Category Archives: Franchise disclosure document (FDD)

When are Parent Company Financial Disclosures Required?

A franchisor selling franchises in the U.S. must disclose its audited financial statements in Item 21 of the franchise disclosure document (FDD).  Sometimes, parent company financials are used instead of the franchisor’s financials.  This is easily done when the parent company is a public company that already has audited financials.  But most franchisors are not public companies.  They are not likely to have parent company audited financials and would prefer not to incur the added expense of auditing a group of companies rather than just the franchisor entity.  Audits are expensive.  The franchisor may also want to shield its parent …

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Testing a New Franchise Concept

One of the toughest challenges an aspiring franchisor may face is selling its first franchise.  Who would take the risk of buying a franchise from a franchise company that has no franchisees? For a few successful business owners, the idea of franchising may come from one or more customers who love the business concept and initiate the idea of buying a franchise even before the owner has taken the first step to prepare a franchise offering.  But this rarely happens. Here’s another suggestion:  If the aspiring franchisor has a successful business unit (a store or a restaurant, for example) that …

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Correcting an Accidental Franchisor Violation

What’s a franchise?  Franchise registration and disclosure laws define a “franchise” more broadly than people generally realize.  A company may be franchising without knowing it.  The “license” agreement may have been drafted, for example, by an attorney who has limited knowledge about franchise law.  Hence the popular topic (at least among franchise lawyers) of the “inadvertent” or “accidental” franchisor. A business owner who has run a successful “test” of licensing its business may decide that the next step is to set up a franchise system, not realizing that the test was already a franchise sold in violation of one or …

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Suspending Franchise Sales

In several states that require franchise registration, franchisors should suspend franchise sales while an amendment or renewal application is pending with the state.  Franchisors commonly suspend franchise sales pending registration in most states that require franchise registration.  But California and New York each offers a unique and very different approach than a blackout or suspension of sales. California takes an approach that is eminently practical.  In California, a franchisor may deliver to a prospect the franchise disclosure document (“FDD”) as filed with state for renewal or amendment together with a written statement that the filing has been made but it has not …

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An Intellectual Property Primer for Franchisors

Intellectual property is a core asset of any franchisor. In fact, intellectual property is important to virtually all businesses. For some companies, it’s their most valuable asset. A basic knowledge of intellectual property law enables an owner or manager to facilitate the development, protection and commercialization of the company’s intellectual property and to engage in productive discussions with the company’s legal counsel. Intellectual property falls into four categories – trademarks, copyrights, patents and trade secrets. A trademark is a brand. It’s the words or designs that identify your company when it sells anything. Copyright law protects creative works. In the …

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What’s an FPR?

Every franchise buyer wants to know how much money he or she can make from the franchised business.  Franchise sellers naturally want to answer that question in order to make the sale.  But many say that they cannot give figures to prospective franchisees, and they suggest that the prospects talk to other franchisees whose contact information is typically listed in an exhibit to the franchise disclosure document (FDD). The fact is that franchise sellers may indeed provide information regarding earnings, but only if the franchisor discloses “financial performance representations” (or FPRs) in Item 19 of the FDD.  If no FPRs appear …

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What’s an Exclusive Territory?

The extent of a franchisee’s territorial rights is the subject of Item 12 of the franchise disclosure document (FDD). One of the questions franchisors must address in Item 12 is whether the territory is exclusive. If the territory is not exclusive, the Federal Trade Commission’s trade regulation rule on franchising (the FTC Rule) requires that Item 12 contain this statement: You will not receive an exclusive territory. You may face competition from other franchisees, from outlets that we own, or from other channels of distribution or competitive brands that we control. So what does “exclusive territory” mean?

Why Subfranchising is Rare in the U.S.

Subfranchising is one of three multi-unit franchise structures that the North American Securities Administrators Association, Inc. (NASAA) addressed in their Multi-Unit Commentary, which was the subject of an earlier post.  The other two types of multi-unit franchise offerings discussed in that post are area development and area representative. Of the three multi-unit approaches, the subfranchise is by far the least commonly used in the U.S.  And with good reason. In subfranchising, the franchisor appoints a master franchisee who has the right and obligation to sell subfranchises within a defined territory.  The agreement between the franchisor and the master franchisee is called …

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How to Disclose Multi-Unit Franchise Offerings

Multi-unit franchising is a good way to grow a franchise system quickly.  We now have guidance on how franchisors should present multi-unit franchise offerings. The North American Securities Administrators Association, Inc. (NASAA) adopted a Multi-Unit Commentary September 16, 2014.  Its message was this:  Starting in early 2015, registration states will not accept a combined franchise disclosure document (FDD) that includes both the single unit offering and the area representative offering.  The area representative offering must be disclosed in a separate document from the unit offering, and the two must be registered separately.  States that require franchise registration will no longer accept …

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How to Get Free Franchise Disclosure Documents

Of all the states that require franchise registration, only three make franchise registrations available online today:  Wisconsin, Minnesota, and California.  Having three states to choose from is a pleasure.  For many years, California was the only state that made franchise disclosure documents (FDDs) available to the public.  The only alternative was to pay an independent FDD service provider. I have tried all three websites.  Here is what I found: I like to start any search on the Wisconsin website.  The Franchise Search screen asks simply for the name of the franchise.  It can be the legal name of the franchisor …

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