W-1 Advanced Disclosure Issues Under the Amended FTC Rule
This advanced program is a must if your practice involves franchise registration and disclosure work. The panel will review the recently issued FTC Compliance Guide, the issues clarified by the Guide, and those left unresolved. The presenters will also identify and address state-specific disclosure issues still outstanding after adoption by some registration states of the amended FTC Rule. Finally, the presenters will discuss e- disclosure issues and share practice tips on thorny disclosure issues created by the amended Rule.

  Dale Cantone Lee J. Plave William K. Woods

W-2 A Basic Overview of Franchise and Consumer Advertising Standards
This program focuses not only on franchisee solicitation materials but also on consumer advertising at the unit level. The program will discuss the different types of advertising being used to solicit franchisees, what constitutes franchise advertising under various state laws, which states require the filing of advertising, timing of state approval, exemptions or exclusions from state law for certain types of advertising, and unique state requirements with respect to advertising. With respect to consumer advertising, the panel will discuss FTC guidelines on representations in advertisements, consumer or competitor false advertising claims, copyright infringement issues, and what constitutes mere “puffery”.

  Carol Anne Been Sarah J. Yatchak

W-3 Calculating and Proving Damages in Franchise Termination Cases
How do you prove damages in a franchise termination case? Can the franchisor recover lost future royalties if the termination is found justified? Can the franchisee recover lost future profits if the termination is found unjustified? Are liquidated damages provisions desirable and enforceable? Can punitive damages be awarded for a bad faith wrongful termination? This program will cover the theory of contract damages and its development under the laws of different states in franchise cases. It will also address use of expert witnesses in valuing a franchised business whose franchise agreement has allegedly been wrongfully terminated. Franchisor and franchisee counsel and an experienced damages expert will discuss these issues.

  Christopher P. Bussert Robert M. Einhorn Christopher A. Martinez

W-4 Recent Changes and Trends in International Franchise Laws
The international regulation of franchising grows every year as new countries introduce or amend their franchise laws. This round-up session will summarize the most significant international franchise developments in the past three years. The speakers will discuss the recent adoption of franchise sales laws in Belgium, Sweden, Viet Nam, and an additional Canadian province, and review significant changes to the franchise laws in Australia, China, Indonesia, Mexico, South Korea, and Spain.

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  Andrew P. Loewinger John Pratt

W-5 Determining the Rules of Engagement in Litigation Here and Abroad
“The Rules of Engagement” in litigation are the initial procedural decisions regarding personal and subject matter jurisdiction, venue and transfer, and the applicable law. The Rules of Engagement were reported in last year’s Annual Developments program to be the subject most commonly addressed in reported franchise decisions. Moreover, these initial skirmishes often promote early settlement, either because there is a ruling that the case will proceed in a venue that is considered inhospitable or because the law found to apply is considered unfavorable to one party. This program will provide an overview of the current domestic and international law on these issues as they are presented in franchise litigation, discuss the extent to which these issues can be controlled contractually, and highlight tactical opportunities.

  Kirk W. Reilly Robert F. Salkowski Geoffrey B. Shaw

W-6 Operating Manuals – The Devil is in the Details
This program will include an overview of franchise Operating Manuals, and discuss the timing, process and purpose of writing the Operating Manual, what information should be covered in it and the various forms that the Operating Manual may take. The panelists will also discuss techniques for drafting franchise agreement provisions relating to the Operating Manual; limitations on and risks relating to effecting system change through the Operating Manual; and vicarious liability and joint employer issues arising out of the Operating Manual.

  Amy Cheng Craig Dietz David W. Oppenheim

W-7 Anatomy of the Sale of a Brand
As evidenced by the recent high profile sales of some large franchise companies, merger and acquisition activity in the franchise sector has heated up. This program is a must for any practitioner who may be involved in the acquisition or sale of a franchise company. The panel will discuss due diligence, disclosure, and encroachment issues, challenges in integrating multiple brands when each retains its prior identity, conversion issues when franchisees of one brand convert to the other brand, and the complexities associated with operating multiple brands post-sale. The program will also explore the common provisions found in an acquisition agreement.

