Practice/Industry Group Overview
Greenberg Traurig attorneys have represented clients in establishing franchise and distribution operations in all 50 U.S. states and internationally. With franchise and distribution-focused transactional, litigation and intellectual property law experience, Greenberg Traurig’s franchise and distribution team has a thorough understanding of both the legal and business aspects of franchising and distribution. Our goal is to establish long-term client relationships defined by reliability, responsiveness and trust. Greenberg Traurig’s diverse practice includes the representation of regional, national and international franchisors, franchisees, manufacturers and distributors in virtually every aspect of franchising and distribution, ranging from individual entrepreneurs to internationally recognized public companies.
In addition to offering clients practical franchise and distribution-related legal advice, we draw upon our international platform of experienced Greenberg Traurig attorneys who focus on areas of law relevant to franchising and distribution, such as antitrust and trade regulation, tax, finance, government relations, litigation, corporate and securities, environmental, labor and employment, intellectual property, technology, real estate, restructuring and other matters.
We provide training on all areas of franchise law to help clients stay up to date and compliant with the most recent laws and regulations related to their business, including new Federal Trade Commission regulations and the implications to franchise systems. We have worked with franchise regulators in every registration state – experience that helps us to facilitate an expedient and seamless registration process.
Should a client have an issue, our team includes experienced litigators skilled in effectively and efficiently representing franchise and distribution companies in litigation, arbitration, mediation and other alternative dispute resolution procedures.
Greenberg Traurig’s transactional Franchise & Distribution Practice primarily involves the representation of franchisors, manufacturers and distribution companies, however we also represent multiple outlet, area development and master franchisees, and franchising joint ventures on a wide variety of franchising, distribution, corporate, real estate, technology, finance, environmental, tax and other matters. We assist clients with virtually every aspect of the development and ongoing operation of a franchise or distribution system. We understand that each franchise and distribution system is unique and that one size does not fit all, therefore, our attorneys custom-tailor a plan based on the client’s business and in a manner that will help the client realize his or her short- and long-term goals.
Our key franchise and distribution formation and support services include:
- Structuring franchise and distribution programs (e.g., single unit with or without area development rights or master franchise)
- Assisting with expansion into foreign countries through master franchising, area development relationships, joint ventures and other structures
- Preparing franchise disclosure documents, state registration of franchise offers, and counseling on compliance with all elements of disclosure regulation and franchisee recruitment
- Structuring and documenting franchise and distribution systems, including drafting agreements and collateral documents
- Advising on structuring initial franchise fees, royalties and advertising funds
- Advising on compliance with advertising programs and materials and Internet advertising restrictions directed at the offer of franchises and business opportunities
- Advising on branding and franchise development, as well as trademark clearance and prosecution, and intellectual property protection for domestic or international systems
- Advising on the establishment of franchisee or distributor territories and exclusivity
- Counseling clients on franchise and distributorship relationship issues, including terminations, transfers, buy-backs, restructurings and conversions
- Counseling on compliance with federal and state relationship regulations
- Preparing and filing state business opportunity registrations
- Advising on structuring distribution relationships that avoid regulation under state and federal franchise disclosure and business opportunity laws
- Restructuring existing franchise and distribution relationships
- Addressing relationship problems and advising on ways to enhance franchise and distribution relationships
- Developing supply programs for franchisees and distributors
- Advising buyers of area development and master franchises, as well as joint ventures, and negotiating related agreements
- Conducting due diligence on the acquisition or sale of mature franchise or distribution systems
In some instances, our best advice to our clients is to not structure a business as a franchise. Franchising is not appropriate for all businesses. When this situation arises, we work with the client to establish a business format that will allow the client to achieve his or her business goals.
Greenberg Traurig’s franchise and distribution litigation team assists franchisors and manufacturers in an array of termination-related disputes, including:
- Breach of contract
- Trademark and copyright infringement
- Termination-related claims
- Implied covenant of good faith and fair dealing
- Breach of fiduciary duty claims
- Restrictive covenants
- Transfer issues
- Discrimination claims
- Registration and disclosure violations
- Enforcement of systems standards
- Vicarious liability
- Consumer fraud
We also represent clients in franchise and distribution cases involving a variety of potential claimants, including actions brought by:
- Single franchisees or distributors
- Groups of franchisees or distributors
- Franchisee or distributor associations
- Franchisee trusts
- Suppliers to the franchise system
- Area franchisees/area developers
Our attorneys are experienced in handling trials and appeals in state and federal courts.
