1331 Pennsylvania Avenue NW
Washington, DC 20004
United States
Welcome by: Stuart Hershman, Partner, DLA Piper LLP (US); Chair, Legal Symposium Task Force
Opening Panel Discussion: IFA Headlines the Franchise News that Matters Most to You
As fast moving and provocative alternative to your normal legal news, the opening session will give you a 360ᴼ overview of the latest topics, developments, and trends in franchise and distribution law, setting the stage for the remainder of the Symposium which follows. Inside franchising, our well-sourced beat reporters will provide you highlights and updates on the legal news drivers and legislative developments/initiatives of the day, as well as preview several of the breakout sessions to follow that will enable you to dive deeper into these topics. From privacy and data security/GDPR, to anti-poaching developments; from block-chain technology (including smart contracting) to delivery service and aggregators; and from new revenue-recognition guidance in FASB ASC Topic 606 to the distribution of legal marijuana, we’ll cover the franchise legal issues that matter most to you.
Moderator: Leonard MacPhee, Shareholder, Polsinelli; Vice Chair, Legal Symposium Task Force
Speakers: Bruce Brown, Associate Counsel, Darden Restaurants; Darryl Marsch, Sr. VP, General Counsel & Secretary, Wingstop Restaurants; Cynthia Parres, Vice President & General Counsel, Houlihan’s Restaurant Group
Digital Transformation in a Franchise System: Keeping Up with The Technology Race Within the Bounds of Existing Agreements
This session will cover the need to adopt a change mindset system wide and strategies to achieve that change mindset, challenges encountered with evaluating alternative technologies and how to overcome those challenges; negotiating and administering complex technology vendor transactions, including remedies for failure to satisfy service level requirements and strategies for allocating risk for implications of data breach and other privacy issues; and implementing technology system changes with as little disruption to the business as possible.
Speakers: Tanya Morrison, Vice President & General Counsel, Home Instead Senior Care; Ashley Williams, CFE, General Counsel, The MAIDS International, Inc.;Charlene Wilson, Assistant General Counsel, H & R Block, Inc.
Food Delivery Service Issues
Consumers have embraced the convenience and on-demand nature of third-party delivery apps or “aggregators” such as UberEats, DoorDash, SkipTheDishes and GrubHub. This Amazon-like shift in how consumers interact with the QSR and Fast-Casual food industry creates business opportunities and legal challenges for franchisors and franchisees.
How do you select the right aggregator(s) for your system?
What should the Franchisor be negotiating with the aggregator for in the master services agreement and franchisee participation agreements?
What changes need to be made to standard franchise agreements?
Who should pay the aggregator’s commission fees (upwards to 30% of the order fee)?
How does it impact fundamental contract terms such as territorial rights, gross sales and royalty payments?
Should franchisee participation be voluntary or mandatory?
Is there still a place for in-house delivery programs?
Potential long-term impact on real estate needs of franchised and company units.
Speakers: Don Fox, CEO, Firehouse Subs; Andraya Frith, Partner, Franchise & Distribution, Osler, Hoskin & Harcourt; Lindsay Morgan, Associate, Greenberg Traurig, LLP
Just How Far Can a Franchisor Go? Ensuring System-Wide Compliance with Price Promotions
Now that vertical resale price maintenance is no longer per se unlawful, can franchisors agree to fix prices with franchisees? Should they?
Are there less risky alternatives—such as merely suggesting resale prices, restricting price advertising by franchisees, and using non-price vertical restraints to discourage discounting?
How should franchisors handle compliance with special price promotions and restrictions on maximum resale prices?
What can franchisors do to minimize their exposure to litigation related to franchise system pricing programs?
Moderator: Michael Sturm, Partner, Gray Plant Mooty
Speakers: Elizabeth Haas, Partner, Foley & Lardner LLP; Joseph Lewis, President & CEO, Painting with a Twist, LLC
Navigating the Changing Privacy and Data Security Landscape
Franchisors and their franchisees collect tons of data. While data creates new opportunities, the news of data breaches and privacy violations have made clear the dangers of holding so much data. As a result, nations and states have sought to codify new rules and standards. The European Union General Data Protection Regulation (GDPR) has recently come into effect, which caused many franchisors to revisit their own data and privacy policies and standards. U.S federal rules apply to specific sectors or types of data, while state laws may apply more broadly to businesses generally. This session will explore the emerging rules and best practices regarding data protection and privacy including:
What are the key principles and rights underlying data protection and privacy laws and regulations?
What is the GDPR and how it can affect franchise systems, even in the U.S.?
Exploring the myriad of federal and state laws and regulations affecting data protection and privacy?
What are a franchisor’s social responsibilities – i.e. maintaining your goodwill with customers and the public?
What a franchisor can do to limit or mitigate its potential exposure?
Moderator: David Allsman, Partner, FisherZucker LLC
Speakers: Shawn Clark, Chief Information Officer, Paul Davis Restoration; Linda Emery, Partner, Quarles & Brady; Elizabeth Simpson, Regulatory Counsel, Home Instead Senior Care
Service Brands - You're Not Selling Burgers
This session will discuss best practices for tackling the unique challenges faced by service brand franchisors. Areas of discussion include:
Protecting and maintaining customer relationships.
Nationwide and multi-territory customers.
Territory transfers and resales.
Service in unsold territories.
Speakers: Grayson Brown, Executive Vice President & General Counsel, Neighborly; Kerry Bundy, CFE, Partner, Faegre Baker Daniels LLP; Ken Hutcheson, CFE, President, U.S. Lawns; Robert Rose, In-House Counsel, Dale Carnegie & Associates, Inc.
What is the Blockchain and Why it is Critical to the Future of Your Domestic and International Business?
Blockchain technology has had a significant impact on commercial contracting, especially in supply networks where trust and verification are essential components of the relationship. It has improved the ability of supply chains to facilitate payment as well as trace and track goods throughout a supply network. Its use is evolving and expanding in a variety of industries.
What is blockchain technology and how has it functioned and/or impacted businesses?
What are its applications in different industries and in franchising in particular?
How has blockchain impacted traditional principles of contract law as well as privacy, intellectual property, confidentiality and governing law or even due diligence in transactions?
What is the future of blockchain?
Speakers: Joyce Mazero, Shareholder, Polsinelli; Daniel McAvoy, Partner, Nixon Peabody; Richard Smith, Partner, Wiley Rein LLP
Basics Track: Registration and Disclosure
To sell franchises in the United States, franchisors must comply with applicable federal and state franchise registration and disclosure requirements. This session will introduce you to the basics of registration and disclosure regulation and best practices for compliance. The following topics will be covered:
What are the federal and state laws that regulate the offer and sale of franchises?
What information must be included in the Franchise Disclosure Document (FDD)?
What are the timing and delivery requirements for the FDD?
Which states require registration of the FDD? What is the registration process?
What exemptions exist for registration and disclosure under federal and state law?
What are the requirements for amending and renewing the FDD?
What are some best practices for making disclosure and obtaining state registrations?
Moderator: Yasmin Mehrain, Vice President & Senior Counsel, Marriott International
Speakers: Stephanie Russ, Of Counsel, Baker & McKenzie; Max Schott, CFE, Principal, Gray Plant Mooty
Franchisee Litigation Perspective
A Practical Guide to Franchise Litigation: Considerations for franchisee lawyers from the new case walking in the door through closing argument. In this session, you will hear war stories from experienced counsel who will regale you with tips and tools of the trade to address:
The myriad of claims and defenses commonly raised by franchisees and franchisors.
The proactive measures that franchisors and franchisees can take to avoid disputes and potential litigation.
Their perspective in analyzing the strengths of these claims, tailoring a plan of action, which may include alternatives to litigation and real-world strategies to prove claims at trial.
Moderator: David Kaufmann, Senior Partner, Kaufmann Gildin & Robbins LLP
Speakers: Carmen Caruso, Principal, Carmen D. Caruso Law Firm; Robert Zarco, Zarco, Einhorn, Salkowski & Brito, P.A.
How to Best Avoid or Defend an ADA Drive-By Lawsuit
Franchisor and franchisee liability under the ADA and relevant state laws.
Typical characteristics, demands and legal issues in “drive-by” and “surf-by” lawsuits.
