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Complex of Federal and State Laws Regulates Franchise Operations As Their Popularity Grows - Part III

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If a franchisor wishes to advertise, many states require that the advertisement first be filed with the state.[1] Many states[2] also require that reports be filed on sales. The federal rule[3] requires that a UFOC be given at least five business days before the date that agreements are to be executed, but many states require that the UFOC be given to the franchisee earlier.[4]

Advantages and Disadvantages of Franchising

Franchising allows a business to expand its operations and grow geographically. Unlike a chain system, the franchisor does not have to provide capital, management or employees for each location. This allows a franchisor to increase its profits more rapidly than by expanding on its own.

The franchisees, as individuals who own their own business, have every possible incentive to work hard to make their businesses a success. Because they are owners, their motivation is likely to be greater than that of a manager, even one who receives a percentage of the profits of the business.

With each new location, the franchisor immediately earns a profit in the form of the initial franchise fee, typically $5,000 to $25,000. The franchisor also receives a continuing royalty, usually 8% to 10% of the gross income of the franchisee.

One disadvantage is that after franchisees have learned how to operate a business they resent continued royalty payments. In some cases, they look for a way to terminate the franchise contract. In other cases, they may try to violate the terms of the franchise arrangements because they believe the franchisor is receiving more benefits than it deserves.

Another disadvantage is that the franchisor may be named in litigation involving the franchisee. Typically, this occurs when the franchisee is sued for injuries to its personnel or customers[5] or for various types of alleged discrimination. In these circumstances, if the franchisor has not detailed how the franchisee should act in the particular area affected, the franchisor has usually been successful in defending the lawsuit.

After considering the advantages and disadvantages of franchising, it would appear that the benefits of franchising far outweigh the disadvantages. Based on these and other factors, it appears that almost any business would benefit from

References
  1. ^ e.g. New York (a minimum of seven days prior to use)- 13 N.Y.C.R.R. 200.09.
  2. ^ e.g. New York (annually)- 13 N.Y.C.R.R. 200.08; Maryland (quarterly)- Code of Md. Regulations, additional Title 02, Subtitle 02, Chap. 8, .02.02.08.14.
  3. ^ 16 C.F.R. 436.1(g).
  4. ^ e.g. New York (the earlier of (a) the first personal meeting with the franchisee to discuss the franchise or (b) ten business days before the franchisee signs any binding agreements or pays any money)- 13 N.Y.C.R.R. Loc. 4 (iii).
  5. ^ See Walters v. Ramada Franchise Systems, Inc., 2000 Tex. App. LEXIS 5673 (Court of Appeals of Texas, Fifth District, Dallas August 24, 2000) in which a franchisor was denied summary judgment because it retained some control over the franchisee's operations.

 


ABOUT THE AUTHOR: MITCHELL J. KASSOFF
Mitchell J. Kassoff Mitchell J. Kassoff, Esq. is a tenured professor of law and taxation at Pace University in New York City, a lecturer for Continuing Legal Education (for attorneys) on the topic "How to Franchise a Business" and for business owners on the topic "How to Franchise Your Business." He is admitted to the Bars of New York and New Jersey, a past chairman of the American Bar Association Committee on the Use of Computer Produced Data and a consultant to the National Conference of State Tax Judges. He received a bachelor's degree in public accounting magma cum laude from the State University of New York at Albany and a J.D. from the University of Virginia School of Law.

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