Practice Areas:

- Business Transactions / Corporate
- Dispute Resolution
- FTC Rule Conversion & Document Refinement
- Trademark Registration and Licensing
- Training Programs
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Business Transactions / Corporate
The firm regularly represents clients in corporate, partnership and other business relationship matters. We have developed particular expertise in corporate divorces and resolving business disputes among partners. In many cases, we have negotiated contractual provisions to protect partners’ expectations, and in some cases to compel a buyout if those expectations are not met. In other cases, we have helped minority and equal partners maximize the value of their investment by working through acrimonious situations and creating bylaws and agreements which make future actions more predictable. In addition, for established businesses or start-ups, we prepare shareholders’ agreements, operating agreements, employment agreements and management agreements between the entity and its respective owner or employee constituencies.

In addition, we represent clients in negotiating suitable lending relationships with lenders, investors or existing partners to create predictable long-term financing for the company to use for expansion.

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Dispute Resolution
We represent clients through the litigated, arbitrated or mediated enforcement of their contractual undertakings. In addition to litigating matters in various state and federal courts around the country, we are particularly adept in using arbitration and mediation as offensive mechanisms to achieve an early resolution of disputes. In recognizing that all business disputes have a maximum value, we give advice calculated to bring about or compel a prompt resolution, without the need for an expensive trial to resolve the issues. Our lawyers have business backgrounds, and therefore give advice calculated to reaching business-like resolutions, rather then maximizing the conflict or legal undertaking in connection with resolving the underlying claim.

Franchise & Distribution
Our experience in drafting and litigating the terms of licensing agreements gives our attorneys a unique perspective on contract negotiation. All franchise relationships are predicated on mutuality and fairness between the contracting parties. All parties rely on the enforcement of contractual provisions intended to ensure uniform quality among system franchisees. The key to contract negotiation lies in understanding which provisions can and cannot be negotiated without compromising the integrity of the franchise system.

Day to Day Advice
We are a resource for our clients. As a result of our focus on franchise, distribution and licensing matters, we have a 15 year database of forms and agreements. In most cases, our attorneys can give instructive and experienced advice, in an almost immediate exchange. As our engagements progress, we garner an inside knowledge of our clients, understand their methods of doing business and are able to provide timely and well thought out advice.

Terminations
When a franchisee is not in compliance with his or her obligations under the franchise agreement, the decision to terminate, along with a thorough analysis of all pre-termination options, is critical. A termination, like any decision to end a long-term relationship, has many implications. In most cases, there are options short of termination, which, under the right circumstances, may motivate a franchisee to cure, and thereby save the relationship and protect the cash flow associated with the unit. In-term actions seeking damages for breach of the agreement along with attorneys’ fees are often an effective tool to garner compliance.

We have worked through literally hundreds of franchise disputes, and have a track record of achieving prompt resolutions of even the most acrimonious disputes.

Real Estate
Our attorneys have a great deal of experience in negotiating and concluding commercial real estate transactions. We counsel clients in obtaining contractual changes which protect their interests in a transaction. We also assist clients in obtaining the necessary financing and reviewing the finance documents related to the purchase. We also assist clients in making the necessary inspections prior to becoming contractually bound to purchase the property.

Bankruptcy
In a challenging economy, it is not unusual for certain franchisees, for a variety of reasons, to become insolvent. Generally, insolvency does not happen over night, rather, a situation deteriorates over time. We provide advice to our clients with respect to working through challenging financial circumstances, with the goal of preventing the assets of the franchise from becoming part of the debtor’s bankruptcy estate. In cases where bankruptcy has already been filed, we assist franchisors in garnering almost immediate post-petition contractual compliance, and obtain orders from the bankruptcy court to protect the franchisor’s interests. In other contexts, we have represented franchisors and area developers in acquiring assets through bankruptcy, free and clear of all liens, claims and encumbrances.

Regulatory Compliance
We assist franchisors in complying with the obligations under the FTC Rule and applicable state laws governing the sale of franchises in those states which have registration statutes.

In the ordinary course, we draft franchise agreements and uniform franchise offering circulars for flat fees, which are payable over the course of the engagement. By using predictable flat fees, businesses can more effectively budget the funds necessary to roll out a franchise concept.

For established franchisors, we review existing franchise documents for regulatory compliance and other business or operational issues, and provide detailed comments or revisions with respect to existing documents.

For many clients, we perform national and state-specific registrations of their franchise programs. For these projects, we negotiate a flat fee based on filing status (initial or renewal), and the particular states in which the opportunity will be registered. We have a four-person registration and disclosure team lead by two attorneys who see to the timely updating and submission of registration documents. In addition, we also prepare and file Salesmen Disclosure Forms and Broker Registration Forms as necessary. We also prepare documents which are compliant for use in Canada in both the provinces of Alberta and Ontario.

International
As many of our clients expand beyond the territorial confines of the United States, we provide advice concerning their expansion abroad. We have relationships with various attorneys in other countries who assist us in providing the local perspective on expansion within a particular country.

Mergers and Acquisitions
Clients engage us to provide advice on the best method and manner for acquiring or selling assets. The firm maintains a detailed library of forms of agreement for use in connection with acquiring assets, real property or businesses. We have experience in all aspects of these transactions, including intellectual property, real estate, licensing and other relevant matters.