Hot issues in today’s virtual and physical barrier cases.
Best practices for avoiding, mitigating and allocating risk to serial ADA claims.
Strategies for resolving serial ADA claims, from negotiated resolutions to discovery, expert witnesses and trial.
Speakers: Eunice Nakamura, Managing Counsel, G6 Hospitality LLC; Jonathan Perlman, Shareholder, Genovese Joblove & Battista, P.A.; R. Henry Pfutzenreuter, Attorney, Larkin Hoffman Daly & Lindgren
Legal Ethics in Counseling Franchise Systems in Crisis
Franchise systems may face a variety of crisis situations, which may unfold in the public eye or as private internal matters. Attorneys counseling the participants, including franchisors, company executives, franchisees and associations, will need to be alert to and navigate the legal ethical concerns. Ethical considerations to be discussed include:
Identifying the client and scope of the representation: As organizations, many franchisors will have parent entities, affiliates, and predecessors. As franchise systems evolve, identifying the client and potential conflicts among the stakeholders becomes more complex.
Spotting potential conflicts: Evaluating potential conflicts of interest – both external and internal within the organization and key participants – is essential. Is joint representation of key stakeholders possible and what actions may be required if developments reveal a conflict during the course of a joint representation? Factors at play include who has authority to act for the company or to direct the representation, to whom does the attorney report and how may this change, and the attorney’s past representations. As the numbers of franchise system sales and multi-brand portfolios rise, so does the potential for thorny conflicts. In-house counsel may face particularly awkward issues navigating internal conflicts.
Protecting the attorney client privilege: Considerations include how to maximize assistance from PR personnel and consultants without compromising the attorney client privilege.
The issues and possible ethical hazards vary based on the business (is it publicly traded or privately held) and the nature of the crisis and conflict (was there criminal or ethical misconduct by employees or an executive, a product defect, fraud, bankruptcy, or public and customer relations controversy). Whatever the source or type of business, attorneys counseling clients during a business crisis need to prepare for a host of interesting ethical issues.
Speakers: James Rubinger, Partner, Plave Koch PLC.; Daniel Waddell, Senior Counsel, Papa John’s International, Inc.; Pete Ward, General Counsel, Tropical Smoothie Café
Why Is the State Examiner Making Me Change That Disclosure? Dealing with the Unusual, Uncommon, or Atypical Comments That State Examiners Raise
Overview of the NASAA Guidelines and their intersection with the FTC Franchise Rule.
Address the state securities agencies that actively comment on FDDs (and have authority to do so based on state law).
Provide suggested tips for assessing the comments and responding to them.
Discuss whether NASAA’s new State Cover Sheet proposal may help to clarify some areas of ambiguity.
Speakers: Mike Drumm, CFE, Attorney, Drumm Law, LLC; Matthew Kreutzer, Member, Howard & Howard Attorneys PLLC; John Moore, Partner, Husch Blackwell LLP
Supply and Demand: How to Negotiate Supplier and Distributor Agreements and Work with Franchisees Regarding their Implementation
Few things are as pivotal to a successful franchise brand as the uniformity of products offered and sold. In order to achieve such uniformity, franchisors often benefit from negotiating systemwide supply contracts. However, a number of hurdles can stand in the way of achieving this goal, such as: (i) establishing a supply chain capable of supporting an entire system; (ii) securing the best possible competitive pricing for such supply chain; (iii) requiring franchisee compliance with such sources of supply and standard contract terms; and, (iv) avoiding competition issues. This session will explore the ins and outs of securing, negotiating and implementing system supply chains.
Speakers: Curtis S. Gimson, Consultant, Arby’s Restaurant Group, Inc.; Robert Huelin, Vice President, Legal and Compliance, Wireless Zone; David B. Ramsey, Partner , Kaufmann Gildin & Robbins LLP
Unique Issues in Arbitrating International Cases
This session will examine:
Venue considerations.
Evidentiary issues.
Discovery issues.
Enforcement of awards.
Drafting arbitration clauses.
Speakers: Jiri Jaeger, Partner, Bird & Bird LLP; Jeffrey Karlin, Director & Legal Counsel, Dunkin’Brands, Inc.
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 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.
Moderator: Aaron-Michael Sapp, Attorney, Cheng Cohen LLC
Speakers: Sarah Osborn Hill, Counsel, KFC Corporation; Nicole Liguori Micklich, Partner, Urso, Liguori & Micklich
Enforcement and Risks of Post-termination Buy-backs and in Term Step-in Rights
How should the franchise agreement provide for a valuation method for buy backs?
Under what circumstances can and should franchisor take over the franchisee’s location?
What are the risks associated with taking over a franchisee location during the term?
Where and how to enforce buy back clauses and assumption provisions.
Speakers: Morgan Ben-David, Founding Partner, AXS Law; James Goniea, General Counsel, Anytime Fitness LLC; Patrick Maslyn, Of Counsel, Kaufman & Canoles
Food Delivery Service Issues
Consumers have embraced the convenience and on-demand nature of third-party delivery apps or “aggregators” such as UberEats, DoorDash, SkipTheDishes and GrubHub. This Amazon-like shift in how consumers interact with the QSR and Fast-Casual food industry creates business opportunities and legal challenges for franchisors and franchisees.
How do you select the right aggregator(s) for your system?
What should the Franchisor be negotiating with the aggregator for in the master services agreement and franchisee participation agreements?
What changes need to be made to standard franchise agreements?
Who should pay the aggregator’s commission fees (upwards to 30% of the order fee)?
How does it impact fundamental contract terms such as territorial rights, gross sales and royalty payments?
Should franchisee participation be voluntary or mandatory?
Is there still a place for in-house delivery programs?
Potential long-term impact on real estate needs of franchised and company units.
Speakers: Don Fox, CEO, Firehouse Subs; Andraya Frith, Partner, Franchise & Distribution, Osler, Hoskin & Harcourt; Lindsay Morgan, Associate, Greenberg Traurig, LLP
Franchise Agreement Provisions You Should Expect to Negotiate When Entering into Non-Traditional Locations and in Other Unique Situations
“We don’t negotiate Franchise Agreements…or do we?” Sometimes our time tested provisions will not best serve the franchise system we support. When is it appropriate to modify franchise agreements and how do you go about doing it? This session will answer these questions and provide practical guidance from people to manage these issues every day.
Negotiated Provisions – Non Traditional Spaces
Food
Service
Hospitality
(Others)
Negotiated Provisions – Unique Situations
Tactics
Franchisee Lawyer Netogiation Tactics
Franchisor Lawyer Negotiation Tactics
Managing Disparate Franchise Agreements
Registration Considerations of Negotiated Changes (Registrations States)
Speakers: Maral Kilejian, CFE, Partner, Haynes and Boone, LLP; Jonathan Koudelka, CFE, General Counsel, Franworth; Chelsea Severson, Corporate Counsel, HMS Host
In the Limelight: Non-solicitation Clauses and Franchise Agreements
Non-solicitation agreements in FDDs and other franchise documents are coming under scrutiny at the federal and state level. What is the potential impact of proposed legislation at the federal and state levels or other attorney general actions? Are states reacting differently? Should all franchise systems be concerned?
Speakers: Richard Duncan, Partner, Faegre Baker Daniels LLP; Jan Gilbert, Principal, Gray Plant Mooty; Todd Leff, President & CEO, Hand & Stone Massage and Facial Spa
The Distribution of Legal Cannabis – Impact and Opportunities for Franchising
In several U.S. states and in all of Canada the sale and distribution of medical and/or recreational cannabis has been legalized. This workshop will address:
What type of Cannabis use and distribution is legal and where in the US and Canada?
What is the current state of the business climate and market…a new “Gold Rush”?
What is the role for franchising in the distribution of Cannabis?
What unique issues arise in a Cannabis business, including production, licensing, distribution, banking, tax, packaging and labelling, advertising and marketing and trademark protection, branding and licensing.
What is the near and long term future hold in regard to legalization? What pitfalls await?
Moderator: Frank Robinson, Partner, Cassels Brock & Blackwell LLP
Speakers: Dave Koch, Managing Partner, Plave Koch PLC; Dawn Newton, Partner, Donahue Fitzgerald LLP
What is the Blockchain and Why it is Critical to the Future of Your Domestic and International Business?
