Identify the perfect franchise for you! Take our short quiz Take our free franchise quiz!
Identify the perfect franchise for you! Take our short quiz Take our free franchise quiz!
Identify the perfect franchise for you! Take our short quiz Take our free franchise quiz!

Franchise Disclosure Document for Dummies – Part 7

Franchise Disclosure Document for Idiots - Items 17 18 19 - Franchise
Help

In part seven of this series on understanding the FDD, we continue with Items 17, 18 and 19. Item 17 provides an overview of key provisions of the franchise agreement, Item 18 addresses use of public figures to promote the franchise, and Item 19 covers Financial Performance Representations (one of the most interesting, but ultimately poorly understood, Items that potential investors seek when exploring franchise opportunities).

Item 17 – Key Provisions of the Franchise Agreement

In Item 17 of the FDD, franchisors are required to provide summaries and cross-references for 23 key provisions in the franchise agreement. A careful franchise prospect will have the entire franchise agreement reviewed in-depth by an experienced franchise attorney, but the Item 17 disclosures can provide a quick guide to use in a preliminary analysis of the franchise opportunity.

Some of the Key Franchise Agreement Provisions Summarized in Item 17 Include:

  • Renewal and transfer rights
  • Franchisor and franchisee rights of termination
  • Non-competition obligations (in-term and post-term)
  • Dispute resolution provisions

Item 18 – Public Figures

Item 18 requires disclosure of any public figure “whose name or physical appearance is generally known to the public in the geographic area where the franchise will be located.” Importantly for franchisors, Item 18 applies only if the public figure engaged for the purpose of selling franchises—using public figures to promote franchisees’ products and services—does not trigger an Item 18 disclosure.

However, if the public figure promotes franchisees’ products and services and also invests in the franchisor, then the public figure’s investment must be disclosed in Item 18.

Item 19 – Financial Performance Representations

Entire scholarly articles can (and have been) written on the subject of Financial Performance Representations (“FPRs”). Franchisors who provide FPRs in their FDDs do so with careful guidance from their legal and financial advisors, and state franchise examiners often heavily scrutinize these disclosures. While certain disclaimers and limitations can (and should) be included, there are limits on the lengths to which franchisors can go to effectively nullify the legal consequences of providing an FPR in the FDD.

There are two main types of Financial Performance Representations:

  • Historical financial data based on the performance of franchised or company-owned outlets
  • Projections of potential future performance

If a franchisor provides historical data, it may provide information for all outlets or a certain defined subset. However, it may not simply disclose the financial results of its top-performing franchisees.

Limited historical disclosures must be based on categorizations such as:

  • Geographic location
  • Years in operation
  • Nature of location (e.g., free-standing versus shopping center)

If a franchisor provides an FPR, it must carefully train its sales staff to limit their discussions with franchisees to stay within the scope of the FPR. Federal and state franchise laws prohibit franchisors from making any financial performance representations other than those included in the FDD.

Franchisors also have the option not to provide any FPR in the Franchise Disclosure Document, and this option has been gaining popularity in recent years. If a franchisor provides this “negative” disclosure in the FDD, it may not provide any financial information to prospective franchisees.

Next week’s installment will be the final chapter in this series, and will cover the system size and growth data in Item 20, franchisor financial statements in Item 21, and the Receipt pages that comprise Item 23.

Jeff Fabian is the owner of Fabian, LLC, a boutique intellectual property and business law firm serving new and established franchisors and prospective franchisees. Contact the firm directly at 410.908.0883 or jeff@fabianlegal.com. You can also follow Jeff on Twitter @jsfabian.

_ _

This article is provided for informational purposes only, and does not constitute legal advice. Always consult an attorney before taking any action that may affect your legal rights or liabilities.

Franchise Disclosure Document for Dummies – Part 3

In Item 8 of the FDD, franchisors are required to disclose designated and approved suppliers, franchisees’ mandatory purchases, and any rebates they receive from vendors as a result of franchisee purchases.

Everything You Need To Know About Master Franchising

A master franchise is one that is managed by a master franchisee - an investor who pays the business owner, or franchisor, an initial fee to secure the rights to scale the business under its brand name in a specified region. From that point onwards, the master franchisee acts as the franchisor of the brand within that territory, taking on responsibilities such as recruiting, training and supporting other franchisees in various aspects such as marketing, operations and more. The initial franchise fee that these franchisees pay them can be retained by the master franchisee, who can be regarded as a mini-franchisor, managing and expanding the businesses within the territory he takes on.

Franchise Disclosure Document for Dummies – Part 5

As a preliminary matter, it is important to understand the distinctions between trademarks, copyrights, patents and proprietary information.