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Entries in non-compete clauses (2)

Tuesday
Aug302016

Franchise 101: Non-Compete Agreements & Projected Earnings

Franchise 101 News

bkurtz@lewitthackman.com
dgurnick@lewitthackman.com
tgrinblat@lewitthackman.com
swolf@lewitthackman.com
gwintner@lewitthackman.com

 

August 2016

 

Franchise Lawyers

FRANCHISOR 101:
Non-Competes for Franchisees’ Employees

A "non-compete" provision limits the franchisee's ability, after the franchise agreement ends, to continue to work in a similar type of business to the franchise within a certain time period and geographic area. The purpose is to protect the franchise system for a time against a competitor who "knows the system from the inside." Non-compete provisions are often disfavored by courts. What about non-compete agreements for the employees of franchisees?

Until recently, Jimmy John's, a franchisor of sandwich shops, provided its franchisees with sample non-compete agreements for franchisees to use with their own employees, including order takers, sandwich makers, and delivery drivers. The agreements stated that, for two years after leaving employment, a former employee could not work at any business within a 2-mile radius of a Jimmy John's location if that business made more than 10 percent of its revenue from sandwiches.

However, last June Illinois Attorney General Lisa Madigan filed suit against Jimmy John's to stop this imposition of "unlawful" and "highly restrictive" non-compete agreements on its low-wage workers. Illinois requires that non-compete agreements be "premised on a legitimate business interest and narrowly tailored in terms of time, activity, and place." The complaint alleges the agreements lock these employees into their jobs and prevent them from seeking higher-paying jobs elsewhere, while giving their employers no reason to increase their wages or benefits.

Shortly thereafter, New York Attorney General Eric T. Schneiderman announced that his office reached a settlement with Jimmy John's regarding the agreements, stating that "Non-compete agreements for low-wage workers are unconscionable." Under the settlement, the franchisor will stop providing the sample agreements to its New York franchisees and will also inform those franchisees that the Attorney General considers such agreements unlawful and void.

In light of these developments and other negative publicity that non-compete agreements for workers have received, franchisors that provide such agreements for their franchisees' use may want to consider whether or not they are enforceable, and whether such agreements constitute good business practice.

FRANCHISEE 101:
How Far Do Earnings Projections Go?

A franchisor is allowed to make "financial performance representations" in its disclosure documents. These figures may project how much money a franchisee is likely to make and can play a critical part in the franchisor's sales process. But if the numbers are way off, what kind of legal recovery can the franchisee get?

In Legacy Academy, Inc. v. Doles-Smith Enterprises, Inc., a Legacy Academy ("Legacy") franchisee suffered losses during the first 3 years of operating its daycare franchise. The franchisee sued, claiming that Legacy had misrepresented the projected cash flow of its franchises in the Franchise Offering Circular they provided to the franchisee. At trial, the franchise owners showed that they paid $40,000 for the franchise and took out $200,000 in loans to cover start-up expenses before the daycare was operational. They also testified that they lost their life savings in order to keep the daycare operational while it lost money. The jury agreed and awarded the franchisee $390,000 in damages.

However, an appeals court found the franchise owners failed to present evidence of damages necessary to receive an award. The court explained that the owners certainly could not recover the difference between what their business made and what the Offering Circular projected because the figures given were only a projection - not a guarantee.

The owners may have been able to recover their costs to buy and start the business - the $40,000 franchise fee and $200,000 in loans - had they asked to "rescind" the franchise agreement: to be put back into the financial place they were before they signed the agreement. But instead, the owners asked for all of the damages they suffered as "consequences" that flowed as a result of the franchisor's misrepresentation. The court concluded that only the owners' ongoing losses due to operating the franchise qualified as such consequential damages. But testimony the franchise owners gave about those particular damages - the "loss of their life savings" - was so vague that a jury had to speculate what the fair recovery should be. Therefore, the appeals court reversed the jury verdict and found in favor of Legacy.

In light of these developments and other negative publicity that non-compete agreements for workers have received, franchisors that provide such agreements for their franchisees' use may want to consider whether or not they are enforceable, and whether such agreements constitute good business practice.

 

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 2016. All Rights Reserved.

Tuesday
Mar292016

Protecting Interests in Preliminary Injunctions; & The Purposes and Limits of Non-Compete Clauses

Franchise 101 News

bkurtz@lewitthackman.com
dgurnick@lewitthackman.com
tgrinblat@lewitthackman.com
swolf@lewitthackman.com
gwintner@lewitthackman.com

 

March 2016

 

Franchise Lawyers

Tal Grinblat in Valley Lawyer

The ever-pervasive Happy Birthday to You - sung by waiters in corporate restaurants around the world to embarrassed celebrants and diners - may now reside in the public domain..."

Click to read: Music Publisher Caught in Birthday Suit, Agrees to Settle by Tal Grinblat and Nicholas Kanter

 

FRANCHISOR 101:
Protecting Interests in Preliminary Injunctions

 

A franchisor in a termination dispute with a franchisee may request a preliminary injunction to force the franchisee to immediately stop operating the franchised business and using the franchisor's trademarks and intellectual property. A court will grant a preliminary injunction when the party asking for it can show that it is likely to succeed on the claim and that, without an injunction, the party will suffer irreparable harm. Recently some franchisors have had difficulty obtaining preliminary injunctions. Courts have clarified when they will and will not grant injunctions in a franchise context.