Trademarks and Other Intellectual Property
Our lawyers concentrate their practice in trademarks, patent, copyright and trade secret law, including computer software, licensing, advertising, the development of a competitive brand image, labeling, trade dress, trade secrets, the licensing of collateral products, trademarks, service marks, names, likenesses and logos – the full range of matters associated with intellectual property and technology law. We provide clients with the capabilities and reach of one of the largest international trademark prosecution, portfolio management and counseling practices in the United States. Our team offers clients a wide range of services in virtually every aspect of developing, maintaining, enforcing and growing a worldwide brand, including: counseling on the selection, use and protection of trademarks and service marks, filing and prosecuting applications for registration of marks, advice on unfair competition and infringement matters relating to trademarks and trade dress, representation in opposition and cancellation proceedings before the Trademark Trial and Appeal Board and in infringement litigation in federal and state courts, domain name protection and enforcement, copyright counseling and protection, and Internet-related counseling and protection.
After developing the franchise or distribution model, our attorneys begin drafting the necessary documentation, which for franchise programs includes the Franchise Disclosure Document, franchise agreement and area development addendum, if required. For distribution programs, we begin drafting the necessary documentation, which includes distribution, external sales representative, independent contractor and/or employment agreements. We also prepare all other ancillary documents, such as nondisclosure and non-competition agreements, confidentiality agreements and personal guaranties. Our attorneys strive to create agreements that not only provide franchisors and manufacturers with the flexibility, control and protection they need, but that are commercially reasonable and marketable. Lawyers with specific experience may work with us to prepare ancillary documents, such as real estate leases and subleases, collateral assignments of leases, equipment leases, construction agreements, deposit and commitment agreements, Internet policy and procedure agreements, and software and trademark licenses.
Franchise Sales Training
Once all of the documentation is prepared for a franchise program, we offer to conduct a training seminar for the client’s franchise sales staff to familiarize the franchisor with the many intricacies and issues that arise in connection with the offer and sale of franchises. The seminar highlights the legal boundaries of permissible versus illegal franchise marketing activities. In addition, our attorneys provide practical advice regarding franchise sales methods and record keeping practices, as well as ongoing consulting services with respect to various franchise issues as they arise.
Many states have franchise registration or business opportunity exemption requirements that a franchisor must satisfy before it may offer to sell a franchise in those states. We prepare and submit the necessary registration and exemption applications, and work directly with state regulatory agencies to obtain an effective franchise registration or business opportunity exemption as quickly as possible. Over the years, we have worked with franchise regulators in every state that requires registration. Our attorneys have developed excellent working relationships with state regulators, which often helps us to facilitate an expedient and seamless registration process. Prior to receiving an effective registration or exemption, we work with our clients to ensure compliance with advertising restrictions (Internet, programs and materials) directed at the offer of franchises and business opportunities. In addition, we prepare annual registration renewals and post-effective amendments on an as-needed basis.
Continuing Guidance and Support
Once the franchise or distribution system is operational, we provide continuing guidance and support pertaining to a variety of issues that invariably arise in the franchise or distribution context. We advise our clients on the requirements and prohibitions of state relationship laws, which regulate the ongoing relationship between a franchisor and franchisee and a manufacturer and distributor. Relationship laws typically govern issues such as terminations, renewals and transfers. We dedicate a significant amount of time and resources to ensuring that we are current on the latest franchise and distribution trends and developments. We follow legal developments affecting the franchise industry or distribution relationships and continuously review our documents to ensure that they are up to date. We also maintain contact with our clients, notifying them of any recent developments that may be of interest.
