THE 50TH ANNUAL IFA LEGAL SYMPOSIUM

IFA’s 50th Annual Legal Symposium was designed by a task force of member volunteers with a particular emphasis on how legal and regulatory issues affect the everyday business operations of the franchise system. The program will provide value and real-world solutions to both business executives and their franchise legal partners. We will focus on the practical use of the law and the how-to’s for navigating today’s business and regulatory environment. This year’s Legal Symposium will be a training ground for what business executives and legal counsel need to know and how to put it into practice. Attendees can also earn CLE (Continuing Legal Education) and CFE (Certified Franchise Executives) credits by attending. Featuring expert speakers and timely content, our Symposium is a "must attend" event. 

What You’ll Experience:

  • Compelling programming that will allow you to engage, discuss and learn with your peers
  • Valuable real-world solutions from expert speakers
  • Multiple networking events including receptions, luncheons and breaks

SPONSORS

FEATURED SPEAKERS

Check back soon for our world class General Session speakers!

SCHEDULE

3:00 pm – 7:00 pmRegistration Desk Open

3:30 pm – 5:00 pmLegal Legislative Committee Meeting

5:30 pm – 7:00 pmWelcome Reception

7:30 pm – 9:30 pmSpeakers' Networking Event

Joe's Seafood, Prime Steak and Stone Crab - 750 15th St. NW
(for Legal Symposium moderators and speakers only)

8:00 am – 6:00 pmRegistration Desk Open

8:00 am – 8:30 amContinental Breakfast

8:30 am – 10:15 pm

Welcome and General Session

Check back soon for more information!

10:15 am – 10:30 amRefreshment Break

10:30 am – 11:45 am

Concurrent Sessions

Update on Joint Employer

This session will take a holistic approach to joint employer, discussing not just the NLRB’s actions from the standpoint of the franchisor, but also will discuss the joint employer activities of the Department of Labor, OHSA, federal courts, State Attorneys General, state legislatures and the likely impact of the election on the franchise industry from a business prospective.

Practical Applications in Joint Employer Liability

This session will focus on best practices of how to cope with the uncertain business environment resulting from the joint employer decision. How do you craft your franchise agreements? How do you deal with the new overtime rule? What can you do to ensure minimum wage and hour compliance? How do you get information to franchisees without incurring joint employer liability?

Practical Alternates to Termination

Communicating with struggling franchisees; franchisor resale programs; mutual terminations; mediation. Issues that franchisees face and how the franchisor can help.

A Deep Dive into Due Diligence from a Private Equity Seller or Buyer’s Perspective

Private equity ownership of franchisors and multi-concept franchisees across a broad range of industries is the new normal in the world of selling and buying of franchise systems. Private equity sellers and buyers come to a deal focused on typical considerations impacting valuation including the sustainability of revenue streams, flexibility to make system changes, unit economics and the scaling of the franchise business model for future growth. The increased volume of private equity sales, competitive jogging for positioning by buyers for the most attractive systems and in some cases, reduced opportunities for negotiation and risk assessment by buyers has prompted many private equity groups to focus their franchise due diligence efforts on data that will most quickly expose material gaps in their valuation analysis such as purchasing arrangements, rebates and commissions, marketing and advertising fund management, unit performance and reporting, standards compliance and joint employer risk, financial performance representations, international development and unit openings, transfers and closings. Panelists with diverse experiences in private equity and related deals will address a variety of the approaches used by private equity sellers and buyers to frame issues relevant to their due diligence efforts, assess and manage risks, negotiate reps and warranties, select and use rep and warranty insurance coverage and other practices likely to enhance the seller’s or buyer’s use of information about the target franchise system.

RedditAndWeep? Protecting Your Brand and Reputation in Social Media – A Continuum of Approaches From Engagement to Litigation

The ubiquity of social media presents infinite opportunities for people to pass comment on franchisors’ brands and franchisees’ locations. Whether the commenters are consumers, employees, paid influencers, or competitors, franchised brands are targets for praise and criticism in equal measure. What steps can a franchisor and/or a franchisee take when pointed criticism spills over to brand diminution? The best solutions when dealing with in social media are often negotiated behind the scenes. There may come a time, however, where litigation must be brought.

