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Franchise 101: Finger Lickin' Restrictions; and Til Expiration Do Us Part


Franchise 101 News

Southern California Tier 3 Best Lawyers in Franchise Law




Franchise Distribution Attorneys

IFA 2018 Convention

Barry Kurtz, Tal Grinblat and Matthew J. Soroky all attended the 2018 International Franchise Association's annual convention in Phoenix earlier this month. The convention is geared to further expanding the franchise industry through educational and networking opportunities for legal and business professionals.

David Gurnick inValley Lawyer

David Gurnick reviewed "Legal Ethics and Social Media: A Practitioner's Handbook" for the San Fernando Valley Bar Association's Valley Lawyer Magazine. The tome addresses "the clash between the lawyer's quest for professionalism and the public's freedom of speech..." among other issues lawyers face when using social platforms. Read the review here: Legal Ethics and Social Media: A Practitioner’s Handbook


Finger Lickin’ Restrictions

Chicken Franchisee MarketingFranchise agreements give franchisors nearly absolute, unfettered discretion to control advertising of their brands. Franchisors need not regard prior course of dealings with franchisees. An Illinois federal court dismissed a franchisee's claim that KFC (known to many by its former name, Kentucky Fried Chicken) should not force the franchisee to stop advertising halal chicken at his franchised KFC locations simply because KFC in the past permitted, and assisted, in accommodating the franchisee's religious practice. The court found KFC's franchise agreement gave it express power to change advertising policies.

After opening his first franchise in 2002, the franchisee's local marketing campaign emphasized that his restaurant's chicken was halal-processed according to Islamic law. The strategy was so lucrative, the franchisee opened five more KFCs near mosques and Muslim communities.

For 14 years, KFC allowed the franchisee to market halal chicken. KFC allegedly helped the franchisee identify halal-certified processors and distributors. But then KFC revoked consent due to a new policy against franchisees making religious dietary claims. KFC became concerned about varying religious standards and compliance difficulties.

The plaintiff alleged that KFC's prohibition on advertising dietary claims contradicted KFC's earlier representations. But the court's decision rested on the franchise agreements. The court observed that "failure, forbearance, neglect or delay of any kind or extent on the part of KFC" in enforcing and exercising its rights would not "affect or diminish KFC's right to strictly enforce" the agreements. Given the franchisor's unambiguous contractual right to control franchisee advertising, and the agreements' integration clauses, the court would not consider evidence of KFC's previous actions. The court also dismissed the franchisee's promissory estoppel claim because Kentucky law, which governed, does not allow such claims when the parties have a contract.

The court dismissed KFC's counterclaim for attorney fees because the franchise agreement allowed KFC to recover attorney fees only for suits it initiated and won, rather than suits started by the franchisee. The court interpreted the attorney fee clause narrowly, and concluded that KFC did not start the action; rather the franchisee did in filing his original complaint.

When drafting fee shifting provisions in franchise agreements, franchisors should give serious thought to what kinds of disputes are likely to arise for which attorney fee recovery would be a benefit or hazard, before using boilerplate attorney fee clauses (whether narrow or broad). Specific wording of these provisions can impact their application in a dispute.

Lokhandwala v. KFC Corporation, 2018 WL 509959 (N.D.Ill., 2018)

Til Expiration Do Us Part

 Non-Signatory Operators Must Honor Franchise Agreements
Though an individual owner and operator of a formerly franchised Church's Chicken restaurant in Texas was not a signer of the franchise agreement, a district court ruled the individual was subject to the agreement's post-termination provisions. The ruling was based on assumption and equitable estoppel. The operator was enjoined from further use of the franchisor's trademarks or any confusingly similar marks; from breaching the agreement's non-competition provisions; and from taking actions violating the agreement's post-expiration obligations. The court found the franchisor was likely to succeed on the merits for breach of the franchise agreement and trademark infringement against the restaurant operator.

Shortly after a third-party franchisee entered into the franchise agreement, the franchisee sold the restaurant to the operator without notice to the franchisor. The operator performed under the agreement for the entire ten-year term as if he was an authorized franchisee. When the agreement expired, the operator re-branded the restaurant as a competing quick-service restaurant specializing in the sale of fried chicken using a logo, marks and other décor similar to those used at the former Church's Chicken restaurant. The franchisor demanded that the operator cease and desist and upon the operator's refusal, the franchisor filed suit.