Representation of Noncompliant Franchisors
Occasionally, companies seek our advice after encountering legal problems stemming from the failure to comply with state and federal franchise regulations. The penalties for violating state and federal franchise laws can be substantial. Often, these companies simply were unaware that their business format, or the opportunity they were selling, actually constituted the sale of a franchise. In those circumstances, we rely on our strong working relationships with state regulatory agencies to bring these franchise systems into compliance with minimal negative consequences.
International Franchising and Distribution
Our wide-ranging Franchise & Distribution Practice helps clients expand worldwide and includes not only U.S.-based clients seeking to expand abroad, but also foreign clients seeking to expand into the United States and other cross-border markets – and in some cases within their own countries. Whatever the scenario, trans-national franchise and distribution relationships differ in important respects from domestic arrangements. We have extensive experience in structuring, negotiating and documenting international master franchise and area development relationships, joint ventures and other distribution relationships around the globe.
U.S. authorities have become increasingly active in Foreign Corrupt Practices Act (FCPA) enforcement. We are able to assist both large and small U.S. and multinational franchise, manufacturing and distribution companies with:
- Internal investigations of questionable activities or undergoing regulatory investigations
- Due diligence advice (and conduct due diligence) relating to international franchise and distribution transactions and business operations
- The construction and implementation of anticorruption policies and procedures consistent with best practices
- Interacting with DOJ, SEC and foreign regulators to help mitigate potential FCPA exposure and negotiating the best resolution to such matters
Franchise and Distribution Mergers & Acquisitions
Greenberg Traurig’s multi-disciplinary approach has proven invaluable to clients of all sizes and in an array of industries by bringing together attorneys from the firm’s Franchise & Distribution and Mergers & Acquisitions Practices. We come to the table with extensive hands-on experience with M&A transactions involving franchise, manufacturing and distribution companies.
Understanding the franchise regulations and issues involving a franchisor’s or manufacturer’s short- and long-term relationships with its franchisees or distributors are critical to all aspects of the franchisor’s or distributor’s business. They are also critical to all aspects of the purchase or sale of the franchisor or manufacturer. Our understanding of how the franchise or distribution aspects of the business impact each provision in the acquisition agreement makes Greenberg Traurig uniquely suited to represent buyers and sellers of franchise, manufacturer and distribution companies.
Antitrust and Trade Regulation
Antitrust and trade regulation law, both domestic and foreign, inevitably and often impacts franchise and distribution relationships, with many antitrust principles applying specifically to the relationship between manufacturer and distributor, franchisor and franchisee, and seller and buyer. Our antitrust lawyers are involved regularly in counseling clients on the antitrust aspects of distribution arrangements and in litigating those issues.
Articles Authored by Lawyers at this office:
FTB Unable to Assess Enhanced Promoter Penalties Prior to 2004
Jeremiah Coder,G. Michelle Ferreira,Bradley R. Marsh, December 11, 2013
In a sharp rebuke, the California Court of Appeals recently rejected an interpretation by the Franchise Tax Board (FTB) that it could apply a 2003 law that increased the penalty for promoting an abusive tax shelter to periods prior to the effective date of the law. The decision involved California...
New Provisions of the Mexican Federal Tax Code
Diana S. Davis,Felipe Garcia Estrada, December 11, 2013
This GT Alert provides a general overview of the recently enacted provisions of the Tax Code which will become effective as of January 1, 2014. The impact of these obligations on Mexican taxpayers’ compliance is summarized below.
A Brief Recap of Recent Regulatory Actions Regarding Short-Term, Small-Dollar Lending
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, December 09, 2013
Providers of short-term, small-dollar loans, including deposit advance products and payday loans, have increasingly come under attack in recent months by Federal and State regulators. These attacks have been both collateral and direct and they appear to be close to reaching a dramatic crescendo. A...
Sub-Saharan Africa's Performance in this Year's Corruption Perception Index
Matthew J. Cannon,D. Porpoise Evans,Alais L. M. Griffin,Benjamin B. Tymann, December 09, 2013
The Corruption Perceptions Index (CPI), published annually by Transparency International, scores 177 countries and territories on their perceived level of public sector corruption using a scale from 0 (highly corrupt) to 100 (very clean). This highly-respected annual perception ranking draws its...