Blockchain technology has had a significant impact on commercial contracting, especially in supply networks where trust and verification are essential components of the relationship. It has improved the ability of supply chains to facilitate payment as well as trace and track goods throughout a supply network. Its use is evolving and expanding in a variety of industries.
What is blockchain technology and how has it functioned and/or impacted businesses?
What are its applications in different industries and in franchising in particular?
How has blockchain impacted traditional principles of contract law as well as privacy, intellectual property, confidentiality and governing law or even due diligence in transactions?
What is the future of blockchain?
Speakers: Joyce Mazero, Shareholder, Polsinelli; Daniel McAvoy, Partner, Nixon Peabody; Richard Smith, Partner, Wiley Rein LLP
Basics Track: Mergers & Acquisitions
This session will provide the basics for acquiring and selling a franchise system.
Transaction structure and key considerations (for example, asset purchase vs. equity purchase).
Valuation metrics.
Due Diligence considerations.
Key deal negotiation points (confidentiality agreements, exclusivity, breakup/reverse breakup fees, holdback, etc.).
Disclosure considerations (FTC, SEC, franchisees, employees, etc.).
System transition post-closing.
Speakers: Brian Balconi, General Counsel, The Cleaning Authority; Richard Morey, CFE, Partner, DLA Piper LLP (US); Michael B. Weinberg, Partner, Levine Leichtman Capital Partners
Join us for the always popular Judicial Update where our speakers will identify key franchise legal trends that are impacting the franchise community and examine what the most important cases mean for the future of franchising’s legal and business operations. Expert speakers will cover trends and cases in the following areas:
Plaintiff Antitrust Class Actions over Franchise Agreement No-Poaching Provisions, State Investigations of No-Poaching Provisions, and Related Matters.
Speaker: Jennifer Maffett-Nickelman, Partner, Thompson Hine, LLP
Joint Employer and Misclassification Cases.
Speaker: Robert Einhorn, Managing Partner, Zarco, Einhorn, Salkowski & Brito, P.A.
Deficient FDD Disclosure Cases.
Speaker: Andra Terrell, Vice President & Deputy General Counsel, Church’s Chicken
Unapproved Franchise Transfer Cases.
Speaker: Meredith Barnes, Corporate Counsel, FOCUS Brands, Inc.
Franchise Termination and Bankruptcy Cases.
Speaker: Keri McWilliams, Partner, Nixon Peabody
Encroachment Cases.
Speaker: Deborah Coldwell, Partner, Haynes and Boone, LLP
State Law Issues Not Covered by the Above.
Speaker: Mark Clouatre, Partner, Nelson, Mullins, Riley & Scarborough LLP
Digital Transformation in a Franchise System: Keeping Up with The Technology Race Within the Bounds of Existing Agreements
This session will cover the need to adopt a change mindset system wide and strategies to achieve that change mindset, challenges encountered with evaluating alternative technologies and how to overcome those challenges; negotiating and administering complex technology vendor transactions, including remedies for failure to satisfy service level requirements and strategies for allocating risk for implications of data breach and other privacy issues; and implementing technology system changes with as little disruption to the business as possible.
Speakers: Tanya Morrison, Vice President & General Counsel, Home Instead Senior Care; Ashley Williams, CFE, General Counsel, The MAIDS International, Inc.;Charlene Wilson, Assistant General Counsel, H & R Block, Inc.
How to Best Avoid or Defend an ADA Drive-By Lawsuit
Franchisor and franchisee liability under the ADA and relevant state laws.
Typical characteristics, demands and legal issues in “drive-by” and “surf-by” lawsuits.
Hot issues in today’s virtual and physical barrier cases.
Best practices for avoiding, mitigating and allocating risk to serial ADA claims.
Strategies for resolving serial ADA claims, from negotiated resolutions to discovery, expert witnesses and trial.
Speakers: Eunice Nakamura, Managing Counsel, G6 Hospitality LLC; Jonathan Perlman, Shareholder, Genovese Joblove & Battista, P.A.; R. Henry Pfutzenreuter, Attorney, Larkin Hoffman Daly & Lindgren
In the Limelight: Non-solicitation Clauses and Franchise Agreements
Non-solicitation agreements in FDDs and other franchise documents are coming under scrutiny at the federal and state level. What is the potential impact of proposed legislation at the federal and state levels or other attorney general actions? Are states reacting differently? Should all franchise systems be concerned?
Speakers: Richard Duncan, Partner, Faegre Baker Daniels LLP; Jan Gilbert, Principal, Gray Plant Mooty; Todd Leff, President & CEO, Hand & Stone Massage and Facial Spa
Unique Issues in Arbitrating International Cases
This session will examine:
Venue considerations.
Evidentiary issues.
Discovery issues.
Enforcement of awards.
Drafting arbitration clauses.
Speakers: Jiri Jaeger, Partner, Bird & Bird LLP; Jeffrey Karlin, Director & Legal Counsel, Dunkin’Brands, Inc.
Legal Ethics in Counseling Franchise Systems in Crisis
Franchise systems may face a variety of crisis situations, which may unfold in the public eye or as private internal matters. Attorneys counseling the participants, including franchisors, company executives, franchisees and associations, will need to be alert to and navigate the legal ethical concerns. Ethical considerations to be discussed include:
Identifying the client and scope of the representation: As organizations, many franchisors will have parent entities, affiliates, and predecessors. As franchise systems evolve, identifying the client and potential conflicts among the stakeholders becomes more complex.
Spotting potential conflicts: Evaluating potential conflicts of interest – both external and internal within the organization and key participants – is essential. Is joint representation of key stakeholders possible and what actions may be required if developments reveal a conflict during the course of a joint representation? Factors at play include who has authority to act for the company or to direct the representation, to whom does the attorney report and how may this change, and the attorney’s past representations. As the numbers of franchise system sales and multi-brand portfolios rise, so does the potential for thorny conflicts. In-house counsel may face particularly awkward issues navigating internal conflicts.
Protecting the attorney client privilege: Considerations include how to maximize assistance from PR personnel and consultants without compromising the attorney client privilege.
The issues and possible ethical hazards vary based on the business (is it publicly traded or privately held) and the nature of the crisis and conflict (was there criminal or ethical misconduct by employees or an executive, a product defect, fraud, bankruptcy, or public and customer relations controversy). Whatever the source or type of business, attorneys counseling clients during a business crisis need to prepare for a host of interesting ethical issues.
Speakers: James Rubinger, Partner, Plave Koch PLC.; Daniel Waddell, Senior Counsel, Papa John’s International, Inc.; Pete Ward, General Counsel, Tropical Smoothie Café
Basics Track: Franchisor's Intellectual Property and How to Protect It
Basic Types of Intellectual Property
Trademarks
Copyrights
Trade Secrets
Patents
Franchising and IP
Ownership of the IP
Franchise Agreement provisions
FDD disclosures
Trademark and other IP registrations
State, federal and international registrations
Enforcing/protecting the franchisor’s IP rights
Against franchisees
Against third parties
IP protection in the Internet age
Speakers: Vincent Frantz, Attorney, Cheng Cohen LLC; Christopher Kelly, Partner, Wiley Rein
IFA’s Government Relations & Public Policy team will join us to provide an up-to-the-minute account of legislative and regulatory issues affecting franchising on both the federal and state levels.
Enforcement and Risks of Post-termination Buy-backs and in Term Step-in Rights
How should the franchise agreement provide for a valuation method for buy backs?
Under what circumstances can and should franchisor take over the franchisee’s location?
What are the risks associated with taking over a franchisee location during the term?
Where and how to enforce buy back clauses and assumption provisions.
Speakers: Morgan Ben-David, Founding Partner, AXS Law; James Goniea, General Counsel, Anytime Fitness LLC; Patrick Maslyn, Of Counsel, Kaufman & Canoles
Franchise Agreement Provisions You Should Expect to Negotiate When Entering into Non-Traditional Locations and in Other Unique Situations
“We don’t negotiate Franchise Agreements…or do we?” Sometimes our time tested provisions will not best serve the franchise system we support. When is it appropriate to modify franchise agreements and how do you go about doing it? This session will answer these questions and provide practical guidance from people to manage these issues every day.