Assumption and equitable estoppel applied to prevent the operator from having it both ways. After ten years of performing and enjoying the benefits of the agreement, he could not repudiate the post-expiration obligations in the same agreement. The court enjoined the operator's infringement and unlawful competition based on finding the operator's continued operation was causing the franchisor irreparable injury.

Non-signatory operators who operate under and benefit from a franchise agreement for a long period should understand they cannot avoid post-term obligations simply because they did not sign the agreement. The non-signatory faces risk of being subject to the same injunction order as would an ordinary franchisee who signed the contract with the franchisor.

Cajun Global LLC v. Swati Enterprises, Inc., N.D. Ga., 16,118

This communication published by Lewitt Hackman is intended as general information and may not be relied upon as legal advice, which can only be given by a lawyer based upon all the relevant facts and circumstances of a particular situation. Copyright Lewitt Hackman 2018. All Rights Reserved.


Franchise 101: Copycat Restaurant Shutdown; and Out of Time, Out of Gas

Franchise 101 News

Best Law Firms Southern California Badge



Franchise Distribution Attorneys

2018 Southern California Super Lawyers

Congratulations to Barry Kurtz, Tal Grinblat and David Gurnick, all State Bar of California Certified Specialists in Franchise & Distribution law, and all named 2018 Franchise/Dealership Super Lawyers for Southern California. To be selected, Barry, Tal and David were first nominated by attorneys at other law firms, and then underwent a 12-point selection process based on peer recognition and professional achievement: Super Lawyers 2018

Barry Kurtz inSFV Business Journal

Barry Kurtz was quoted in an article regarding the expansion of franchises in the San Fernando Valley area of Los Angeles. His insights on the post-recession appeal of buying into franchise systems is available here: Franchise Companies Find Retail Room to Grow

David Gurnick in Valley Lawyer

"Under the principal formulation of unconscionability, two elements must be present: procedural and substantive unconscionability. But they need not be present in the same degree. . . ." Read David Gurnick's full article: Unconscionability in California: Contract Power Tool for the Powerless and Powerful

Copycat Restaurant Shutdown

A registered trademark is a valuable corporate asset and can be a significant part of a company's worth. A franchisor has an affirmative legal duty to police use of its mark by licensed franchisees and also third-party infringers. For instance, a federal court in Louisville permanently enjoined a competitor from using "La Bamba" in its name, holding that use by La Bamba Authentic Mexican Cuisine (LBAMC) was likely to cause confusion with the La Bamba Mexican restaurant chain operated by franchisor and restaurant owner La Bamba Licensing (LBL).

Both parties served casual, Mexican food. The court found the marks were similar enough that consumers could mistakenly think the restaurants were related.

LBL owns the registration of La Bamba for restaurant services, and operates eight La Bamba Mexican restaurants in Kentucky and the Midwest. LBAMC opened a casual, Mexican restaurant named "La Bamba" 65 miles from Louisville. LBL sued after LBAMC refused to comply with LBL's demands to cease and desist and change the name of its restaurant.

LBL argued and the court agreed that the La Bamba mark is distinctive, despite some ordinary language usage, because the phrase "La Bamba," a famous Mexican folk song, is unrelated to LBL's restaurant services. LBL provided evidence that its mark acquired distinctiveness for Mexican cuisine, based on its continuous use of the mark for nearly 30 years, particularly in Kentucky. LBAMC argued that the mark was weak due to un-policed third-party use. But LBAMC failed to point to evidence of similar marks, let alone the number, location, or types of goods and services offered by allegedly numerous undisclosed third-party users.

The court found a likelihood of confusion and permanently enjoined LBAMC from using the La Bamba name. In balancing hardship of an injunction, the court noted that LBAMC operated only a single restaurant, only since 2015, while LBL operated several restaurants in multiple states for an extended time period.

A franchisor that tolerates infringers will find its trademark asset has "eroded" and "shrunken" because the strength of its mark as a distinctive symbol is diminished by the presence of similar marks. Vigilance in policing marks helps build a stronger, reputable brand, avoid loss of trademark rights, and minimize the risk of an infringer operating with impunity.