  Charles S. Modell Mark A. Robertson

W-8 Franchising in Unique Venues
What issues are presented when a franchisor allows a second franchise to be operated within a host brand (for example, a branded restaurant within a hotel) or grants franchises in venues such as military bases, airports, sporting facilities and similar locations? This program will explore the legal issues that arise in these types of situations. The program will also address how to negotiate and contract with governmental and quasi-governmental agencies that operate or bid out concessions to be operated on government property and how to deal with Requests for Proposals (RFPs) and set-asides for local, minority or small/disadvantaged ownership.

  Adam Ekberg Jeffrey A. Brimer Scott P. Weber

W-9 Consumer Class Actions and Actions by State Attorneys General Against Franchisors and Franchise
From suits under the federal Fair and Accurate Credit Transactions Act (FACTA) to deceptive advertising claims, franchisors and franchisees are increasingly being sued in class actions filed by consumers and in actions filed by state attorneys general to vindicate perceived consumer rights. Those suits present difficult strategic decisions for counsel, whether a franchisor, a franchisee or both are named as defendants. This program will discuss the nature of the current wave of claims; how potential vicarious liability theories, indemnity obligations and other tensions in the franchisor-franchisee relationship can complicate the defense; how insurance coverage issues can affect the choice and role of counsel; strategies for resisting class certification; and strategic and ethical considerations involved in settlement of class claims.

  Paula J. Morency Cynthia W. Scherb

W-10 Vicarious Liability
When a franchisee breaches a legal duty to a customer or an employee, is the franchisor also liable? What are the practical issues that arise in defending cases where both the franchisor and franchisee are sued based on actions by the franchisee? This program will focus on key areas in which franchisors have been subjected to claims of vicarious liability and discuss the law governing such claims. It will also examine the practical considerations that arise in defending claims brought by injured third parties, including the extent to which the franchisor’s and franchisee’s interests are aligned, the desirability of a joint defense, the role of insurance coverage in structuring the defense, and juror preconceptions regarding the control exercised by a franchisor over a franchisee operating under its marks.

  Cynthia M. Klaus Jason M. Murray Heather L. Smedstad

W-11 Navigating the Exemption/Exclusion Maze under the amended FTC Rule and State Laws
This program will analyze the exemptions to, and exclusions from, the amended FTC Rule, highlighting unresolved issues relating to qualification for and use of these exemptions and exclusions. The presenters will also compare the exemptions and exclusions at the federal level with those found at the state level and discuss the differences between the regulatory schemes. The program will analyze state-specific differences in exemptions and discuss the effect of state business opportunity laws on exemption usage in non-registration states. Finally, the program will touch on what it means to be “exempt” and identify state peculiarities in qualifying for an exemption.

  Earsa Jackson Karen B. Satterlee

W-12 Cost Containment Strategies for Franchisor/Franchisee Disputes
This program will explore the challenges of managing the expense of franchise litigation from the perspectives of both franchisor and franchisee. What strategies can be utilized to monitor and managecosts of disputes between franchisors and franchisees? What techniqueswork and why are some more successful than others? What are the pros and cons of engaging in alternate dispute resolution? How can you manage franchise litigation and arbitration efficiently, and spend less, without compromising the ability to present your case effectively? The panel will bring the benefit of experience and insight to these difficult and important questions.

  Marcus A. Banks James A. Goniea Michael Einbinder

W-13 New Media Threats - Responding to Cyber-Attacks
Many companies have had to confront what to do when a disappointed customer vents his or her complaints over the Internet. Franchisors face additional problems since unhappy franchisees may also take to the Web to air their grievances and, in so doing, may disclose confidential or proprietary franchisor information. This program will review some of the steps a franchisor might take when dealing with complaints that appear on the Internet. The presenters will review the myriad ways that an unhappy person can communicate potentially harmful views electronically. They will also discuss the increasing tension between trademark law on one hand and principles of free speech and fair use on the other, as reflected in such matters as fights over Internet domain names and third parties’ use of marks in communications critical of the mark owner. The presenters will also provide a basic overview of trade libel laws and address franchise agreement language that can be used to address these issues.