Negotiated Provisions – Non Traditional Spaces
Food
Service
Hospitality
(Others)
Negotiated Provisions – Unique Situations
Tactics
Franchisee Lawyer Netogiation Tactics
Franchisor Lawyer Negotiation Tactics
Managing Disparate Franchise Agreements
Registration Considerations of Negotiated Changes (Registrations States)
Speakers: Maral Kilejian, CFE, Partner, Haynes and Boone, LLP; Jonathan Koudelka, CFE, General Counsel, Franworth; Chelsea Severson, Corporate Counsel, HMS Host
Why Is the State Examiner Making Me Change That Disclosure? Dealing with the Unusual, Uncommon, or Atypical Comments That State Examiners Raise
Overview of the NASAA Guidelines and their intersection with the FTC Franchise Rule.
Address the state securities agencies that actively comment on FDDs (and have authority to do so based on state law).
Provide suggested tips for assessing the comments and responding to them.
Discuss whether NASAA’s new State Cover Sheet proposal may help to clarify some areas of ambiguity.
Speakers: Mike Drumm, CFE, Attorney, Drumm Law, LLC; Matthew Kreutzer, Member, Howard & Howard Attorneys PLLC; John Moore, Partner, Husch Blackwell LLP
Supply and Demand: How to Negotiate Supplier and Distributor Agreements and Work with Franchisees Regarding their Implementation
Few things are as pivotal to a successful franchise brand as the uniformity of products offered and sold. In order to achieve such uniformity, franchisors often benefit from negotiating systemwide supply contracts. However, a number of hurdles can stand in the way of achieving this goal, such as: (i) establishing a supply chain capable of supporting an entire system; (ii) securing the best possible competitive pricing for such supply chain; (iii) requiring franchisee compliance with such sources of supply and standard contract terms; and, (iv) avoiding competition issues. This session will explore the ins and outs of securing, negotiating and implementing system supply chains.
Speakers: Curtis S. Gimson, Consultant, Arby’s Restaurant Group, Inc.; Robert Huelin, Vice President, Legal and Compliance, Wireless Zone; David B. Ramsey, Partner , Kaufmann Gildin & Robbins LLP
The Distribution of Legal Cannabis – Impact and Opportunities for Franchising
In several U.S. states and in all of Canada the sale and distribution of medical and/or recreational cannabis has been legalized. This workshop will address:
What type of Cannabis use and distribution is legal and where in the US and Canada?
What is the current state of the business climate and market…a new “Gold Rush”?
What is the role for franchising in the distribution of Cannabis?
What unique issues arise in a Cannabis business, including production, licensing, distribution, banking, tax, packaging and labelling, advertising and marketing and trademark protection, branding and licensing.
What is the near and long term future hold in regard to legalization? What pitfalls await?
Moderator: Frank Robinson, Partner, Cassels Brock & Blackwell LLP
Speakers: Dave Koch, Managing Partner, Plave Koch PLC; Dawn Newton, Partner, Donahue Fitzgerald LLP
Basic Track: Franchise Litigation
Given the unique relationship between parties who enter into franchise and distribution agreements, it is no surprise that litigation is a common outcome when one party—or both—feels wronged by the relationship. This program will identify and explore key issues that a party to a franchise agreement or legal practitioner should consider when in the throes of a franchise dispute. The session will cover, among other things:
Litigation vs. alternative dispute resolution.
Pre-trial procedural matters and motion practice.
Common claims and defenses by franchisors and franchisees.
Discovery issues.
And many other fundamentals of franchise litigation.
Speakers: Stacy Howard, Senior Counsel, Commercial Litigation, McDonald’s Corporation; Christopher Mair, Associate, Greenberg Traurig, LLP
Franchisee Litigation Perspective
A Practical Guide to Franchise Litigation: Considerations for franchisee lawyers from the new case walking in the door through closing argument. In this session, you will hear war stories from experienced counsel who will regale you with tips and tools of the trade to address:
The myriad of claims and defenses commonly raised by franchisees and franchisors.
The proactive measures that franchisors and franchisees can take to avoid disputes and potential litigation.
Their perspective in analyzing the strengths of these claims, tailoring a plan of action, which may include alternatives to litigation and real-world strategies to prove claims at trial.
Moderator: David Kaufmann, Senior Partner, Kaufmann Gildin & Robbins LLP
Speakers: Carmen Caruso, Principal, Carmen D. Caruso Law Firm; Robert Zarco, Zarco, Einhorn, Salkowski & Brito, P.A.
Just How Far Can a Franchisor Go? Ensuring System-Wide Compliance with Price Promotions
Now that vertical resale price maintenance is no longer per se unlawful, can franchisors agree to fix prices with franchisees? Should they?
Are there less risky alternatives—such as merely suggesting resale prices, restricting price advertising by franchisees, and using non-price vertical restraints to discourage discounting?
How should franchisors handle compliance with special price promotions and restrictions on maximum resale prices?
What can franchisors do to minimize their exposure to litigation related to franchise system pricing programs?
Moderator: Michael Sturm, Partner, Gray Plant Mooty
Speakers: Elizabeth Haas, Partner, Foley & Lardner LLP; Joseph Lewis, President & CEO, Painting with a Twist, LLC
Navigating the Changing Privacy and Data Security Landscape
Franchisors and their franchisees collect tons of data. While data creates new opportunities, the news of data breaches and privacy violations have made clear the dangers of holding so much data. As a result, nations and states have sought to codify new rules and standards. The European Union General Data Protection Regulation (GDPR) has recently come into effect, which caused many franchisors to revisit their own data and privacy policies and standards. U.S federal rules apply to specific sectors or types of data, while state laws may apply more broadly to businesses generally. This session will explore the emerging rules and best practices regarding data protection and privacy including:
What are the key principles and rights underlying data protection and privacy laws and regulations?
What is the GDPR and how it can affect franchise systems, even in the U.S.?
Exploring the myriad of federal and state laws and regulations affecting data protection and privacy?
What are a franchisor’s social responsibilities – i.e. maintaining your goodwill with customers and the public?
What a franchisor can do to limit or mitigate its potential exposure?
Moderator: David Allsman, Partner, FisherZucker LLC
Speakers: Shawn Clark, Chief Information Officer, Paul Davis Restoration; Linda Emery, Partner, Quarles & Brady; Elizabeth Simpson, Regulatory Counsel, Home Instead Senior Care
Service Brands - You're Not Selling Burgers
This session will discuss best practices for tackling the unique challenges faced by service brand franchisors. Areas of discussion include:
Protecting and maintaining customer relationships.
Nationwide and multi-territory customers.
Territory transfers and resales.
Service in unsold territories.
Speakers: Grayson Brown, Executive Vice President & General Counsel, Neighborly; Kerry Bundy, CFE, Partner, Faegre Baker Daniels LLP; Ken Hutcheson, CFE, President, U.S. Lawns; Robert Rose, In-House Counsel, Dale Carnegie & Associates, Inc.
Basics Track: Expanding Internationally
A co-production of the IFA Legal Symposium and IFA/IBA Joint Conference, this program is intended to bridge the annual IFA Legal Symposium and annual IFA/IBA Joint Conference on International Franchising that immediately follows. To better leverage the vast international franchising resources that will be in attendance, we are inviting you to learn the fundamentals from an incredibly knowledgeable group of lawyers and other advisors from the U.S. and around the world, and then register to stay on for the IFA/IBA Joint Conference that follow. Use this as an opportunity to learn more, and meet franchise lawyers from the U.S. and around the world.
International expansion is not without pitfalls and challenges for franchisors. This program aims to address some of these challenges and provide insight into those issues of primary concern. These include:
Assessing a franchisor’s readiness for international expansion.
Selecting the countries for development.
Deciding on the deal structure.
Choosing the right franchise partner.
Key business terms to address.
Understanding local law and franchise registration / disclosure obligations and trademark requirements.
Understanding the applicability of domestic law and its impact on an international franchise agreement.