La Bamba Licensing, LLC v. La Bamba Authentic Mexican Cuisine, Inc.

Out of Time, Out of Gas

A California federal judge held that breach of contract claims brought by franchisees of two ARCO-branded gas stations against their franchisor BP West Coast Products were untimely, and declined to adopt the franchisees' argument that equitable estoppel tolled the statute of limitations.

The franchisees operated two gas stations since 1998, one in San Ramon, California and one in Dublin, California. In 2007 a BP sales representative allegedly approached plaintiffs offering to brand the stations as ARCO gas stations. Prior to signing contracts to convert both sites to the ARCO brand and add mini Markets, a BP representative allegedly projected to plaintiffs $40,000 per month of profits for the San Ramon station.

After heavy losses, the franchisees closed the stations and sued. The franchisees claimed that BP breached the franchise agreements by refusing to allow them fuel pricing allowances and ability to use additional vendors for the on-premises mini-markets. Since the franchisees sued more than four years after closure of the stations their action was barred unless equitable estoppel could save the claims.

The franchisees argued equitable estoppel saved their claims based on a purported oral "Walkaway Agreement" in which BP representatives represented that they would not pursue any claims based on the franchise agreements.

The judge found the franchisees could not reasonably rely on the alleged Walkaway Agreement because the franchise agreements had bold disclaimers on their signature pages saying no BP representative could orally modify or amend the agreements. The fact that plaintiffs received BP's demand for $1.2 million for gasoline, unpaid loans and other payments under the franchise agreements approximately one month after the alleged Walkaway Agreement further suggested that plaintiffs' reliance was not reasonable. The judge noted it would have been unreasonable for the franchisees, sophisticated business people, to expect BP to relinquish its claim to those payments.

Equitable estoppel may defeat a statute of limitations defense when the defendant's promises, threats or representations induce a plaintiff to delay filing a lawsuit. But it is not always successful in overcoming the statute of limitations. This case is a harsh reminder that equitable estoppel may not save a time-barred claim even if based on settlement negotiations between the parties.

Power Quality & Electrical Systems, Inc. v. BP West Coast Products LLC

This communication published by Lewitt Hackman is intended as general information and may not be relied upon as legal advice, which can only be given by a lawyer based upon all the relevant facts and circumstances of a particular situation. Copyright Lewitt Hackman 2018. All Rights Reserved.


Franchise 101: NLRB Out With the New; and Too Little Too Late

  Franchise 101 News



Franchise Distribution Attorneys

David Gurnick Selected to Best Lawyers

Congratulations to David Gurnick, designated one of the Best Lawyers in Southern California 2018 in franchise law by Best Lawyers Magazine, distributed with the Los Angeles Times. Selection for the honors are based on a survey of other attorneys practicing franchise law in Southern California. This is the sixth consecutive year David appears on the list.

FRANCHISOR 101:NLRB: Out With the New

NLRB overturns joint employer ruling

On December 14, 2017, the National Labor Relations Board (Board) in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) expressly overruled the divisive joint-employer standard adopted by Browning-Ferris Industries, 362 NLRB No. 186 (2015).

The Browning-Ferris decision departed from decades of precedent by issuing a new joint-employer test, holding that two entities could be joint employers based on a reserved right to control terms and conditions of employment. The decision provided no concrete guidelines for businesses to evaluate whether their specific relationships would result in joint-employer status. Under the Browning-Ferris standard, a franchisor that had indirect or potential control over employees of its franchisees through typical brand controls found in franchise agreements could be considered a joint employer of those employees.

Franchisors were gravely concerned about ramifications of Browning-Ferris on the franchise business model.

In overruling Browning-Ferris, the Board reinstated the prior joint-employer standard. Going forward, the Board clarified that one entity would be deemed the joint employer of another entity's employees only if it exercised actual, direct control over "essential employment terms." Potential or reserved control alone is no longer enough. Moreover, that control must be exercised in a manner that is not "limited and routine."

While this decision is welcome news for franchisors, it does not eliminate the possibility that a franchisor will be found to be a joint employer with its franchisee and thus jointly liable for actions of the franchisee's employees.