OCC and FDIC Issue Guidance Regarding Deposit Advance Products
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 29, 2013
On November 21st, the Office of the Comptroller of Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) separately issued guidance on deposit advance loans.4 The guidance establishes numerous expectations for institutions that offer such products. It covers matters such as consumer...
CFPB Takes Action against Mortgage Insurer for Alleged Kickbacks
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 26, 2013
On November 15th, the CFPB filed a complaint and a proposed consent order against Republic Mortgage Insurance Corporation, a private mortgage insurance company (RMIC). The complaint alleges that RMIC violated Section 8 of the Real Estate Settlement Procedures Act by paying illegal kickbacks to...
Lending to Video Gaming Terminal Operators and Manufacturers in Illinois
Christopher M. Chubb,Frederick C. Fisher,Martha A. Sabol,Edward R. Winkofsky, November 26, 2013
Recent developments relating to the implementation of the Illinois Video Gaming Act (230 ILCS 40) (the “Act”) have led to an increased need for debt financing among video gaming terminal (“VGT”) manufacturers and terminal operators in the state. This Client Advisory...
Pricing Practices - Latest UK Developments
Lisa Navarro,Lisa Navarro,Irving Scher,Irving Scher, November 22, 2013
The topic of resale price maintenance, and the line between legitimate and illegitimate management of the pricing of products placed on the market, is one which will always challenge companies involved in distribution relationships. As this article demonstrates, any companies that think that...
U.S. Antitrust Agencies Issue Model Waiver of Confidentiality
Mary K. Marks, November 22, 2013
On September 25, 2013, the Federal Trade Commission (FTC) and Department of Justice (DOJ) announced the issuance of a joint model waiver of confidentiality for individuals and companies to use in merger and civil non-merger matters involving concurrent review by the DOJ or FTC and non-U.S....
2013 California Employment Law Legislative Update: Things You Need to Know for 2014
Angela Diesch,Jennifer Holly,James M. Nelson, November 21, 2013
At Greenberg Traurig, we live our model “built for change” and apply it for the benefit of the businesses we serve. Our California Labor and Employment Practice appreciates that although California presents opportunity, it also presents a different set of employment risk propositions....
Appreciability Analysis: Does the Future of an EC Law Doctrine Hang in the Balance?
Hans Urlus,Emilie van Hasselt, November 21, 2013
Traditionally, EU competition law had two separate tests for determining whether an agreement is anti-competitive—the object test (the agreement’s purpose) and the effects test (its actual effect on competition). Thus, an agreement would be prohibited as anti-competitive either because...
EU Merger Control and Minority Shareholdings: Time to Plug the Enforcement Gap?
Simon Harms,Irving Scher, November 21, 2013
First created in 1989, the European Union (EU) merger control regime has now been around for the better part of a quarter of a century and is a well-established fact of life for businesses involved in large-scale M&A transactions. During that time, the European Commission (the Commission) has...
FINRA's New 'New' Discovery Guide: E-Discovery, Affirmations and Product Cases
Michael E. Pastore,Scott E. Rahn, November 21, 2013
On Sept. 16, 2013, the SEC approved amendments to the Financial Industry Regulatory Authority, Inc. (FINRA) Dispute Resolution Discovery Guide (Discovery Guide), which will become effective on Dec. 2, 2013 for all customer cases filed on or after the effective date. FINRA petitioned the Securities...
Follow-On Private Antitrust Damage Suits In the EU: The Netherlands Experience
Hans Urlus,Emilie van Hasselt, November 21, 2013
In the European Union (EU), unlike the United States, the availability of private antitrust actions has been extremely limited to date. Although the number of such actions has increased over the past decade, the institution of private damages antitrust actions remains underdeveloped. In the EU, the...
FDA Guidance for Industry and FDA Staff: Mobile Medical Applications
Chad D. Ehrenkranz,Nancy E. Taylor, November 19, 2013
On September 25, 2013, the Food and Drug Administration (the "FDA") released final guidance on the regulatory requirements regarding the introduction of mobile medical applications into the marketplace (the "Final Guidance"). The purpose of the Final Guidance and its Appendices...