Moderator: Francesca Turitto, Of Counsel, Studio Roma Legal Partners
Speakers: Larry Weinberg, CFE, Partner, Cassels Brock & Blackwell LLP; Donald Wray, Senior Corporate Counsel, Domino's; Tao Xu, Partner, DLA Piper LLP (US)
Welcome by: Stuart Hershman, Partner, DLA Piper LLP (US); Chair, Legal Symposium Task Force
Opening Panel Discussion: IFA Headlines the Franchise News that Matters Most to You
As fast moving and provocative alternative to your normal legal news, the opening session will give you a 360ᴼ overview of the latest topics, developments, and trends in franchise and distribution law, setting the stage for the remainder of the Symposium which follows. Inside franchising, our well-sourced beat reporters will provide you highlights and updates on the legal news drivers and legislative developments/initiatives of the day, as well as preview several of the breakout sessions to follow that will enable you to dive deeper into these topics. From privacy and data security/GDPR, to anti-poaching developments; from block-chain technology (including smart contracting) to delivery service and aggregators; and from new revenue-recognition guidance in FASB ASC Topic 606 to the distribution of legal marijuana, we’ll cover the franchise legal issues that matter most to you.
Moderator: Leonard MacPhee, Shareholder, Polsinelli; Vice Chair, Legal Symposium Task Force
Speakers: Bruce Brown, Associate Counsel, Darden Restaurants; Darryl Marsch, Sr. VP, General Counsel & Secretary, Wingstop Restaurants; Cynthia Parres, Vice President & General Counsel, Houlihan’s Restaurant Group
Digital Transformation in a Franchise System: Keeping Up with The Technology Race Within the Bounds of Existing Agreements
This session will cover the need to adopt a change mindset system wide and strategies to achieve that change mindset, challenges encountered with evaluating alternative technologies and how to overcome those challenges; negotiating and administering complex technology vendor transactions, including remedies for failure to satisfy service level requirements and strategies for allocating risk for implications of data breach and other privacy issues; and implementing technology system changes with as little disruption to the business as possible.
Speakers: Tanya Morrison, Vice President & General Counsel, Home Instead Senior Care; Ashley Williams, CFE, General Counsel, The MAIDS International, Inc.;Charlene Wilson, Assistant General Counsel, H & R Block, Inc.
Food Delivery Service Issues
Consumers have embraced the convenience and on-demand nature of third-party delivery apps or “aggregators” such as UberEats, DoorDash, SkipTheDishes and GrubHub. This Amazon-like shift in how consumers interact with the QSR and Fast-Casual food industry creates business opportunities and legal challenges for franchisors and franchisees.
How do you select the right aggregator(s) for your system?
What should the Franchisor be negotiating with the aggregator for in the master services agreement and franchisee participation agreements?
What changes need to be made to standard franchise agreements?
Who should pay the aggregator’s commission fees (upwards to 30% of the order fee)?
How does it impact fundamental contract terms such as territorial rights, gross sales and royalty payments?
Should franchisee participation be voluntary or mandatory?
Is there still a place for in-house delivery programs?
Potential long-term impact on real estate needs of franchised and company units.
Speakers: Don Fox, CEO, Firehouse Subs; Andraya Frith, Partner, Franchise & Distribution, Osler, Hoskin & Harcourt; Lindsay Morgan, Associate, Greenberg Traurig, LLP
Just How Far Can a Franchisor Go? Ensuring System-Wide Compliance with Price Promotions
Now that vertical resale price maintenance is no longer per se unlawful, can franchisors agree to fix prices with franchisees? Should they?
Are there less risky alternatives—such as merely suggesting resale prices, restricting price advertising by franchisees, and using non-price vertical restraints to discourage discounting?
How should franchisors handle compliance with special price promotions and restrictions on maximum resale prices?
What can franchisors do to minimize their exposure to litigation related to franchise system pricing programs?
Moderator: Michael Sturm, Partner, Gray Plant Mooty
Speakers: Elizabeth Haas, Partner, Foley & Lardner LLP; Joseph Lewis, President & CEO, Painting with a Twist, LLC
Navigating the Changing Privacy and Data Security Landscape
Franchisors and their franchisees collect tons of data. While data creates new opportunities, the news of data breaches and privacy violations have made clear the dangers of holding so much data. As a result, nations and states have sought to codify new rules and standards. The European Union General Data Protection Regulation (GDPR) has recently come into effect, which caused many franchisors to revisit their own data and privacy policies and standards. U.S federal rules apply to specific sectors or types of data, while state laws may apply more broadly to businesses generally. This session will explore the emerging rules and best practices regarding data protection and privacy including:
What are the key principles and rights underlying data protection and privacy laws and regulations?
What is the GDPR and how it can affect franchise systems, even in the U.S.?
Exploring the myriad of federal and state laws and regulations affecting data protection and privacy?
What are a franchisor’s social responsibilities – i.e. maintaining your goodwill with customers and the public?
What a franchisor can do to limit or mitigate its potential exposure?
Moderator: David Allsman, Partner, FisherZucker LLC
Speakers: Shawn Clark, Chief Information Officer, Paul Davis Restoration; Linda Emery, Partner, Quarles & Brady; Elizabeth Simpson, Regulatory Counsel, Home Instead Senior Care
Service Brands - You're Not Selling Burgers
This session will discuss best practices for tackling the unique challenges faced by service brand franchisors. Areas of discussion include:
Protecting and maintaining customer relationships.
Nationwide and multi-territory customers.
Territory transfers and resales.
Service in unsold territories.
Speakers: Grayson Brown, Executive Vice President & General Counsel, Neighborly; Kerry Bundy, CFE, Partner, Faegre Baker Daniels LLP; Ken Hutcheson, CFE, President, U.S. Lawns; Robert Rose, In-House Counsel, Dale Carnegie & Associates, Inc.
What is the Blockchain and Why it is Critical to the Future of Your Domestic and International Business?
Blockchain technology has had a significant impact on commercial contracting, especially in supply networks where trust and verification are essential components of the relationship. It has improved the ability of supply chains to facilitate payment as well as trace and track goods throughout a supply network. Its use is evolving and expanding in a variety of industries.
What is blockchain technology and how has it functioned and/or impacted businesses?
What are its applications in different industries and in franchising in particular?
How has blockchain impacted traditional principles of contract law as well as privacy, intellectual property, confidentiality and governing law or even due diligence in transactions?
What is the future of blockchain?
Speakers: Joyce Mazero, Shareholder, Polsinelli; Daniel McAvoy, Partner, Nixon Peabody; Richard Smith, Partner, Wiley Rein LLP
Basics Track: Registration and Disclosure
To sell franchises in the United States, franchisors must comply with applicable federal and state franchise registration and disclosure requirements. This session will introduce you to the basics of registration and disclosure regulation and best practices for compliance. The following topics will be covered:
What are the federal and state laws that regulate the offer and sale of franchises?
What information must be included in the Franchise Disclosure Document (FDD)?
What are the timing and delivery requirements for the FDD?
Which states require registration of the FDD? What is the registration process?
What exemptions exist for registration and disclosure under federal and state law?
What are the requirements for amending and renewing the FDD?
What are some best practices for making disclosure and obtaining state registrations?
Moderator: Yasmin Mehrain, Vice President & Senior Counsel, Marriott International
Speakers: Stephanie Russ, Of Counsel, Baker & McKenzie; Max Schott, CFE, Principal, Gray Plant Mooty
Franchisee Litigation Perspective
A Practical Guide to Franchise Litigation: Considerations for franchisee lawyers from the new case walking in the door through closing argument. In this session, you will hear war stories from experienced counsel who will regale you with tips and tools of the trade to address:
The myriad of claims and defenses commonly raised by franchisees and franchisors.
The proactive measures that franchisors and franchisees can take to avoid disputes and potential litigation.
Their perspective in analyzing the strengths of these claims, tailoring a plan of action, which may include alternatives to litigation and real-world strategies to prove claims at trial.
Moderator: David Kaufmann, Senior Partner, Kaufmann Gildin & Robbins LLP
Speakers: Carmen Caruso, Principal, Carmen D. Caruso Law Firm; Robert Zarco, Zarco, Einhorn, Salkowski & Brito, P.A.
How to Best Avoid or Defend an ADA Drive-By Lawsuit
Franchisor and franchisee liability under the ADA and relevant state laws.
Typical characteristics, demands and legal issues in “drive-by” and “surf-by” lawsuits.
Hot issues in today’s virtual and physical barrier cases.
Best practices for avoiding, mitigating and allocating risk to serial ADA claims.