  Priscilla L. Dunckel Michael K. Lindsey

W-14 Litigating a Claim Under the PMPA
This program will address the procedural and strategic aspects of litigating a wrongful franchise termination claim under the Petroleum Marketing Practices Act (“PMPA”). It will examine from the franchisor and franchisee perspectives the issues encountered at the preliminary injunction stage, the summary judgment stage and at trial on the merits. The presenters will pay particular attention to common evidentiary issues and pitfalls, expert witness strategies, and damages claims. They also will discuss strategies for the presentation of evidence, arguments of counsel, and jury instructions. The program will also explore the extent to which the PMPA may preempt state common law and statutory claims.

  Albert J. Barr Michael J. Lockerby David M. Harris

W-15 Depositions in Franchise Cases
Preparation of witnesses for depositions in franchise disputes can make or break a case. This program will discuss strategic and privilege issues that must be addressed in preparing franchisor and franchisee officers, employees and expert witnesses to be disposed. It will also explore the issues presented by requests to depose franchisor and franchisee corporate representatives. When the deposition of a corporate representative is required, is it desirable to designate someone who was involved in the events that are the subject of the litigation, and if such a person is designated, can the deposition go beyond the topics listed in the deposition notice? What does it mean to say the franchisor or franchisee is “bound” by the testimony of a designee, and what are the obligations of the designated witness to gather information known to the organization? What techniques exist to control this kind of deposition and keep it within its proper bounds? These and other issues that will help bring deposition practice into focus will be discussed by a panel of veteran litigators.

  Jeffrey S. Haff Dennis R. LaFiura

W-16 Financial Performance Representations – Shield or Sword?
This program will address the effect of the amended FTC Franchise Rule on financial performance representations, including a discussion of what types of information constitutes a financial performance representation, the different types of financial performance representations permitted by the amended Rule and the minimum information required to be included in the representation. It will also discuss the effect of state laws on these representations and recent case law in this area. The presenters will seek to identify approaches franchisors can use to provide franchisees with useful earnings information in a manner consistent with the amended Rule.

  Anne Connelly Brian B. Schnell Andrew C. Selden

W-17 Ethics Issues in a Multi-Jurisdictional Franchise Practice
Our clients, franchisors and franchisees alike, are often located in many parts of the country. Most of us, however, are licensed to practice law in only one or two jurisdictions. If we are not licensed to practice law in a particular state, may we: litigate, arbitrate or mediate there; counsel or draft documents for clients who are located there; meet with clients there to discuss legal issues; conduct internal investigations there; file franchise or business opportunity registration applications and deal with franchise regulators there; or advertise that we have a “national franchise practice?” What are the consequences of engaging in the unauthorized practice of law? Do communications that would otherwise be privileged lose their protection if unauthorized practice is found? This program will explore these and other ethical issues that regularly confront lawyers engaged in a multi-jurisdictional franchise practice.

  Rupert M. Barkoff John R.F. Baer.

W-18 Franchising in the BRIC Markets (Brazil, Russia, India and China)
This program will look at the hottest international markets that franchisors are currently entering, namely Brazil, Russia, India, and China (BRIC), which Goldman Sachs has predicted could, in less than 40 years, together be larger than the G6 in US dollar terms. Although these countries present franchisors with great opportunity, there are substantial legal and business issues that must be resolved. For example, in China and India finding the right local partner can be challenging. IP piracy is a major problem in China and Russia. There are basic operational issues, as well as specific formalities that must be carefully addressed, in India and Brazil. This program will help franchisors identify the legal and practical hurdles to future overseas development.

  Mark Abell Daniela C. Brito Paul D. Jones

W-19 When Franchisors Compete – Understanding the Boundaries Between Healthy and Unfair Competition
What are the rules when one franchisor seeks to increase its market presence by wooing away franchisees of a competing franchise system? This program will explore the current state of the law on tortious interference with contract and prospective business relations, and address other claims franchisor competitors may make against one another. It will also address remedies available to franchisors when a competitor makes false or disparaging comparisons. The panel will discuss what communications, if any, a franchisor may have with current franchisees of a competitive system and best practices for avoiding potential liability for tortious interference and other competition claims. The program will also provide franchise agreement drafting tips that can influence the outcome of these issues and assess the issues that can arise in reporting competitors to regulatory agencies.