This session will address:

  • Practical pre-litigation approaches that have proven successful in the past.
  • How to assess when a litigated response is necessary, taking into account what can be considered a successful outcome and the potential cost of further bad publicity.
  • Engaging social media outlets themselves (Facebook, LinkedIn, Twitter, etc.).
  • What obligations do franchisor and franchisee each have to engage, or not, in social media to protect or grow the brand.

This session will provide a review of recent case law in these areas along with first-hand experiences from the panel and the audience.

International Development – Personal Guarantees and Other Mechanisms to Secure Franchisee Payment and Performance

This session is designed to address the unique issues associated with securing franchisee payment and performance in the international context. The session will examine topics including:

  • Purpose and goals of guarantees – payment of monies, performance, non-competition, and confidentiality.
  • Negotiating and drafting personal guarantees.
  • Enforcement issues with personal guarantees, including formalities in execution, choice of law, and dispute resolution procedures.
  • Alternatives to personal guarantees – letters of credit/bank guarantees/deposits, pledge certificate of deposit, capitalization commitment, security deposit, cash escrow, corporate guarantees, US affiliate, caps, trade credit insurance, etc.
  • Important role of local counsel.

Basics Track: Registration and Disclosure

  • The regulation of the offering and selling of franchises by federal and state laws.
  • State franchise registration and disclosure requirements.
  • Exemptions from registration and/or disclosure.
  • Additional filing requirements beyond the franchise disclosure document.
  • State examiner review process and comment letters.
  • The timing and process of amending and/or renewing the franchise disclosure document.

12:00 noon – 1:30 pm

Networking Luncheon with IFA Government Relations Update

Check back soon for more information!

1:45 pm – 3:00 pm

Concurrent Sessions

I'll Have What She's Having: An Exploration of Legal and Ethical Issues When Representing Clients that Compete

Attorneys are relied upon by clients because of their unique or specialized knowledge about a particular practice area of the law. As a result, it is not uncommon for attorneys to have clients whose businesses may be directly competitive with one another. This workshop will explore some of the legal and ethical issues and concerns that may arise when an attorney or law firm represents competitors.

This workshop will examine topics that include:

  • Practical discussion of benefits and concerns.
  • Model Rules of Professional Conduct that impact representing competitors, including actual and potential conflicts of interest under Rule 1.7 and state law equivalents; disclosure of confidential communications, attorney‐client privilege issues and duties to current and former clients.
  • Fee agreements and the necessity of client waivers.
  • Representing franchisees from multiple systems; including systems that are competitive.
  • Positional conflicts and client mandates.

The Slippery Sands of Post-Termination Enforcement - Opportunities for Franchisees; Pitfalls for Franchisors

Two threads of legal developments in recent years have made post-termination enforcement less certain for franchisors than it used to be. Since the Supreme Court’s decision in the eBay case some years ago, some courts have held that there is no presumption of irreparable injury from unauthorized use of a trademark. As a result, some franchisors have stumbled on the lack of a presumption and have been denied preliminary injunctions against use of their trademarks by terminated franchisees. Similarly, some courts have tightened requirements for enforcement of post-termination non-competes and have denied franchisors the right to stop terminated franchisees from continuing to operate as independents after termination. Are these decisions a new bill of rights for franchisees or a writ of execution for franchisors? What can the lawyers for either side do?

Litigation Against Competitors

Whether it comes in the context of trade secret misappropriation, noncompete enforcement when officers, employees or franchisees “switch sides,” interference with contracts and trademarks infringement, unfair competition or even antitrust, the franchise industry is not immune to legal disputes between competitors. This session will explore ways to avoid such disputes or – if they cannot be avoided – to position the company for the best possible outcome.

  • Identifying areas in which competitors can come into conflict.
  • When a franchisee breaks away and joins or sells to a competing chain.
  • Legal claims that can be brought against competitors.
  • Budgetary impact of significant litigation.
  • Confidentiality concerns in litigation against competitors.
  • How to settle a dispute with a competitor (without violating antitrust law).
  • Item 3 franchise disclosure requirements.

