Barry Kurtz

Barry Kurtz

Lewitt Hackman

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FRANCHISEE 101: What to Do About Franchisor’s Harmful New Policies

Franchisees aren't always excited when their franchisor introduces a new policy. But if a new policy overreaches and might doom a franchisee's business, can it be stopped before it starts?...more

5/26/2016 - Breach of Contract Cell Phones Franchise Agreements Franchisee Franchises Franchisors Irreparable Harm Performance Incentives Preliminary Injunctions Royalties Sales Commissions Unfair or Deceptive Trade Practices Unjust Enrichment

FRANCHISEE 101: Understanding Merger/Integration Clauses

Before a final agreement is signed there are often oral discussions, negotiations, and representations. There may be written memorandums of understanding or letters of intent. But, when the final agreement has a "merger" or...more

5/3/2016 - Chrysler Franchisee Franchises Fraud Integration Clauses Merger Clause Sales & Distribution Agreements

FRANCHISOR 101: Wins, Losses & Lessons in Joint Employer Liability

As joint employer liability continues to develop, plaintiffs seeking deep pockets continue to claim, with some success, that franchisors are joint employers, responsible for actions of their franchisees' employees. In April,...more

5/2/2016 - Control Test Delivery Drivers Dominos Employment Discrimination Franchisors Independent Contractors Joint Employers Vicarious Liability Wrongful Death

FRANCHISEE 101: Purposes and Limits of Non-Compete Clauses

Many franchise agreements have "non-compete clauses", which state that after termination or expiration of the franchise agreement, the ex-franchisee may not operate a business that is similar to or that would compete with the...more

3/31/2016 - Canada Franchise Agreements Franchisee Franchisors Non-Compete Agreements

FRANCHISOR 101: Protecting Interests in Preliminary Injunctions

A franchisor in a termination dispute with a franchisee may request a preliminary injunction to force the franchisee to immediately stop operating the franchised business and using the franchisor's trademarks and intellectual...more

3/30/2016 - Contract Termination Franchises Franchisors Preliminary Injunctions Trademark Infringement

FRANCHISOR 101: The Importance of Arbitration Provisions

Though some of the more important terms may appear early in a franchise agreement, some key terms placed near the end - the portion of the agreement that is often called "boilerplate" - may determine who wins or loses a legal...more

2/26/2016 - Arbitration Agreements Contract Terms Franchise Agreements Franchisors Motion to Compel

FRANCHISEE 101: Relying on Franchisor’s Profit Projections

Most experienced franchisors know better than to make claims about profits franchisees can expect when those claims do not match the information in the franchisor's Franchise Disclosure Document. However, if a franchisor or...more

2/25/2016 - Disclaimers Franchise Agreements Franchise Disclosure Document Franchisee Fraud Misrepresentation

FRANCHISEE 101: California Expands Protections for Franchisees

California Assembly Bill 525, passed into law in 2015 applies to franchise agreements entered into or renewed on or after January 1, 2016. It expands and provides new protections for franchisees. Franchisees subject to...more

2/1/2016 - Franchise Agreements Franchisee New Legislation

FRANCHISOR 101: Department of Labor Weighs in on Joint Employer Liability

Recently, some plaintiffs - employees of franchisees - have tried to hold franchisors responsible for unpaid overtime and other claimed violations by franchisees they work for. They use the theory that franchisors are their...more

2/1/2016 - DOL Franchisors Joint Employers Unpaid Overtime Wage and Hour

FRANCHISOR 101: 10 Ways Franchisors Can Reduce Vicarious Liability Risks

The U.S. Department of Labor says McDonald's is liable for actions of franchisees. In the last three months a California federal court said McDonald's could be liable for a franchisee's alleged failure to pay overtime and...more

12/30/2015 - Employer Liability Issues Franchise Agreements Franchisors Joint Employers McDonalds Rest and Meal Break Unpaid Overtime Vicarious Liability

FRANCHISEE 101: Pay Attention to Contractual Statutes of Limitation

Many franchise agreements include a contractual limitation period or time limit when parties can bring a claim for relief. Though the franchise agreement is often written by and for the franchisor, these limitations can help...more

12/29/2015 - Contract Terms Franchise Agreements Franchisee Franchisors Motion to Dismiss Statute of Limitations

FRANCHISOR 101: Catch-all Disclaimers No Substitute for Untrained Salespeople

How strong are "non-reliance disclaimers" or "integration" or "merger" provisions in franchise agreements at protecting a franchisor when it really matters? Only so much, a New York court recently decided....more

10/30/2015 - Catch-All Disclaimers Disclosure Requirements Franchise Disclosure Document Franchise Sales Act Franchisee Franchisors Fraudulent Inducement Merger Agreements Mergers Non-Reliance Clauses Salespersons

FRANCHISEE 101: "Two Wrongs Don't Make a Right"

At one time or another, many people have occasion to be renters who feel mistreated by a landlord. This may be due to delays in repairs, responses, or just turning on the heat. A typical reaction is the temptation to...more