Franchisors should remain careful when drafting documents that set controls over franchisees' employees, such as payroll practices, setting work schedules or disciplinary guidelines. After Hy-Brand, the mere fact that a franchisor reserves the right to exercise control over a franchisee's employees will no longer mean joint employment exists, but if that right to control is frequently exercised, there might still be a finding of joint employment.

Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017)


FRANCHISEE 101:Offer Too Little Too Late

Late Offer to Cure

A Florida federal district court found that a doughnut franchisee's failure to pay royalties and other fees constituted a material breach of contract justifying termination, even though the franchisee expressed a willingness to pay.

The franchisee had been in the Tim Hortons' system for a decade, and had operated this particular Tim Hortons franchise for over four years. On July 7, 2016, Tim Hortons sent the franchisee a breach notice for failure to pay monies owed. The notice provided that if amounts owed were not paid in full within five days of receipt of the notice, the franchise agreement would terminate on written confirmation.

The franchisee failed to pay by July 12, 2016 and Tim Hortons terminated the franchise agreement on July 13, 2016. That same day, the franchisee offered to pay the amount demanded in the breach notice and requested that Tim Hortons provide wire instructions to send payment. Tim Hortons rejected the offer and confirmed the franchise's termination.

Following a bench trial, the court upheld Tim Hortons' decision to terminate the franchisee for failure to pay monies owed. The franchisee argued that it was willing to pay the fees owed and asked Tim Hortons for wiring instructions.

The court found that an "offer to pay" was not the same as actual payment and in any event, the offer to pay came after the cure deadline. The court stated that, under Florida law, payment has not occurred until there is an actual "tender" of funds. A suggested willingness to send funds and a request for information on where to send was not equivalent to a tender of funds. The court concluded that the franchisee's offer to pay was not a cure of its breach and Tim Hortons had the right to terminate.

This decision serves as a warning for franchisees. Franchise agreements often have terms that favor the franchisor and these terms are likely enforceable. Franchisees should evaluate the costs and benefits before entering into a franchise relationship and recognize that the risks are different from ordinary business risks associated with business ownership.

Tim Hortons USA, Inc. v. Singh, 2017 WL 4837552 (S.D. Fla. Oct. 25, 2017)

This communication published by Lewitt Hackman is intended as general information and may not be relied upon as legal advice, which can only be given by a lawyer based upon all the relevant facts and circumstances of a particular situation. Copyright Lewitt Hackman 2017. All Rights Reserved.


Franchise 101: Injunction Bottleneck; and All in the Family

Franchise 101 News



Franchise Distribution Attorneys

Matthew J. Soroky in Franchise Law Committee e-Bulletin

”...the U.S. House of Representatives approved by a vote of 282 to 181 the Save Local Business Act, a bill that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability." How could this bill affect franchisors? Read Matt's summary in the State Bar of California Business Law Section's Franchise Law Committee e-Bulletin: U.S. House of Representatives Passes Save Local Business Act

Katherine L. Wallman in Valley Lawyer

"Although the advantages of social media and the digital age are vast, the ever-changing cyber world raises ethical questions attorneys must address before reaping its benefits." For more, read Kate's MCLE article: Social Media and Common Ethical Problems


Injunction Bottleneck

A restaurant franchisor, World of Beer Franchising ("WOB"), recently lost an appeal to enforce a post-termination restriction against a franchisee launching a competing business. Both the trial and appellate court ruled against WOB.

WOB lost because it ignored the franchise agreement requirement to submit the dispute to mediation at the same time as it sought injunctive relief.

WOB and Evan Matz were parties to three franchise agreements to operate World of Beer restaurants. After mutual termination of the agreements, Matz reopened the former franchised locations as competing restaurants. WOB sought to enjoin Matz from using its marks, confidential information, and trade dress and from violating the post-termination non-compete covenant.

A federal district court denied WOB's request on the basis that the franchise agreements required the parties to first mediate their dispute. WOB appealed, arguing that the district court misinterpreted the agreements' dispute resolution provisions.

The dispute resolution clauses each said that a preliminary injunction may be sought, as long as the dispute was submitted for arbitration at the same time. But the agreements required nonbinding mediation before bringing arbitration. Another provision said that all disputes, except those concerning the marks, had to be arbitrated. Harmonizing these provisions, the district court ruled that the franchisor was required to submit its grievance with Matz to mediation and arbitration, at the same time as its motion for an injunction.