Strategies for resolving serial ADA claims, from negotiated resolutions to discovery, expert witnesses and trial.
Speakers: Eunice Nakamura, Managing Counsel, G6 Hospitality LLC; Jonathan Perlman, Shareholder, Genovese Joblove & Battista, P.A.; R. Henry Pfutzenreuter, Attorney, Larkin Hoffman Daly & Lindgren
Legal Ethics in Counseling Franchise Systems in Crisis
Franchise systems may face a variety of crisis situations, which may unfold in the public eye or as private internal matters. Attorneys counseling the participants, including franchisors, company executives, franchisees and associations, will need to be alert to and navigate the legal ethical concerns. Ethical considerations to be discussed include:
Identifying the client and scope of the representation: As organizations, many franchisors will have parent entities, affiliates, and predecessors. As franchise systems evolve, identifying the client and potential conflicts among the stakeholders becomes more complex.
Spotting potential conflicts: Evaluating potential conflicts of interest – both external and internal within the organization and key participants – is essential. Is joint representation of key stakeholders possible and what actions may be required if developments reveal a conflict during the course of a joint representation? Factors at play include who has authority to act for the company or to direct the representation, to whom does the attorney report and how may this change, and the attorney’s past representations. As the numbers of franchise system sales and multi-brand portfolios rise, so does the potential for thorny conflicts. In-house counsel may face particularly awkward issues navigating internal conflicts.
Protecting the attorney client privilege: Considerations include how to maximize assistance from PR personnel and consultants without compromising the attorney client privilege.
The issues and possible ethical hazards vary based on the business (is it publicly traded or privately held) and the nature of the crisis and conflict (was there criminal or ethical misconduct by employees or an executive, a product defect, fraud, bankruptcy, or public and customer relations controversy). Whatever the source or type of business, attorneys counseling clients during a business crisis need to prepare for a host of interesting ethical issues.
Speakers: James Rubinger, Partner, Plave Koch PLC.; Daniel Waddell, Senior Counsel, Papa John’s International, Inc.; Pete Ward, General Counsel, Tropical Smoothie Café
Why Is the State Examiner Making Me Change That Disclosure? Dealing with the Unusual, Uncommon, or Atypical Comments That State Examiners Raise
Overview of the NASAA Guidelines and their intersection with the FTC Franchise Rule.
Address the state securities agencies that actively comment on FDDs (and have authority to do so based on state law).
Provide suggested tips for assessing the comments and responding to them.
Discuss whether NASAA’s new State Cover Sheet proposal may help to clarify some areas of ambiguity.
Speakers: Mike Drumm, CFE, Attorney, Drumm Law, LLC; Matthew Kreutzer, Member, Howard & Howard Attorneys PLLC; John Moore, Partner, Husch Blackwell LLP
Supply and Demand: How to Negotiate Supplier and Distributor Agreements and Work with Franchisees Regarding their Implementation
Few things are as pivotal to a successful franchise brand as the uniformity of products offered and sold. In order to achieve such uniformity, franchisors often benefit from negotiating systemwide supply contracts. However, a number of hurdles can stand in the way of achieving this goal, such as: (i) establishing a supply chain capable of supporting an entire system; (ii) securing the best possible competitive pricing for such supply chain; (iii) requiring franchisee compliance with such sources of supply and standard contract terms; and, (iv) avoiding competition issues. This session will explore the ins and outs of securing, negotiating and implementing system supply chains.
Speakers: Curtis S. Gimson, Consultant, Arby’s Restaurant Group, Inc.; Robert Huelin, Vice President, Legal and Compliance, Wireless Zone; David B. Ramsey, Partner , Kaufmann Gildin & Robbins LLP
Unique Issues in Arbitrating International Cases
This session will examine:
Venue considerations.
Evidentiary issues.
Discovery issues.
Enforcement of awards.
Drafting arbitration clauses.
Speakers: Jiri Jaeger, Partner, Bird & Bird LLP; Jeffrey Karlin, Director & Legal Counsel, Dunkin’Brands, Inc.
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 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.
Moderator: Aaron-Michael Sapp, Attorney, Cheng Cohen LLC
Speakers: Sarah Osborn Hill, Counsel, KFC Corporation; Nicole Liguori Micklich, Partner, Urso, Liguori & Micklich
Enforcement and Risks of Post-termination Buy-backs and in Term Step-in Rights
How should the franchise agreement provide for a valuation method for buy backs?
Under what circumstances can and should franchisor take over the franchisee’s location?
What are the risks associated with taking over a franchisee location during the term?
Where and how to enforce buy back clauses and assumption provisions.
Speakers: Morgan Ben-David, Founding Partner, AXS Law; James Goniea, General Counsel, Anytime Fitness LLC; Patrick Maslyn, Of Counsel, Kaufman & Canoles
Food Delivery Service Issues
Consumers have embraced the convenience and on-demand nature of third-party delivery apps or “aggregators” such as UberEats, DoorDash, SkipTheDishes and GrubHub. This Amazon-like shift in how consumers interact with the QSR and Fast-Casual food industry creates business opportunities and legal challenges for franchisors and franchisees.
How do you select the right aggregator(s) for your system?
What should the Franchisor be negotiating with the aggregator for in the master services agreement and franchisee participation agreements?
What changes need to be made to standard franchise agreements?
Who should pay the aggregator’s commission fees (upwards to 30% of the order fee)?
How does it impact fundamental contract terms such as territorial rights, gross sales and royalty payments?
Should franchisee participation be voluntary or mandatory?
Is there still a place for in-house delivery programs?
Potential long-term impact on real estate needs of franchised and company units.
Speakers: Don Fox, CEO, Firehouse Subs; Andraya Frith, Partner, Franchise & Distribution, Osler, Hoskin & Harcourt; Lindsay Morgan, Associate, Greenberg Traurig, LLP
Franchise Agreement Provisions You Should Expect to Negotiate When Entering into Non-Traditional Locations and in Other Unique Situations
“We don’t negotiate Franchise Agreements…or do we?” Sometimes our time tested provisions will not best serve the franchise system we support. When is it appropriate to modify franchise agreements and how do you go about doing it? This session will answer these questions and provide practical guidance from people to manage these issues every day.
Negotiated Provisions – Non Traditional Spaces
Food
Service
Hospitality
(Others)
Negotiated Provisions – Unique Situations
Tactics
Franchisee Lawyer Netogiation Tactics
Franchisor Lawyer Negotiation Tactics
Managing Disparate Franchise Agreements
Registration Considerations of Negotiated Changes (Registrations States)
Speakers: Maral Kilejian, CFE, Partner, Haynes and Boone, LLP; Jonathan Koudelka, CFE, General Counsel, Franworth; Chelsea Severson, Corporate Counsel, HMS Host
In the Limelight: Non-solicitation Clauses and Franchise Agreements
Non-solicitation agreements in FDDs and other franchise documents are coming under scrutiny at the federal and state level. What is the potential impact of proposed legislation at the federal and state levels or other attorney general actions? Are states reacting differently? Should all franchise systems be concerned?
Speakers: Richard Duncan, Partner, Faegre Baker Daniels LLP; Jan Gilbert, Principal, Gray Plant Mooty; Todd Leff, President & CEO, Hand & Stone Massage and Facial Spa
The Distribution of Legal Cannabis – Impact and Opportunities for Franchising
In several U.S. states and in all of Canada the sale and distribution of medical and/or recreational cannabis has been legalized. This workshop will address:
What type of Cannabis use and distribution is legal and where in the US and Canada?
What is the current state of the business climate and market…a new “Gold Rush”?
What is the role for franchising in the distribution of Cannabis?
What unique issues arise in a Cannabis business, including production, licensing, distribution, banking, tax, packaging and labelling, advertising and marketing and trademark protection, branding and licensing.
What is the near and long term future hold in regard to legalization? What pitfalls await?
Moderator: Frank Robinson, Partner, Cassels Brock & Blackwell LLP
Speakers: Dave Koch, Managing Partner, Plave Koch PLC; Dawn Newton, Partner, Donahue Fitzgerald LLP
What is the Blockchain and Why it is Critical to the Future of Your Domestic and International Business?
