Guide · Franchise
Franchise Law: A Comprehensive Guide to the FDD, Registration, and the Franchise Relationship
15 U.S.C. §§ 2801
- Type
- Guide
- Jurisdiction
- National
- Date
- 2023-10-16
- Topic
- Franchise
Franchising is defined by three deceptively simple elements — a trademark license, significant control or assistance, and a required payment — and businesses fall into the definition by accident with alarming regularity, because none of the three requires the word "franchise" to appear anywhere. This guide explains the FTC Franchise Rule (16 C.F.R. Part 436) and its pre-sale disclosure regime, walks all 23 Items of the Franchise Disclosure Document and what each is really for, and treats Item 19 financial performance representations and the rule against unsubstantiated earnings claims at length. It then turns to the state layer that does most of the real work: the registration and disclosure states, the business-opportunity statutes, and the franchise relationship laws that override contrary contract terms by requiring good cause, notice, and an opportunity to cure before termination or nonrenewal. It covers the franchise agreement itself — term, territory, fees, system standards, advertising funds, transfers, and renewal — and the doctrines that decide the hard cases: naked licensing under the Lanham Act, encroachment and the implied covenant of good faith, tying and antitrust, joint-employer exposure for a franchisee's workers, post-term covenants, and the enforceability of arbitration and choice-of-law clauses against state anti-waiver statutes. Because there is no private right of action under the FTC Rule, state law is where franchisees actually win — and state law varies enormously. Throughout, a running example follows a restaurant concept that became a franchise without meaning to and made an earnings claim it could not substantiate.
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