Enforcing/Attacking Liquidated Damages—Key Considerations and What Judges are Thinking

Liquidated damages clauses can be an effective tool in addressing problem franchisees and controlling the franchise relationship. This session provides an overview on liquidated damages clauses, what works and what doesn’t, and will address the practical challenges that franchisors face in convincing courts to enforce the liquidated damages clause, including what evidence is needed.

Settlements & Releases

You’ve settled your action or arbitration, now what? Best practices for ensuring strong settlements and enforceable releases

  • Drafting a Functioning Settlement Agreement - including- who it is binding on, special circumstances, tax consequences including recent cases and evolution in standard boilerplate, timing and key terms including dispute resolution, confidentiality and payment specificity.
  • Drafting an Enforceable Release - including parties to the release, scope of claims released and specificity of claims released.
  • Steps to Take if You Need to Enforce

Ask the Regulators: Current Franchise Disclosure and Registration

Basics Track: Handling Defaults and Terminations

This program will discuss how to handle franchise defaults in order to secure compliance with the franchise agreement while minimizing potential franchisor liability.

Topics to be discussed will include:

  • Identifying potential problems before they arise.
  • Considerations in deciding to default/terminate.
  • Navigating the labyrinth of state relationship laws.
  • Steps in the default/termination process.
  • Dealing with other franchisees.
  • Enforcing termination and post-term obligations.

3:00 pm – 3:30 pmRefreshment Break

3:30 pm – 4:45 pm

Concurrent Sessions

Ch-ch-ch-ch-changes: Implementing System Changes, Upgrades and New Directions Under Existing Franchise Agreement

This experienced business and legal panel will share their success stories (and with the benefit of 20:20 hindsight) lessons on what could have been done differently when implementing system-wide changes after the franchise agreement has been entered into, including:

  • Requiring new equipment and menu or service offerings, suppliers;
  • Discontinuing a product or service from the franchise system;
  • Changing or updating the franchise system’s primary brand or trade dress and addressing remodeling requirements;
  • Fundamental changes to the franchise concept and method of doing business, including changes to system standards;
  • Effecting change through the franchise agreement and operations manuals;
  • How to get franchisee buy-in and ideally franchisee ambassadors to help sell the change to other franchisees;
  • How to manage the period of flux between “old” and “new” as the changes are implemented.

Greying of a Franchise System: How to Deal with an Aging Franchisee Population

Though often overlooked, succession planning is of critical importance to franchisees and franchisors alike, as it is essential for the franchisee’s preservation of wealth created over a lifetime, as well as the continued financial success of the franchised business and brand into the next generation.

Succession planning issues include:

  • Entrepreneurs who believe they will never die or become incapacitated.
  • Dealing with franchisees beginning to “burn out.”
  • Common franchise agreement provisions and issues.
  • Ensuring survival and growth of the franchised business.
  • Passing ownership/control to family members verses others.
  • Obtaining value.
  • Planning for Uncle Sam.

Exemption Based Franchising for Established and Start-Up Franchisors

Exemptions from the federal and state franchise laws can be very useful to both established and start-up franchisors in attempting to avoid state registration and potentially even FDD preparation. Some franchisors rely on exemptions in structuring their entire expansion strategy. Other franchisors explore exemption possibilities when delay in obtaining state registration may jeopordize a specific deal. In assessing the availabilty of exemptions under federal and/or state law, attention to detail is crucial as the exemptions are varied in their requirements and scope. This session’s goal is to help practioners learn to easily navigate and apply federal and state exemptions. In addition to covering the elements of the various exemptions and the necessary or recommended steps for claiming them, the session will also address steps a franchisor may be required to take if it loses the qualifications for a claimed exemption as well as reasons a franchisor may opt not to take advantage of available exemptions.

International Development – Personal Guarantees and Other Mechanisms to Secure Franchisee Payment and Performance

This session is designed to address the unique issues associated with securing franchisee payment and performance in the international context. The session will examine topics including:

  • Purpose and goals of guarantees – payment of monies, performance, non-competition, and confidentiality.
  • Negotiating and drafting personal guarantees.
  • Enforcement issues with personal guarantees, including formalities in execution, choice of law, and dispute resolution procedures.
  • Alternatives to personal guarantees – letters of credit/bank guarantees/deposits, pledge certificate of deposit, capitalization commitment, security deposit, cash escrow, corporate guarantees, US affiliate, caps, trade credit insurance, etc.
  • Important role of local counsel.

