Disclosure Violations and Running the Risks of Rescission; & Pay Now or Pay Later: Liquidated Damages
Bryan H. Clements Named Rising Star
Congratulations to Bryan H. Clements, named one of Southern California’s Rising Stars for 2015 by Super Lawyers Magazine. To be recognized, Bryan underwent Super Lawyers’ rigorous selection process quantified by peer evaluations and professional achievements. Less than 2.5 percent of nominated attorneys are finally selected to the Rising Stars list.
Tal Grinblat & Franchise Law Committee
The California Bar’s Franchise Law Committee chaired by Tal Grinblat recently submitted proposed legislative changes to state law. One would make it easier for franchisors to negotiate terms of the franchise agreement with prospective franchisees. Another would permit franchisors to present at trade shows without formal registration, to gauge interest in a franchise concept before investing resources in developing a franchise program. If the Business Law Section’s Executive Committee approves, the proposals will be submitted to the Bar for introduction in California’s legislature.
David Gurnick Presents to ABA
David Gurnick, Certified Specialist in Franchise and Distribution Law, business litigation attorney and author, was invited by the American Bar Association to co-present a seminar for members attending the 38th Annual Forum on Franchising in New Orleans. The seminar topic, entitled Finders Keepers Losers Weepers: Opportunities, Risks and Considerations in Using Intellectual Property Created by Others, takes place in October.
Disclosure Violations & Running the Risks of Rescission
Despite a district court’s recent decision in Braatz, LLC v. Red Mango FC, LLC, franchisors are well advised to comply with applicable disclosure requirements to a “T” to ensure new franchisees will not have an ongoing right to rescind their franchise agreements.
Braatz was disclosed with Red Mango’s franchise disclosure document (FDD) on November 4, 2011. On December 28, 2011, Braatz received an execution version of the franchise agreement and a franchise compliance questionnaire from Red Mango. On January 5, 2012, Braatz paid Red Mango an initial franchise fee and entered into a franchise agreement with Red Mango for a Red Mango yogurt store.
After cashing Braatz’s check for the initial fee and countersigning the franchise agreement, Red Mango re-sent a blank closing questionnaire to Braatz asking Braatz to change two answers it had previously provided and resubmit the questionnaire. Braatz completed and signed the replacement questionnaire and returned it to Red Mango before January 16, 2012. Braatz closed the store on March 2, 2014, filed for bankruptcy soon thereafter, and filed a claim against Red Mango for violation of the Wisconsin Fair Dealership Law (WFDL) on December 23, 2014. Braatz sought to rescind the franchise agreement since Red Mango had not provided Braatz 14 days to review the replacement questionnaire before accepting Braatz’s initial franchisee fee payment.
The WFDL provides “No franchise […] may be sold in [Wisconsin] unless a copy of an offering circular is provided to the prospective franchisee at least 14 days prior to [its] execution of any binding franchise agreement or other agreement with the franchisor or at least 14 days prior to the payment of any consideration….” If the franchisor materially violates this provision, the franchisor shall be liable to the franchisee and the franchisee may bring an action for rescission.
The court ruled that even if Red Mango was required to provide Braatz an additional 14 days to review, complete and resubmit the questionnaire, the alleged violation was not material. Since Braatz promptly completed and resubmitted the questionnaire, the court opined, the violation did not affect Braatz’s decision to enter the franchise. Also, the representations Red Mango had asked Braatz to change in the questionnaire conflicted with representations Braatz had made in the franchise agreement. In the court’s opinion, asking Braatz to align its representations did not present any new requirements for franchise ownership, and thus, was not enough to amount to a material violation of the WFDL’s disclosure requirements. Accordingly, the court granted Red Mango’s motion to dismiss Braatz’s claim.
Had this case been heard by a different court, or had the court been asked to apply the franchise disclosure laws of a different state, the result could have been different. So, keeping in mind that an ounce of prevention is worth a pound of cure, franchisors are best advised to provide franchisees no less than 14 full days to review all documents before accepting any signed documents or monies for a new franchise.
Pay Now or Pay Later – Liquidated Damages & Future Royalties
Super 8 Worldwide, Inc. v. Anu, Inc. serves as a reminder to franchisees that, in general, courts will hold franchisees and their guarantors liable to their franchisors for losses suffered when franchisees abandon their franchises before their franchise agreements have expired.
Super 8 sued its former franchisee and the franchisee’s guarantors for breach of contract alleging the franchisee unilaterally terminated the franchise when it stopped operating the facility without Super 8’s prior consent. Applying New Jersey law, the court granted Super 8’s motion for summary judgement against the franchisee’s guarantors and awarded Super 8 liquidated damages, lost royalties and attorney’s fees (the court had earlier granted Super 8’s Motion for Default Judgment against the franchisee and awarded Super 8 $317,591.65 in liquidated damages and recurring fees).
The result in this case would likely have been the same had it been tried in California. California generally follows the rule that a non-breaching franchisor “… is entitled to recover damages, including lost future profits, which are proximately caused by the franchisee’s specific breach.” Postal Instant Press, Inc. v. Sealy, 43 Cal.App.4th 1704. Therefore, if a California franchisee’s actions, such as abandonment of the franchise, are the cause of the franchisor’s failure to realize future profits, the franchisor may recover its lost profits from the franchisee. Interestingly, though, a district court interpreting California law in Radisson Hotels Intern., v. Majestic Towers, Inc. went a step further. It ruled, based on a specific provision in the franchise agreement, that Radisson’s franchisee was liable to Radisson for lost future profits, even though Radisson had terminated the franchisee for its failure to pay past due royalties.
Most states, though, including Washington and New York, follow the general rule that “a [franchisor] is entitled to recover lost profits [future royalties] if the [franchisor] demonstrates that (1) the [franchisee’s] breach caused [the franchisor’s loss of future royalties]; (2) the loss may be proved with reasonable certainty; and (3) the particular [lost future royalties] were within the contemplation of the parties to the contact at the time it was made.” ATC Healthcare Services, Inc. v Personnel Solutions, Inc., 2006 WL 3758618; see also Ashland Mgt, Inc. v. Janien, 82 N.Y.2d 395 (1993); and see Tiegs v. Watts 135 Wash.2d 1. Following this rule, a franchisor would not be able to collect lost future royalties if it terminates its franchisee for failing to pay past due royalties, but could for acts by the franchisee, such as abandonment, which proximately cause the franchisor’s damages.
Many franchise agreements provide a provision calculating the damages the franchisor will be entitled to receive if the franchisee abandons or otherwise terminates the franchise before its expiration date (i.e. 2 years’ royalties based on the past 12 months). As the Super 8 case demonstrates, these provisions are typically enforceable, even against the franchisee’s guarantors