Blockchain technology has had a significant impact on commercial contracting, especially in supply networks where trust and verification are essential components of the relationship. It has improved the ability of supply chains to facilitate payment as well as trace and track goods throughout a supply network. Its use is evolving and expanding in a variety of industries.
What is blockchain technology and how has it functioned and/or impacted businesses?
What are its applications in different industries and in franchising in particular?
How has blockchain impacted traditional principles of contract law as well as privacy, intellectual property, confidentiality and governing law or even due diligence in transactions?
What is the future of blockchain?
Speakers: Joyce Mazero, Shareholder, Polsinelli; Daniel McAvoy, Partner, Nixon Peabody; Richard Smith, Partner, Wiley Rein LLP
Basics Track: Mergers & Acquisitions
This session will provide the basics for acquiring and selling a franchise system.
Transaction structure and key considerations (for example, asset purchase vs. equity purchase).
Valuation metrics.
Due Diligence considerations.
Key deal negotiation points (confidentiality agreements, exclusivity, breakup/reverse breakup fees, holdback, etc.).
Disclosure considerations (FTC, SEC, franchisees, employees, etc.).
System transition post-closing.
Speakers: Brian Balconi, General Counsel, The Cleaning Authority; Richard Morey, CFE, Partner, DLA Piper LLP (US); Michael B. Weinberg, Partner, Levine Leichtman Capital Partners
Join us for the always popular Judicial Update where our speakers will identify key franchise legal trends that are impacting the franchise community and examine what the most important cases mean for the future of franchising’s legal and business operations. Expert speakers will cover trends and cases in the following areas:
Plaintiff Antitrust Class Actions over Franchise Agreement No-Poaching Provisions, State Investigations of No-Poaching Provisions, and Related Matters.
Speaker: Jennifer Maffett-Nickelman, Partner, Thompson Hine, LLP
Joint Employer and Misclassification Cases.
Speaker: Robert Einhorn, Managing Partner, Zarco, Einhorn, Salkowski & Brito, P.A.
Deficient FDD Disclosure Cases.
Speaker: Andra Terrell, Vice President & Deputy General Counsel, Church’s Chicken
Unapproved Franchise Transfer Cases.
Speaker: Meredith Barnes, Corporate Counsel, FOCUS Brands, Inc.
Franchise Termination and Bankruptcy Cases.
Speaker: Keri McWilliams, Partner, Nixon Peabody
Encroachment Cases.
Speaker: Deborah Coldwell, Partner, Haynes and Boone, LLP
State Law Issues Not Covered by the Above.
Speaker: Mark Clouatre, Partner, Nelson, Mullins, Riley & Scarborough LLP
Digital Transformation in a Franchise System: Keeping Up with The Technology Race Within the Bounds of Existing Agreements
This session will cover the need to adopt a change mindset system wide and strategies to achieve that change mindset, challenges encountered with evaluating alternative technologies and how to overcome those challenges; negotiating and administering complex technology vendor transactions, including remedies for failure to satisfy service level requirements and strategies for allocating risk for implications of data breach and other privacy issues; and implementing technology system changes with as little disruption to the business as possible.
Speakers: Tanya Morrison, Vice President & General Counsel, Home Instead Senior Care; Ashley Williams, CFE, General Counsel, The MAIDS International, Inc.;Charlene Wilson, Assistant General Counsel, H & R Block, Inc.
How to Best Avoid or Defend an ADA Drive-By Lawsuit
Franchisor and franchisee liability under the ADA and relevant state laws.
Typical characteristics, demands and legal issues in “drive-by” and “surf-by” lawsuits.
Hot issues in today’s virtual and physical barrier cases.
Best practices for avoiding, mitigating and allocating risk to serial ADA claims.
Strategies for resolving serial ADA claims, from negotiated resolutions to discovery, expert witnesses and trial.
Speakers: Eunice Nakamura, Managing Counsel, G6 Hospitality LLC; Jonathan Perlman, Shareholder, Genovese Joblove & Battista, P.A.; R. Henry Pfutzenreuter, Attorney, Larkin Hoffman Daly & Lindgren
In the Limelight: Non-solicitation Clauses and Franchise Agreements
Non-solicitation agreements in FDDs and other franchise documents are coming under scrutiny at the federal and state level. What is the potential impact of proposed legislation at the federal and state levels or other attorney general actions? Are states reacting differently? Should all franchise systems be concerned?
Speakers: Richard Duncan, Partner, Faegre Baker Daniels LLP; Jan Gilbert, Principal, Gray Plant Mooty; Todd Leff, President & CEO, Hand & Stone Massage and Facial Spa
Unique Issues in Arbitrating International Cases
This session will examine:
Venue considerations.
Evidentiary issues.
Discovery issues.
Enforcement of awards.
Drafting arbitration clauses.
Speakers: Jiri Jaeger, Partner, Bird & Bird LLP; Jeffrey Karlin, Director & Legal Counsel, Dunkin’Brands, Inc.
Legal Ethics in Counseling Franchise Systems in Crisis
Franchise systems may face a variety of crisis situations, which may unfold in the public eye or as private internal matters. Attorneys counseling the participants, including franchisors, company executives, franchisees and associations, will need to be alert to and navigate the legal ethical concerns. Ethical considerations to be discussed include:
Identifying the client and scope of the representation: As organizations, many franchisors will have parent entities, affiliates, and predecessors. As franchise systems evolve, identifying the client and potential conflicts among the stakeholders becomes more complex.
Spotting potential conflicts: Evaluating potential conflicts of interest – both external and internal within the organization and key participants – is essential. Is joint representation of key stakeholders possible and what actions may be required if developments reveal a conflict during the course of a joint representation? Factors at play include who has authority to act for the company or to direct the representation, to whom does the attorney report and how may this change, and the attorney’s past representations. As the numbers of franchise system sales and multi-brand portfolios rise, so does the potential for thorny conflicts. In-house counsel may face particularly awkward issues navigating internal conflicts.
Protecting the attorney client privilege: Considerations include how to maximize assistance from PR personnel and consultants without compromising the attorney client privilege.
The issues and possible ethical hazards vary based on the business (is it publicly traded or privately held) and the nature of the crisis and conflict (was there criminal or ethical misconduct by employees or an executive, a product defect, fraud, bankruptcy, or public and customer relations controversy). Whatever the source or type of business, attorneys counseling clients during a business crisis need to prepare for a host of interesting ethical issues.
Speakers: James Rubinger, Partner, Plave Koch PLC.; Daniel Waddell, Senior Counsel, Papa John’s International, Inc.; Pete Ward, General Counsel, Tropical Smoothie Café
Basics Track: Franchisor's Intellectual Property and How to Protect It
Basic Types of Intellectual Property
Trademarks
Copyrights
Trade Secrets
Patents
Franchising and IP
Ownership of the IP
Franchise Agreement provisions
FDD disclosures
Trademark and other IP registrations
State, federal and international registrations
Enforcing/protecting the franchisor’s IP rights
Against franchisees
Against third parties
IP protection in the Internet age
Speakers: Vincent Frantz, Attorney, Cheng Cohen LLC; Christopher Kelly, Partner, Wiley Rein
IFA’s Government Relations & Public Policy team will join us to provide an up-to-the-minute account of legislative and regulatory issues affecting franchising on both the federal and state levels.
Enforcement and Risks of Post-termination Buy-backs and in Term Step-in Rights
How should the franchise agreement provide for a valuation method for buy backs?
Under what circumstances can and should franchisor take over the franchisee’s location?
What are the risks associated with taking over a franchisee location during the term?
Where and how to enforce buy back clauses and assumption provisions.
Speakers: Morgan Ben-David, Founding Partner, AXS Law; James Goniea, General Counsel, Anytime Fitness LLC; Patrick Maslyn, Of Counsel, Kaufman & Canoles
Franchise Agreement Provisions You Should Expect to Negotiate When Entering into Non-Traditional Locations and in Other Unique Situations
“We don’t negotiate Franchise Agreements…or do we?” Sometimes our time tested provisions will not best serve the franchise system we support. When is it appropriate to modify franchise agreements and how do you go about doing it? This session will answer these questions and provide practical guidance from people to manage these issues every day.