CFPB Issues Advanced Notice of Proposed Rulemaking for the Debt Collection Industry
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 15, 2013
On November 6th, the Consumer Financial Bureau (the “CFPB” or the “Bureau”) kicked off its process for issuing long-awaited rules that will govern the practices of the debt collection industry. Section 1089 of the Dodd-Frank Act amended the Fair Debt Collection Practices...
CFPB Trial Disclosure Program Now Effective
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 15, 2013
On October 29th, the CFPB’s Notice of Policy regarding its Trial Disclosure Program was published in the Federal Register, thus making the Policy effective. Section 1032(e) of the Dodd-Frank Act permits consumer financial service providers to “conduct a trial program that is limited in...
New Tax in Mexico applicable to the Energy Sector
Nicolas Borda,Felipe Garcia Estrada, November 13, 2013
This GT Alert provides a general overview of the main tax amendments in the energy sector, specifically the amendments of the special tax on Production and Services Law (LIEPS) and of the Income Tax Law (LISR), approved by the Mexican Congress in November 2013, as part of the tax reform proposal...
Proofs of Claim: Attorney Signatures and the Risk of Loss of Privileges
Howard J. Steinberg, November 13, 2013
Preparing a proof of claim is a relatively easy task. As one court has noted, the proof of claim form is not elaborately detailed and may take only five minutes to complete. This simple task can result in extremely adverse consequences for a creditor and its counsel, if counsel, as opposed to...
New York City Proposes Expansion of Actions Exempt from CEQR
Steven C. Russo, November 11, 2013
The New York State Environmental Quality Review Act (SEQRA) requires actions that may have a significant adverse environmental impact to undergo review. The City Environmental Quality Review (CEQR) contains the City of New York’s procedures for complying with SEQRA. The State statute lists...
The Federal Trade Commission Again Targets 'Made-In-USA' Claims
Irving Scher, November 11, 2013
After a more than 10 year hiatus, the Federal Trade Commission (FTC) has again brought an enforcement action under its 1997 Policy Statement on “Made in USA” claims. The Policy Statement prohibits advertising a product as “Made in USA” (or equivalent statements) unless...
Senators Request Justification for the CFPB’s Indirect Auto Lending Bulletin
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 07, 2013
On October 30th, a bipartisan group of 22 Senators sent a letter to the CFPB challenging the basis for the Bureau’s Bulletin 2013-02 entitled “Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act.”
CFPB Releases Guide for “Managing Someone Else’s Money”
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 06, 2013
On October 29th, the CFPB’s Office of Older Americans published a series of four guidance booklets to help financial caregivers understand how to fulfill their responsibilities, how to avoid scams and financial exploitation, and where to go for help.
Cordray Speaks to Mortgage Bankers Association to Tout and Defend the Qualified Mortgage Rule
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, November 06, 2013
On October 28th, CFPB Director Richard Cordray spoke at the Mortgage Bankers Association Annual Convention in Washington, D.C. Cordray’s speech touted the CFPB’s “open, inclusive, [and] transparent decision making” in crafting its Qualified Mortgage or Ability-to-Repay rule.
Federal Financial Regulators Issue Diversity Policy Statement
Robert E. Bostrom,Peter L. Cockrell,Gil Rudolph,J. Scott Sheehan, November 05, 2013
On October 23rd, the OCC, the Federal Reserve Board, the FDIC, the NCUA, the SEC, and the CFPB issued a proposal for joint standards to assess the diversity policies and practices of their respective regulated entities. Section 342 of the Dodd-Frank Act requires each of these agencies to develop...
CFPB Issues Interim Final Rule and Bulletin Clarifying Mortgage Servicing Requirements
Robert E. Bostrom,Peter L. Cockrell,Brett M. Kitt,Gil Rudolph,J. Scott Sheehan, October 31, 2013
On October 15th, the CFPB issued an Interim Final Rule and CFPB Bulletin 2013-12. Both provide clarification regarding certain aspects of the CFPB’s recently published Mortgage Servicing Rule (MSR). The Bulletin provides guidance regarding: (1) policies and procedures for successors in...