In 7-Eleven, Inc. v. Sodhi, 7-Eleven issued termination notices to a franchisee because the net worth of five of his locations fell below amounts required by the franchise agreements. The franchisee disputed that he breached the franchise agreements, so he continued to operate despite receiving the notices. 7-Eleven sued the franchisee for trademark infringement and asked the court for a preliminary injunction.

The court found that several factors calling for an injunction were satisfied, including a likelihood that 7-Eleven would succeed in its claim. However, it also found that 7-Eleven did not prove exactly what irreparable harm it would suffer to its reputation or property from temporary continuation of the stores' operation. 7-Eleven submitted evidence of customer complaints on lack of cleanliness. But the court found those insufficient to show harm to reputation, in part because 7-Eleven received them before the franchisee's breach. The complaints did not prove the franchisee's continued operation was causing new harm to 7-Eleven's reputation that hadn't already occurred. The court declined the injunction.

In Intelligent Office System, LLC v. Virtualink Canada, Ltd., Intelligent Office System (IOS) entered into a Master License Agreement (MLA) with Virtualink Canada, Ltd. (Virtualink). The agreement granted Virtualink the exclusive right to license IOS's trademarks and business concept (for "virtual offices") to subfranchisees in Canada. In March 2013, IOS sent Virtualink a notice of defaults that Virtualink committed, including not meeting sales and opening goals and not providing reports and tax returns. IOS claimed Virtualink continued committing defaults, until IOS sent Virtualink a termination notice in October 2015. IOS filed suit in December 2015 and shortly after sought a preliminary injunction to shut Virtualink down.

The Colorado court noted that the purpose of a preliminary injunction is to maintain the positions of the parties until a trial could be held. So any preliminary injunction that would change the parties' positions would be disfavored and scrutinized carefully. The court reasoned that forcing Virtualink to stop the business it had run would change the parties' positions that existed in which Virtualink had been the "Master Licensee" for Canada. In declining to grant an injunction the court explained that IOS failed to show that it would be irreparably harmed without an injunction, since for years Virtualink had committed the defaults IOS claimed it wanted to stop, yet IOS allowed them to continue.

Both IOS and 7-Eleven show that a franchisor must act quickly and show urgency in response to franchisee defaults or courts may be unsympathetic when an injunction is requested. This can result in a franchisee receiving a notice of termination and yet continuing to operate the franchised business, possibly for years to come.

Click to read: 7-Eleven, Inc. v. Karamjeet Sodhi or Intelligent Office System, LLC v. Virtualink Canada, Ltd. 

FRANCHISEE 101:
Purposes and Limits of Non-Compete Clauses

Many franchise agreements have "non-compete clauses", which state that after termination or expiration of the franchise agreement, the ex-franchisee may not operate a business that is similar to or that would compete with the franchised business. These clauses apply for a stated time and cover a stated geography. In some jurisdictions, such as California, non-compete clauses are not enforceable. In other jurisdictions where these clauses can possibly be enforced, courts also decline to enforce them in some circumstances.

In AAMCO Transmissions, Inc. v. Romano, Robert and Linda Romano sold their AAMCO franchise in Florida and terminated their AAMCO franchise agreement. Then they opened a new transmission repair shop over 90 miles away from their old location. The Romanos' franchise agreement had a non-compete clause barring them, for two years, from opening a competing business within 10 miles of any AAMCO location. The Romanos' new location was only 1.4 miles from an AAMCO business. Despite this, a court refused to enforce the non-compete provision. The court ruled that the provision was too broad in its geographic scope, and limited enforcement to 10 miles from the franchisees' former location, and 10 miles from any other AAMCO location within the county in Florida where the franchise had been located.

In MEDIchair LP v. DME Medequip Inc., MEDIchair franchise businesses sold and leased medical equipment to be used at home. The MEDIchair franchisor also owned and operated similar businesses, but under the name "Motion Specialties." A MEDIchair franchisee in Ontario, Canada discovered it was competing with a nearby Motion Specialties store serving the same area. When the franchisee's franchise agreement ended, it de-identified its store as a MEDIchair franchise, and operated a similar business in the same location, with the same employees selling the same or similar products. MEDIchair then sued the franchisee to enforce the non-compete clause in the franchise agreement. That clause prohibited the franchisee from operating a competing business within 30 miles of the franchised location or any other MEDIchair franchise for 18 months after expiration of the agreement.

The Ontario court noted that, to be enforceable, a non-compete clause must serve a legitimate business interest of the franchisor - namely, to protect the franchise system. In this case, the evidence suggested the franchisor did not seek a replacement franchisee for the vacated location, since the territory was already served by its own Motion Specialties location. MEDIchair's actions showed that it had no interest in protecting the interests of its franchise system in Ontario. Therefore, the court refused to enforce the non-compete clause against the former franchisee in that territory.

AAMCO and MEDIchair show that even in jurisdictions where non-competes can be enforced, courts may narrowly construe the franchisor's legitimate business interests that may be protected by a non-compete clause. A court may find, as in AAMCO, that the non-compete only protects the franchisor's interests in the particular franchised location sold. Or, as in MEDIchair, a court may conclude that the franchisor has no business interest to protect - or, that the interest it seeks to protect is not "legitimate."

Read: AAMCO v. Robert V. Romano and Linda Romano, and MEDIchair LLP v. DME Medequip Inc.

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 2016. All Rights Reserved.

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