The Court of Appeals agreed that the provisions required the parties to mediate first, regardless of whether the dispute was arbitrable. The provisions could be reasonably read as requiring contemporaneous submission of the injunction request to both arbitration and mediation, followed by arbitration under the agreements' injunction clause, if mediation did not resolve the dispute.

The franchisor argued that the dispute was not subject to arbitration, and therefore was also exempt from mediation, because the claim concerned the marks. The courts disagreed, finding that the franchisor's claims extended beyond the marks. The franchisor alleged infringement, but also claimed violation of the non-compete covenant and use of confidential information and trade dress. The court was likewise unmoved by the franchisor's attempts to initiate mediation under the dispute resolution clauses.

WOB contended Matz ignored inquiries about whether he preferred mediating through the American Arbitration Association or a private mediator. The franchise agreement expressly required mediation under AAA Commercial Mediation Rules, which permitted the franchisor to submit the dispute to AAA mediation unilaterally, without Matz's cooperation.

Post-termination covenants are often the franchisor's last remnant of control over former franchisees. It is preferable for a franchise agreement's dispute resolution clause to provide a clear path to enforcing the post-termination covenants.

Read: World of Beer Franchising, Inc. v. MWB Development I, LLC


All in the Family

Some creativity can help in passing a former franchised business to the next generation, particularly if the franchisor has no part in the franchisee's succession plan.

A federal court in Nebraska preliminarily enjoined two former franchisees of The Maids International, a home-cleaning business, and also the franchisees' daughters and the competing home-cleaning company the daughters established, from continuing to violate post-termination non-compete and non-solicitation provisions of the franchise agreements.

One might think, as the defendants argued, that the daughters and their business could not be enjoined because they didn't sign the franchise agreements and were part of a separate business entity. According to the franchisees, their daughters' business - "Two Sisters" - had a new website, new uniforms, and new phone numbers. But under case law in some states, those acting in concert or privity with signatory franchisees may be bound by an injunction for actions that violate franchise agreements, even if they did not sign the agreements.

The court found several indicators that the former franchisees were in privity with their daughters' home-cleaning business.

The new business operated from the same locations as the former franchise locations. It offered the same services. It kept the franchisor's logo. It used the same email address. It used two of the same vehicles. And one of the former franchisees was listed as the registrant for the website of his daughters' business.

Most tellingly, in the court's view, was that the franchisee's "retirement letter" to customers made clear that the daughters were "ready to take over," that "most everything will remain the same," and that the daughters would continue the franchisees' business, using the same employees (their daughters), cleaning schedule, cleaning products and insurance. The court added that the defendants failed to comply with other post-termination obligations, such as the return of all confidential and marketing material and stopping use of customer lists, proprietary methods and trade secrets.

Family successors to a formerly franchised business should clearly understand what the franchisor has the power to enforce against them, and franchisees should factor the non-compete provisions of a franchise agreement into their succession plans.

Read: The Maids Int'l, Inc. v. Maids on Call, LLC

This communication published by Lewitt Hackman is intended as general information and may not be relied upon as legal advice, which can only be given by a lawyer based upon all the relevant facts and circumstances of a particular situation. Copyright Lewitt Hackman 2017. All Rights Reserved.


Franchise 101: Arbitr-"all"; and 31 Flavors of Fees (or just one)


Franchise 101 News



Franchise Distribution Attorneys

40th Annual ABA Forum on Franchising


Our Franchise & Distribution Practice Group, including three California Bar Certified Specialists (Barry Kurtz, Tal Grinblat and David Gurnick), three associates (Samuel C. Wolf, Matthew J. Soroky and Katherine L. Wallman), and four paralegals (Caitlyn Dillon, Marianne Toghia, Kelly D'Angelo and Peggy Karavanich [not depicted below]) attended the American Bar Association's Forum on Franchising in California's Palm Desert. This three day conference consists of educational programs and networking events designed to keep legal professionals up to date on the latest transaction and litigation concerns affecting both franchisor and franchisee clients.