A Deep Dive into Due Diligence from a Private Equity Seller or Buyer’s Perspective

Private equity ownership of franchisors and multi-concept franchisees across a broad range of industries is the new normal in the world of selling and buying of franchise systems. Private equity sellers and buyers come to a deal focused on typical considerations impacting valuation including the sustainability of revenue streams, flexibility to make system changes, unit economics and the scaling of the franchise business model for future growth. The increased volume of private equity sales, competitive jogging for positioning by buyers for the most attractive systems and in some cases, reduced opportunities for negotiation and risk assessment by buyers has prompted many private equity groups to focus their franchise due diligence efforts on data that will most quickly expose material gaps in their valuation analysis such as purchasing arrangements, rebates and commissions, marketing and advertising fund management, unit performance and reporting, standards compliance and joint employer risk, financial performance representations, international development and unit openings, transfers and closings. Panelists with diverse experiences in private equity and related deals will address a variety of the approaches used by private equity sellers and buyers to frame issues relevant to their due diligence efforts, assess and manage risks, negotiate reps and warranties, select and use rep and warranty insurance coverage and other practices likely to enhance the seller’s or buyer’s use of information about the target franchise system.

The New Item 19 Commentary and Other Advanced Financial Performance Representation Issues: The Devil is in the Details

This program will explore the world of financial performance representations (“FPRs”) focusing on any new guidance provided by the North American Securities Administrators Association (“NASAA”). In addition to any new guidance issued by NASAA, the panelists will discuss the various types of financial performance representations, including those non-traditional forms of FPRs and general media claims, best practices for drafting financial performance representations, and novel methods for the use of FPRs.

Basics Track: Mergers & Acquisitions

5:00 pm – 6:30 pmNetworking Reception

8:00 am – 3:30 pmRegistration Desk Open

8:00 am – 8:30 amContinental Breakfast

8:30 am – 10:00 am

General Session - Judicial Update

Check back soon for more information!

10:00 am – 10:15 amRefreshment Break

10:15 am – 11:30 am

Concurrent Sessions

I'll Have What She's Having: An Exploration of Legal and Ethical Issues When Representing Clients that Compete

Attorneys are relied upon by clients because of their unique or specialized knowledge about a particular practice area of the law. As a result, it is not uncommon for attorneys to have clients whose businesses may be directly competitive with one another. This workshop will explore some of the legal and ethical issues and concerns that may arise when an attorney or law firm represents competitors.

This workshop will examine topics that include:

  • Practical discussion of benefits and concerns.
  • Model Rules of Professional Conduct that impact representing competitors, including actual and potential conflicts of interest under Rule 1.7 and state law equivalents; disclosure of confidential communications, attorney‐client privilege issues and duties to current and former clients.
  • Fee agreements and the necessity of client waivers.
  • Representing franchisees from multiple systems; including systems that are competitive.
  • Positional conflicts and client mandates.

Practical Applications in Joint Employer Liability

This session will focus on best practices of how to cope with the uncertain business environment resulting from the joint employer decision. How do you craft your franchise agreements? How do you deal with the new overtime rule? What can you do to ensure minimum wage and hour compliance? How do you get information to franchisees without incurring joint employer liability?

Litigation Against Competitors

Whether it comes in the context of trade secret misappropriation, noncompete enforcement when officers, employees or franchisees “switch sides,” interference with contracts and trademarks infringement, unfair competition or even antitrust, the franchise industry is not immune to legal disputes between competitors. This session will explore ways to avoid such disputes or – if they cannot be avoided – to position the company for the best possible outcome.

  • Identifying areas in which competitors can come into conflict.
  • When a franchisee breaks away and joins or sells to a competing chain.
  • Legal claims that can be brought against competitors.
  • Budgetary impact of significant litigation.
  • Confidentiality concerns in litigation against competitors.
  • How to settle a dispute with a competitor (without violating antitrust law).
  • Item 3 franchise disclosure requirements.

