franchise agreement. Yet, this event, while foreseeable, is still a common source of friction and dispute between franchisor and franchisee. This workshop will consider the business and legal dynamic from the franchisor’s and franchisee’s perspectives, including standards of consent, typical and not so typical transfer conditions, renovation and upgrade requirements, a franchisor’s internal transfer procedures and involvement in the process, franchisor resale programs, rights of first refusal and their use in the real world, involuntary transfers arising from death and disability, enforcement of security and divorce, as well as increasingly difficult issues relating to franchisor and franchisee assessment of candidates, value and price. This program will survey these issues, as well as the litigation considerations and case law in this area.
Speakers:
Brian Balconi
Kevin M. Shelley
W21: Hot Button Privilege Issues for Franchise Counsel
Knowing what communications and information are protected by the attorney-client privilege is critical for franchisor and franchisee counsel.This workshop will explore the line between when an in-house counsel is providing business or legal advice, recent developments related to the scope of the privilege, exceptions to the privilege, procedural aspects of asserting the privilege, waiver or selective waiver of the privilege, and the related attorney-work product doctrine. The sweep and impact of New Federal Rule of Evidence 502 will also be analyzed.
Speakers:
Eric H. Karp
Philip L. Wharton
W22: Recent Trends in Litigating Non-Compete Agreements
Enforcement of a non-compete agreement continues to be one of the most litigated issues between franchisors and franchisees. Many franchisors, particularly those with newer systems, consider enforcement of a non-compete critical to the continued survival of their system. Many franchisees view the non-compete as the death knell to their ability to survive financially. Moreover, the law of different states can vary substantially with respect to the enforcement of these provisions.This workshop considers the best arguments for enforcing a non-compete contained in a franchise agreement and the best arguments against it. The panel will analyze recent case law developments and their implications for procedural and substantive litigation strategies relating to enforcement. The panelists will also address strategies and drafting tips for post-termination provisions in jurisdictions where a non-compete provision may not be enforced.
Speakers:
Michael J. Boxerman
William K. Whitner
W23: Territory, Exclusivity and Encroachment - Thinking Ahead of the Curve and Dealing With the Fallout
Franchisors want to preserve their growth options; franchisees want certainty of market protection. The drafting of territorial grants, exclusivity clauses, and reserved rights is an art unto itself and should involve a serious understanding of the nature of the franchise system, possible growth areas, methods of determining territory or market share, and flexibility of applying standards. This workshop will consider the pros and cons of providing different types of territorial protection, exclusivity, and reserved rights; and discuss the proper drafting of such clauses, the means of amending or revising such rights, and the use of impact policies, performance criteria, objective resource standards or measurements. Applicable franchise disclosure document requirements will be reviewed. In addition, litigation issues and leading cases will be considered.
Speakers:
Erika L. Amarante
Andraya C. Frith
Karen B. Satterlee
W24: Sourcing Products and Services for the System: Efficiencies and Traps in Supply Chain Management and Outsourcing
Many franchisors seek to strictly control the source of products and/or services used or obtained by their franchisees, often by designating approved products, services, suppliers, or outsourcing. These structures although common, are also commonly under attack by franchisees and third-party suppliers excluded from the authorized list. In certain instances, franchise systems adopt franchisee-led cooperatives to act as purchasing agent. This workshop will explore the tension between control and economics in supplying products to the system, including vendor rebates.Attendees will learn the best practices in structuring and negotiating franchise supply arrangements, and how to address these arrangements in the franchise agreement.