David Gurnick in Corporate Counsel

When Uber acquired Otto, the autonomous vehicle program headed up by former Google engineer Anthony Levandowski, eyebrows were raised and a lawsuit was filed. Now, more questions come to the fore, this time regarding due diligence by Uber's chief legal officer. Read David Gurnick's quotes on this topic in:

Should Uber’s Salle Yoo Have Taken Earlier Look at Critical Due Diligence Report?

FRANCHISOR 101: Arbitr-“all”

 Conflicting Arbitration Clauses
A federal court in New Jersey granted a franchisor's motion to compel arbitration of disputes involving seven frozen yogurt franchises, even though the claims were subject to different arbitration provisions in different agreements, providing for different arbitral organizations and procedures.

An insolvent franchisee sought to liquidate assets. Each franchise agreement included arbitration and mediation clauses. The franchisee brought a claim against its franchisor for fraud, breach of contract, unjust enrichment and violation of the New Jersey franchise law. The franchisee argued the court should not compel arbitration because the various agreements' arbitration provisions had different language, were in conflict, and did not specify a uniform method of arbitration.

Two franchise agreements provided for arbitration according to rules of the American Arbitration Association. The other agreements called for arbitration with any reputable arbitration services, specifically noting CPR and JAMS.

The court found the various clauses did not require separate arbitrations. The court concluded that while the provisions differed on rules governing arbitration, the differences were minor and did not preclude compelling arbitration. The court also found that the parties could comply with all the provisions by, for example, retaining as arbitrator a neutral, former judge who was willing to proceed according to American Arbitration Association rules.

While speed, cost, and privacy may no longer be persuasive grounds to support inclusion of arbitration provisions in franchise agreements, arbitration often provides control over the location of the dispute, lowers the damages that can be recovered by franchisees, and limits the number of parties to the action. Franchisors often have a tactical advantage if the franchise agreement contains an arbitration provision, particularly in disputes against multi-unit franchisees that own units spread across different jurisdictions.

The nature and extent of these characteristics of arbitration usually advance the business and legal interests of the franchisor.

See Mitnick v. Yogurtland Franchising, Inc., 2017 WL 3503324 (D.N.J. Aug. 16, 2017).

Thirty-one Flavors of Fees (Or Just One)

Baskin-Robbins charges a dairy supplier a so-called "commercial factor" fee for the right to make and sell Baskin-Robbins proprietary ice cream to franchisees. The supplier's pricing to franchisees includes an amount equal to this fee. In Association of Independent BR Franchise Owners v. Baskin-Robbins Franchising, LLC, a franchisee association asked a federal court to rule this price component was an unauthorized fee. But the court ruled for Baskin-Robbins, holding that the charge to franchisees was permissible.

The court found that Baskin-Robbins franchisees pay a "price" for products they buy, not a "fee." Relying on dictionary definitions of "fee" and "price," and noting that Baskin-Robbins franchisees pay a single amount to the supplier for products, the court found that while the commercial factor was a fee the franchisor charged its supplier for the privilege of selling ice cream under Baskin-Robbins's name, the supplier simply charged franchisees for the products and that was not a fee.

The court also considered whether Baskin's franchise agreement prohibited the supplier from charging a pass-through cost to franchisees. The court found that the relevant provisions in the franchise agreement required franchisees to buy products from Baskin-Robbins' designated supplier, at the supplier's price. The court noted that pass-through costs and charges along the supply chain are standard industry practice. The court added that even if it found ambiguity in the franchise agreement, the parties' course of dealing showed that a supplier passing along its cost to franchisees was not prohibited. The franchisees paid for many years without objection and Baskin-Robbins disclosure document noted that the franchisor received revenue from franchisees' purchases of products from designated suppliers.

Some franchisors are creative in finding ways to collect monies from franchisees beyond straight royalties and advertising fees. Prospective franchisees should carefully review the disclosure document, talk with other franchisees and learn about practices in their system, to be informed about each source of revenue, and both direct and indirect charges, their franchisor imposes.

Read: Association of Independent BR Franchise Owners v. Baskin-Robbins Franchising, LLC

This communication published by Lewitt Hackman is intended as general information and may not be relied upon as legal advice, which can only be given by a lawyer based upon all the relevant facts and circumstances of a particular situation. Copyright Lewitt Hackman 2017. All Rights Reserved.

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