Enforcing/Attacking Liquidated Damages—Key Considerations and What Judges are Thinking

Liquidated damages clauses can be an effective tool in addressing problem franchisees and controlling the franchise relationship. This session provides an overview on liquidated damages clauses, what works and what doesn’t, and will address the practical challenges that franchisors face in convincing courts to enforce the liquidated damages clause, including what evidence is needed.

Ch-ch-ch-ch-changes: Implementing System Changes, Upgrades and New Directions Under Existing Franchise Agreement

This experienced business and legal panel will share their success stories (and with the benefit of 20:20 hindsight) lessons on what could have been done differently when implementing system-wide changes after the franchise agreement has been entered into, including:

  • Requiring new equipment and menu or service offerings, suppliers;
  • Discontinuing a product or service from the franchise system;
  • Changing or updating the franchise system’s primary brand or trade dress and addressing remodeling requirements;
  • Fundamental changes to the franchise concept and method of doing business, including changes to system standards;
  • Effecting change through the franchise agreement and operations manuals;
  • How to get franchisee buy-in and ideally franchisee ambassadors to help sell the change to other franchisees;
  • How to manage the period of flux between “old” and “new” as the changes are implemented.

Basics Track: Trademarks & IP

This program will explore the “why’s” and “how’s” of protecting the franchise system’s Intellectual Property.

  • Identifying what can and should be protected, when and how (domestic and international).
  • Devising a strategy for protecting the system’s IP.
  • Drafting and enforcing IP provisions of the Franchise Agreement.
  • Protecting against threats from within and outside of the franchise system.
  • Recent decisions impacting the protectability of the portfolio.

11:45 am – 1:15 pm

Boxed Luncheon & Roundtables

Check back soon for more information!

1:30 pm – 2:45 pm

Concurrent Sessions

Settlements & Releases

You’ve settled your action or arbitration, now what? Best practices for ensuring strong settlements and enforceable releases

  • Drafting a Functioning Settlement Agreement - including- who it is binding on, special circumstances, tax consequences including recent cases and evolution in standard boilerplate, timing and key terms including dispute resolution, confidentiality and payment specificity.
  • Drafting an Enforceable Release - including parties to the release, scope of claims released and specificity of claims released.
  • Steps to Take if You Need to Enforce

Greying of a Franchise System: How to Deal with an Aging Franchisee Population

Though often overlooked, succession planning is of critical importance to franchisees and franchisors alike, as it is essential for the franchisee’s preservation of wealth created over a lifetime, as well as the continued financial success of the franchised business and brand into the next generation.

Succession planning issues include:

  • Entrepreneurs who believe they will never die or become incapacitated.
  • Dealing with franchisees beginning to “burn out.”
  • Common franchise agreement provisions and issues.
  • Ensuring survival and growth of the franchised business.
  • Passing ownership/control to family members verses others.
  • Obtaining value.
  • Planning for Uncle Sam.

Exemption Based Franchising for Established and Start-Up Franchisors

Exemptions from the federal and state franchise laws can be very useful to both established and start-up franchisors in attempting to avoid state registration and potentially even FDD preparation. Some franchisors rely on exemptions in structuring their entire expansion strategy. Other franchisors explore exemption possibilities when delay in obtaining state registration may jeopordize a specific deal. In assessing the availabilty of exemptions under federal and/or state law, attention to detail is crucial as the exemptions are varied in their requirements and scope. This session’s goal is to help practioners learn to easily navigate and apply federal and state exemptions. In addition to covering the elements of the various exemptions and the necessary or recommended steps for claiming them, the session will also address steps a franchisor may be required to take if it loses the qualifications for a claimed exemption as well as reasons a franchisor may opt not to take advantage of available exemptions.

The New Item 19 Commentary and Other Advanced Financial Performance Representation Issues: The Devil is in the Details

This program will explore the world of financial performance representations (“FPRs”) focusing on any new guidance provided by the North American Securities Administrators Association (“NASAA”). In addition to any new guidance issued by NASAA, the panelists will discuss the various types of financial performance representations, including those non-traditional forms of FPRs and general media claims, best practices for drafting financial performance representations, and novel methods for the use of FPRs.