  Robin C. Gipson Edward Wood Dunham

W-20 Litigating Disclosure Claims
The panel will discuss issues peculiar to litigating claims based on alleged deficiencies in franchise disclosure documents. What are the available claims and possible defenses in litigation arising under the federal and state franchise registration and disclosure laws? What is a “material omission”? Is “reliance” necessary to succeed on a claim, and, if so, may reliance be presumed? If the language of the franchise agreement is clear but the description of a party’s rights in the disclosure document is contradictory, does the disclosure document modify the contract or is it only a disclosure violation? Does an integration clause in the contract effectively insulate the contract from the disclosure document? What if the relevant state statute forbids waiver of disclosure claims? What are the relevant statutes of limitations and what remedies are available to an aggrieved party? This program will attempt to sort out these and other thorny issues that arise in this area.

  David M. Byers Deborah S. Coldwell John D. Holland

W-21 Controlling Franchisee Pricing After Leegin
A panel of franchise antitrust experts will address the effect of the United States Supreme Court’s 2007 Leegin decision on franchisor restriction of franchisee pricing freedom, and how that decision has been applied, limited and used. The program will also address the effect of Leegin on price control provisions contained in state antitrust statutes and existing franchise agreements, the practical considerations franchisors face in exercising this newly granted power, and proposed federal legislation designed to cut it back.

  Kay Lynn Brumbaugh Arthur I. Cantor

W-22 Inside a Franchise Arbitration
What exactly happens in arbitration, and how do you decide whether arbitration is something you should recommend to your client? With all the recent discussion regarding the enforceability of franchise arbitration provisions, a basic understanding of what is involved in arbitration sometimes falls by the wayside. This program will present a window into how franchise arbitrations generally work and what it is like to be part of the arbitration process. The panel will discuss how arbitrators are chosen to decide a particular case, how the pleadings in arbitration differ from those in litigation, the type of discovery that is likely to be allowed, how the arbitration hearings are conducted, how long the case might take and how much the process will cost. The program will also consider whether the arbitration process can accommodate itself to cases presenting issues of different levels of complexity, what powers an arbitrator has with respect to third party witnesses, and to what extent an arbitrator’s decision can be reviewed by a court.

  Bethany L. Appleby Richard L. Rosen David L. Steinberg

W-23 Representing and Dealing with Multi-Unit Franchisees-Does Size Really Matter?
Do the size and sophistication of multi-unit franchisees translate into greater bargaining power when dealing with the franchisor, whether before the sale or during the franchise relationship? How can multi-unit franchisees leverage size to obtain bargaining power? Are the needs and interests of multi-unit franchisees always consistent with those of the franchisor and other franchisees? This program will also address issues common among multi-unit franchisees, such as corporate structure, the use of holding companies and operating companies, development schedules, personal guarantees and unit managerial responsibility. From the franchisor’s perspective, it will offer tips for drafting to deal with multi-unit ownership issues and discuss steps franchisors can take to protect their interests.

  Brian H. Cole L. Seth Stadfeld

W-24 I’ve Got a Secret (Don’t I?) Maintaining the Confidentiality of Settlement Discussions, Mediations, and Arbitrations

Can you count on what you say during settlement discussions, mediations, and arbitrations being shielded from use at trial and from discovery? While Rule 408 of the Federal Rules of Evidence and many state law counterparts provide some protection for settlement communications, those rules are not as broad as commonly assumed. Other rules may apply specifically to mediation, but not to arbitration. This program will discuss the often-misunderstood scope of the protection afforded communications made in settlement negotiations, mediation and arbitration, and will present suggestions for franchisors and franchisees to protect (or discover) information disclosed in those settings.

  Ronald K. Gardner Michael Sturm