Negotiated Provisions – Non Traditional Spaces
Food
Service
Hospitality
(Others)
Negotiated Provisions – Unique Situations
Tactics
Franchisee Lawyer Netogiation Tactics
Franchisor Lawyer Negotiation Tactics
Managing Disparate Franchise Agreements
Registration Considerations of Negotiated Changes (Registrations States)
Speakers: Maral Kilejian, CFE, Partner, Haynes and Boone, LLP; Jonathan Koudelka, CFE, General Counsel, Franworth; Chelsea Severson, Corporate Counsel, HMS Host
Why Is the State Examiner Making Me Change That Disclosure? Dealing with the Unusual, Uncommon, or Atypical Comments That State Examiners Raise
Overview of the NASAA Guidelines and their intersection with the FTC Franchise Rule.
Address the state securities agencies that actively comment on FDDs (and have authority to do so based on state law).
Provide suggested tips for assessing the comments and responding to them.
Discuss whether NASAA’s new State Cover Sheet proposal may help to clarify some areas of ambiguity.
Speakers: Mike Drumm, CFE, Attorney, Drumm Law, LLC; Matthew Kreutzer, Member, Howard & Howard Attorneys PLLC; John Moore, Partner, Husch Blackwell LLP
Supply and Demand: How to Negotiate Supplier and Distributor Agreements and Work with Franchisees Regarding their Implementation
Few things are as pivotal to a successful franchise brand as the uniformity of products offered and sold. In order to achieve such uniformity, franchisors often benefit from negotiating systemwide supply contracts. However, a number of hurdles can stand in the way of achieving this goal, such as: (i) establishing a supply chain capable of supporting an entire system; (ii) securing the best possible competitive pricing for such supply chain; (iii) requiring franchisee compliance with such sources of supply and standard contract terms; and, (iv) avoiding competition issues. This session will explore the ins and outs of securing, negotiating and implementing system supply chains.
Speakers: Curtis S. Gimson, Consultant, Arby’s Restaurant Group, Inc.; Robert Huelin, Vice President, Legal and Compliance, Wireless Zone; David B. Ramsey, Partner , Kaufmann Gildin & Robbins LLP
The Distribution of Legal Cannabis – Impact and Opportunities for Franchising
In several U.S. states and in all of Canada the sale and distribution of medical and/or recreational cannabis has been legalized. This workshop will address:
What type of Cannabis use and distribution is legal and where in the US and Canada?
What is the current state of the business climate and market…a new “Gold Rush”?
What is the role for franchising in the distribution of Cannabis?
What unique issues arise in a Cannabis business, including production, licensing, distribution, banking, tax, packaging and labelling, advertising and marketing and trademark protection, branding and licensing.
What is the near and long term future hold in regard to legalization? What pitfalls await?
Moderator: Frank Robinson, Partner, Cassels Brock & Blackwell LLP
Speakers: Dave Koch, Managing Partner, Plave Koch PLC; Dawn Newton, Partner, Donahue Fitzgerald LLP
Basic Track: Franchise Litigation
Given the unique relationship between parties who enter into franchise and distribution agreements, it is no surprise that litigation is a common outcome when one party—or both—feels wronged by the relationship. This program will identify and explore key issues that a party to a franchise agreement or legal practitioner should consider when in the throes of a franchise dispute. The session will cover, among other things:
Litigation vs. alternative dispute resolution.
Pre-trial procedural matters and motion practice.
Common claims and defenses by franchisors and franchisees.
Discovery issues.
And many other fundamentals of franchise litigation.
Speakers: Stacy Howard, Senior Counsel, Commercial Litigation, McDonald’s Corporation; Christopher Mair, Associate, Greenberg Traurig, LLP
Franchisee Litigation Perspective
A Practical Guide to Franchise Litigation: Considerations for franchisee lawyers from the new case walking in the door through closing argument. In this session, you will hear war stories from experienced counsel who will regale you with tips and tools of the trade to address:
The myriad of claims and defenses commonly raised by franchisees and franchisors.
The proactive measures that franchisors and franchisees can take to avoid disputes and potential litigation.
Their perspective in analyzing the strengths of these claims, tailoring a plan of action, which may include alternatives to litigation and real-world strategies to prove claims at trial.
Moderator: David Kaufmann, Senior Partner, Kaufmann Gildin & Robbins LLP
Speakers: Carmen Caruso, Principal, Carmen D. Caruso Law Firm; Robert Zarco, Zarco, Einhorn, Salkowski & Brito, P.A.
Just How Far Can a Franchisor Go? Ensuring System-Wide Compliance with Price Promotions
Now that vertical resale price maintenance is no longer per se unlawful, can franchisors agree to fix prices with franchisees? Should they?
Are there less risky alternatives—such as merely suggesting resale prices, restricting price advertising by franchisees, and using non-price vertical restraints to discourage discounting?
How should franchisors handle compliance with special price promotions and restrictions on maximum resale prices?
What can franchisors do to minimize their exposure to litigation related to franchise system pricing programs?
Moderator: Michael Sturm, Partner, Gray Plant Mooty
Speakers: Elizabeth Haas, Partner, Foley & Lardner LLP; Joseph Lewis, President & CEO, Painting with a Twist, LLC
Navigating the Changing Privacy and Data Security Landscape
Franchisors and their franchisees collect tons of data. While data creates new opportunities, the news of data breaches and privacy violations have made clear the dangers of holding so much data. As a result, nations and states have sought to codify new rules and standards. The European Union General Data Protection Regulation (GDPR) has recently come into effect, which caused many franchisors to revisit their own data and privacy policies and standards. U.S federal rules apply to specific sectors or types of data, while state laws may apply more broadly to businesses generally. This session will explore the emerging rules and best practices regarding data protection and privacy including:
What are the key principles and rights underlying data protection and privacy laws and regulations?
What is the GDPR and how it can affect franchise systems, even in the U.S.?
Exploring the myriad of federal and state laws and regulations affecting data protection and privacy?
What are a franchisor’s social responsibilities – i.e. maintaining your goodwill with customers and the public?
What a franchisor can do to limit or mitigate its potential exposure?
Moderator: David Allsman, Partner, FisherZucker LLC
Speakers: Shawn Clark, Chief Information Officer, Paul Davis Restoration; Linda Emery, Partner, Quarles & Brady; Elizabeth Simpson, Regulatory Counsel, Home Instead Senior Care
Service Brands - You're Not Selling Burgers
This session will discuss best practices for tackling the unique challenges faced by service brand franchisors. Areas of discussion include:
Protecting and maintaining customer relationships.
Nationwide and multi-territory customers.
Territory transfers and resales.
Service in unsold territories.
Speakers: Grayson Brown, Executive Vice President & General Counsel, Neighborly; Kerry Bundy, CFE, Partner, Faegre Baker Daniels LLP; Ken Hutcheson, CFE, President, U.S. Lawns; Robert Rose, In-House Counsel, Dale Carnegie & Associates, Inc.
Basics Track: Expanding Internationally
A co-production of the IFA Legal Symposium and IFA/IBA Joint Conference, this program is intended to bridge the annual IFA Legal Symposium and annual IFA/IBA Joint Conference on International Franchising that immediately follows. To better leverage the vast international franchising resources that will be in attendance, we are inviting you to learn the fundamentals from an incredibly knowledgeable group of lawyers and other advisors from the U.S. and around the world, and then register to stay on for the IFA/IBA Joint Conference that follow. Use this as an opportunity to learn more, and meet franchise lawyers from the U.S. and around the world.
International expansion is not without pitfalls and challenges for franchisors. This program aims to address some of these challenges and provide insight into those issues of primary concern. These include:
Assessing a franchisor’s readiness for international expansion.
Selecting the countries for development.
Deciding on the deal structure.
Choosing the right franchise partner.
Key business terms to address.
Understanding local law and franchise registration / disclosure obligations and trademark requirements.
Understanding the applicability of domestic law and its impact on an international franchise agreement.
Moderator: Francesca Turitto, Of Counsel, Studio Roma Legal Partners
Speakers: Larry Weinberg, CFE, Partner, Cassels Brock & Blackwell LLP; Donald Wray, Senior Corporate Counsel, Domino's; Tao Xu, Partner, DLA Piper LLP (US)
1331 Pennsylvania Avenue NW
Washington, DC 20004
United States
To contact the IFA Conferences Department, please email
[email protected] or call 202-662-0763.