Franchise Your Business
Over the last 14 years, the firm and its principals have gained substantial expertise in helping companies with strong unit economics and good concepts use franchising as a means of exploiting market opportunities. Franchising has emerged as an alternative source to growth capital, where franchisees are responsible for financing the costs associated with unit growth. Many companies look to franchising as a means of developing the operational talent, coupled with the vested interest in making a unit successful, as an alternative to bearing the economic cost in financing the construction and developing the managerial talent necessary to achieve success. The firm has worked with multiple startup franchisors in the retail and service businesses, and has considerable expertise in identifying those structures which work and which do not. Please contact us for a free consultation about whether franchising is an appropriate vehicle for exploiting your business.

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FTC CONVERSION PROGRAM.
The new Federal Trade Commission ("FTC") Rule on Franchising (the "New FTC RULE"), approved on January 22, 2007, went into effect on a voluntary basis on July 1, 2007 and becomes mandatory on July 1, 2008. While the New FTC Rule is modeled on the UFOC Guidelines, the Franchise Disclosure Document, as it is now called, included expanded parent company disclosure; disclosure of franchisor initiated litigation, and substantially revised Item 20 charts reflecting additional historical information relating to each franchise unit.

In an effort to induce you to commit to the conversion process early and to allow us to more effectively engage our resources, we are offering promotional pricing for the conversion. Most conversions have ranged in cost between $2,500 and $5,000 depending on the complexity of the franchisor's corporate structure with respect to parents and cross-managers, the number of brands, types of offer, number of units and earnings claims (now known as Financial Performance Representations).

We have prepared an internal firm publication summarizing the significant changes to the FTC Rule, which can be found under the News section of this website.

FOCUS REVIEW. Stay on course with our comprehensive FOCUS Review. For only $5,000, we review your existing single unit franchise agreement to confirm the presence of certain critical or recommended contract terms and your current disclosure document to ensure compliance with all applicable state and federal regulations. We then compare the economic and business terms of your offer to other key competitors that you help us identify. We estimate our fees to implement the changes you authorize in our subsequent discussions, along with those necessary to comply with the New FTC Rule
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Trademark Registration and Licensing
The firm has an active trademark registration and licensing practice. We regularly search proposed business names, and register them locally and nationally.

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Training Programs
Franchise Sales Desk Reference Training Manual.
Last year we prepared a comprehensive training manual for franchisor or sales personnel. In it we discuss regulatory compliance, including compliance with the FTC Rule and state statutes governing the sale of franchises. The Franchise Sales Desk Reference has become a valuable resource for many of the firm’s clients.

Consider the timing and scope of the sales compliance training offered to your employees, and for that matter, any area developers who have resale rights and responsibilities. Ask yourself whether that training is adequate in light of our incredibly litigious society, and the fact that a vast majority of claims asserted by franchisees against franchisors include claims of (1) improper disclosure; and (2) improper earnings claims.

With respect to the latter, the most recognized franchisee litigators claim that, in the absence of an earnings claim, they can find some affirmative statement or admission that could arguably give rise to a claim, given that federal and state laws have created an incredibly expansive definition of conduct which could constitute an earnings claim. Moreover, most improper disclosure claims are predicated on a failure to give the franchisee an updated document reflecting material changes, updating earnings claim information where required, a failure to use the properly registered document in registration states, and failing to document the making of timely disclosures, the lack of any earnings claims and any negotiated changes.

Given the recurring nature of these claims, we began offering our franchisor clients franchise sales compliance seminars, onsite or locally. We use a proprietary comprehensive workbook known as the Franchise Sales Desk Reference, which includes modules on registration and disclosure, earnings claims, advertising, compliance certifications, negotiated changes, misrepresentation and omissions (the "Program"). We have also developed a optional pre-test designed to determine a persons level of knowledge going into the Program and a test at the conclusion of the Program to determine the proficiency level at the conclusion of the Program. Essentially, we can tailor a training program to your specific needs, based on your availability, in a manner which maximizes the number of participants from your organization who can attend. For example, if you do not use an earnings claim, we will consult with you with respect to specific measures of performance or an alternative means of casting your data, in an effort to cast your opportunity in the most favorable light. If you use an earnings claim, we can assist you in defining the information which must be included in the claim and the permissible uses of the claim.

At your request, we can also create a training program which you can offer in conjunction with your annual convention for your inside sales staff, your master franchisees or area developers with sales responsibilities.

Our clients have found the Franchise Sales Desk Reference very helpful in educating sales personnel and avoiding litigation. Based on the response of our existing clients, we have determined to offer the program to others on the same basis. We expect that the cost for the Program will vary depending on the length of the Program, the different categories of attendees and applicable travel and lodging expenses.

As some of our clients have requested additional training in administrative functions and franchise sales techniques, we also offer options for this additional training as a bundled training program at an additional cost.

Telephone: 215-825-3100

© 2004/05/06/07/08 FISHER  ZUCKER, LLC Franchise Attorney At Law / Business Lawyers
21 South 21st Street, Philadelphia, PA 19103 - 402 Park Boulevard,  Cherry Hill, NJ 08002 - 777 Gloucester Street, Suite 411, Brunswick, GA 31520