Ask the Regulators: Current Franchise Disclosure and Registration

Basics Track: Franchise Litigation

This program will discuss essential considerations of franchise litigation and alternative dispute resolution, including:

  • Unique aspects of franchise litigation.
  • Pre-filing dispute resolution and other considerations.
  • Pre-trial procedural matters and motion practice.
  • Common claims and defenses by franchisors and franchisees.
  • Principal remedies.
  • Settlement and post-judgment / post-award considerations.

2:45 pm – 3:00 pmRefreshment Break

3:00 pm – 4:15 pm

Concurrent Sessions

Update on Joint Employer

This session will take a holistic approach to joint employer, discussing not just the NLRB’s actions from the standpoint of the franchisor, but also will discuss the joint employer activities of the Department of Labor, OHSA, federal courts, State Attorneys General, state legislatures and the likely impact of the election on the franchise industry from a business prospective.

The Slippery Sands of Post-Termination Enforcement - Opportunities for Franchisees; Pitfalls for Franchisors

Two threads of legal developments in recent years have made post-termination enforcement less certain for franchisors than it used to be. Since the Supreme Court’s decision in the eBay case some years ago, some courts have held that there is no presumption of irreparable injury from unauthorized use of a trademark. As a result, some franchisors have stumbled on the lack of a presumption and have been denied preliminary injunctions against use of their trademarks by terminated franchisees. Similarly, some courts have tightened requirements for enforcement of post-termination non-competes and have denied franchisors the right to stop terminated franchisees from continuing to operate as independents after termination. Are these decisions a new bill of rights for franchisees or a writ of execution for franchisors? What can the lawyers for either side do?

Practical Alternates to Termination

Communicating with struggling franchisees; franchisor resale programs; mutual terminations; mediation. Issues that franchisees face and how the franchisor can help.

RedditAndWeep? Protecting Your Brand and Reputation in Social Media – A Continuum of Approaches From Engagement to Litigation

The ubiquity of social media presents infinite opportunities for people to pass comment on franchisors’ brands and franchisees’ locations. Whether the commenters are consumers, employees, paid influencers, or competitors, franchised brands are targets for praise and criticism in equal measure. What steps can a franchisor and/or a franchisee take when pointed criticism spills over to brand diminution? The best solutions when dealing with in social media are often negotiated behind the scenes. There may come a time, however, where litigation must be brought.

This session will address:

  • Practical pre-litigation approaches that have proven successful in the past.
  • How to assess when a litigated response is necessary, taking into account what can be considered a successful outcome and the potential cost of further bad publicity.
  • Engaging social media outlets themselves (Facebook, LinkedIn, Twitter, etc.).
  • What obligations do franchisor and franchisee each have to engage, or not, in social media to protect or grow the brand.

This session will provide a review of recent case law in these areas along with first-hand experiences from the panel and the audience.

Basics Track: International Growth

The first part of this program will cover the fundamentals of international franchising, including:

  • How to structure the deal – methods of international expansion.
  • Disclosure requirements in developed markets (including Canada).
  • Choosing the right franchise partner.

The second part of this program will discuss Hot Topics in international franchising, including:

  • Emerging markets, such as Africa and the Caribbean (including Cuba).
  • The future of franchising abroad – new franchise legislation, changes in the European Union, joint employer regulation.

4:15 pmLegal Symposium Adjournment

LOCATION
JW Marriott
1331 Pennsylvania Avenue NW
Washington, DC 20004

IFA has a reserved room block at the JW Marriott for the 2017 Legal Symposium. Our room rate for a standard room is $357 per night. You may reserve your hotel room via phone by calling 800-393-2503 or via the link below. The deadline for making a reservation is April 12, 2017, or when the IFA room block is filled, whichever is first. Once the room block is sold out, reservations will be accepted on a space availability basis at the group rate.

Reserve

FUTURE DATES

51st Annual IFA Legal Symposium – May 6-8, 2018; JW Marriott, Washington, DC

52nd Annual IFA Legal Symposium – May 5-7, 2019; JW Marriott, Washington, DC

53rd Annual IFA Legal Symposium – May 3-5, 2020; Grand Hyatt, Washington, DC

54th Annual IFA Legal Symposium – May 2-4, 2021; Grand Hyatt, Washington, DC

CONTACT US

To contact the IFA Conferences Department please email events@franchise.org or call 202-662-0763

MEMBERS