10/29/2015 - Commercial Leases Dunkin' Donuts Franchise Agreements Franchise Fees Franchisee Franchisors Injunctions Renovations Site Plans Trademark Infringement Trademarks

FRANCHISOR 101: Franchise Systems Can Fight Online Negativity

One of today's challenges faced by franchisors and franchise systems is negative remarks posted online by a customer, ex-employee, or even a dissatisfied franchisee. Negative comments appear in sites created specifically to...more

10/2/2015 - Cease and Desist Defamation DMCA Facebook First Amendment Franchises Online Reviews Personal Brands Social Media Takedown Notices Terms and Conditions Twitter Yelp

FRANCHISEE 101: Bankruptcy Discharges Franchise Law Claims

A recent Bankruptcy Appellate Panel decision is a reminder of both a benefit of bankruptcy, in appropriate circumstances, and the need to respect the bankruptcy discharge a party obtains in the process. Mr. Lee was...more

9/30/2015 - Commercial Bankruptcy Franchise Agreements Franchises Fraud Sanctions

FRANCHISEE 101: Franchisee Keeps Case in Home Court Despite Forum Selection Clause

Rob & Bud's Pizza ("R&B") is a Papa Murphy's franchisee and owns and operates multiple Papa Murphy's Take 'n' Bake Pizza restaurants in Arkansas, Missouri and Kansas. In April 2014, R&B and other Papa Murphy's franchisees...more

8/20/2015 - Forum Selection Franchisee Franchises Fraudulent Inducement Misrepresentation Papa Murphys Public Policy Resorts & Restaurants Transfer of Venue

FRANCHISOR 101: Florida Franchisor Awarded Lost Future Profits

An arbitration panel in Florida found that a disaster recovery and remediation business franchisee breached his agreement with John Woods, his franchisor, by terminating the agreement 13 years before expiration of the 20-year...more

8/19/2015 - Arbitration Breach of Contract Damages Franchise Agreements Franchisee Lost Future Profits

FRANCHISEE 101: Hawaiian Distributor May Be a Franchisee

A long-standing distributor and licensee of Harley-Davidson motorcycles in Hawaii was entitled to proceed on its claim that the business relationship with Harley-Davidson Motor Company, Inc. was a "franchise" under Hawaii's...more

8/3/2015 - Distributors Franchise Fees Franchisee Franchises Harley-Davidson License Agreements Sales & Distribution Agreements Trademarks

FRANCHISOR 101: Contractual Disclaimers Save the Day

A federal court in Florida has ruled that a disclaimer of representations contained in the franchise agreement between a childcare business franchisor and its franchisees barred claims against the franchisor for alleged...more

8/1/2015 - Disclaimers Franchise Agreements Franchisee Investment Funds Misrepresentation

Crossing the Line: Don't Let Business Clients Become Accidental Franchisors

Too often, expansion-minded business owners choose to offer trademarked products or services through purported licensing agreements or distribution or dealership arrangements only to discover, well into the game, that what...more

7/7/2015 - Department of Corporations Distributors Franchise Agreements Franchisors License Agreements Rescission Trademark Holders Trademarks

FRANCHISEE 101: Pay Now or Pay Later – Liquidated Damages & Future Royalties

Super 8 Worldwide, Inc. v. Anu, Inc. serves as a reminder to franchisees that, in general, courts will hold franchisees and their guarantors liable to their franchisors for losses suffered when franchisees abandon their...more

6/29/2015 - Breach of Contract Franchise Agreements Franchisee Franchises Franchisors

FRANCHISOR 101: Disclosure Violations & Running the Risks of Rescission

Despite a district court's recent decision in Braatz, LLC v. Red Mango FC, LLC, franchisors are well advised to comply with applicable disclosure requirements to a "T" to ensure new franchisees will not have an ongoing right...more

6/26/2015 - Disclosure Requirements Franchise Agreements Franchisee Franchises Rescission

FRANCHISEE 101: 7-Eleven Ordered to Disclose Metadata

A federal court has ordered 7-Eleven to disclose its metadata in three franchisees' claims that they were targeted for termination for financial, political and racially discriminatory reasons. Metadata is deep down "data...more

5/29/2015 - 7-Eleven Discovery Discrimination e-Discovery Franchisee Litigation Fees & Costs Metadata Termination Undue Hardship

FRANCHISOR 101: Freshii Not Joint Employer

The National Labor Relations Board ("NLRB") recently published a memo finding that Canadian fast-casual restaurant franchisor Freshii is not a joint employer of its franchisee's employees. The ruling concerns unfair labor...more

5/28/2015 - Canada Franchise Agreements Franchisors Joint Employers NLRB Unions Vicarious Liability

FRANCHISEE 101: Forum Selection Clause Valid Despite MN Franchise Act

A federal court in New Jersey upheld a franchise agreement's forum selection clause in favor of hotel franchisor Ramada Worldwide Inc. and denied a Minnesota hotel franchisee's motion to dismiss the complaint, or...more

5/4/2015 - Forum Selection Franchise Agreements Hotels Motion to Dismiss

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