Franchising: Yesterday, Today & Tomorrow

World of FranchisingAs I often do on the weekends, I was searching through my personal library seeking out a book or two that might provide me some inspiration for an article or report, and this weekend, I came across a business book that was published back in 1979. The book, “Free Yourself in a Business of Your Own” by Byron Lane, caught my eye for reasons I cannot really explain. Obviously, I’ve had it in my possession for many years, yet, never opened it again since I purchased it for $1.29 at Target. It must have been a clearance book as the cover price was $5.95. Anyway, I can’t even recall seeing it when I routinely search through my library. It’s like it suddenly jumped out front and center and said, “Hey, look here!”

Well, I decided to look through the book because the back cover stated, “This book is about freedom. Freedom from an 8 to 5 regimen. Freedom from dehumanizing democracies. Freedom from job boredom. Freedom from the lock-step culture. Freedom to do your work your way.” Hmmm… not much seems to have changed although lock-step culture is not one I’ve heard of before.

Right away, my thoughts turned to franchising and I began to think about what franchising was like back in 1979. Fortunately, I didn’t have to think very hard, as to my surprise, was a chapter on franchising! It’s placement was to present franchising strictly as an alternative to other forms of business ownership, and in a book with 174 pages, the franchising chapter comprised all of 3 pages. Yes, 3 pages!

Within these pages were a series of bullet points that I found very interesting and it made me wonder how much franchising had actually changed since 1979, and if the changes have improved franchising today. Read the bullet points below and you be the judge.

– While there are no federal laws governing franchising, most states have franchise laws. Get a copy of the law in your state and read it for degree of stringency and coverage. If it is a tough law and a franchising company qualifies to do business in your state, you have one measure of security.

– Don’t believe that acceptance of you by a franchiser means they have evaluated your ability to get the job done. Some franchisers would select a corpse if rigor mortis had not set in and if it clutched in its hand a certified check for the amount of the franchise fee. Do your own introspection and decide if you can handle the franchise.

– Do not deal with profit projections or average profits. Insist on actual financial statements from a cross-section of franchisees. Then, evaluate your expected return on investment.

– Get the financial statement of the parent company and evaluate its ability to provide the services it promises.

– Read the franchise contract. It should be simple, frank, and fair, with complete disclosure, not an instrument of repression. After you think it through with your head, listen to your gut and determine if the contract fits you

– Finally, and perhaps most important of all, is evaluation of the franchiser’s management team. You should do this from two aspects – their management ability and their humanness. If the management does not measure up to good corporate standards, you will not get the profits you seek. You may turn out okay, but they can bring you down.

 

Discussion About IFA’s 50th Anniversary Exemplifies What Franchising is Really About!

Recently, on the International Franchise Association group on LinkedIn, I posted the following discussion, “The 50th Annual IFA Convention in San Antonio is less than three weeks away. Will you be attending? If so, what do you hope to bring back to your organization? If not, is there a specific reason?”

Many franchise professionals responded and explained why they would be attending the event. Most of the responses centered around sharing ideas and building relationships. Sure, some mentioned exploring new opportunities with potential and existing clients, but we are all in business to make money, right? But in addition to generating new business, almost all that responded were looking to interact with fellow franchise professionals. Hopefully, long-term relationships will be established over time and the franchise community will continue to evolve and strengthen.

One of the responses was from franchise veteran, Michael Seid. He stated that he had been going to IFA conventions for 25 years. I really admired the fact that he had attended these events for over a quarter of a century! Think about all that has changed in 25 years. Just think about the technological changes that have occurred during this period of time. I mean no one was walking around the IFA event in 1985 with a cell phone, right? How about a laptop? Could anyone have even imagined the internet and email? Heck, fax machines were barely around in 1985, albeit the ones that were used that ridiculous paper that always seemed to roll onto to the floor and under a desk… just out of reach.

Yes, times sure have changed, but the love and passion for franchising apparently has not. It’s just been passed onto people like Michael Seid. By virtue of his responses to my original discussion, and subsequent question, “I’m curious, what was the convention like back in, what, 1985?”, Michael takes us down memory lane and does so in such a dignified manner and with genuine sincerity, that he really seemed to pay it forward. For the benefit of all within the franchise community, I am honored to share his response below.

“1985 was in Miami if I recall and that was not my first so it may be longer than [25 years]. If I recall the attendance at my first convention was measured in the hundreds – not like we have now in the thousands. It was a much different association – we have come a long way with programming and content and member services. A lot of the founders were still around. I just got a great biography of Joe Francis from The Barbers who was very active years ago. If you did not know Joe you missed a great man – really a fine individual who went out of his way to give guidance to anyone who asked for his help. His son is still very active in the IFA. It’s a great quick read if you have not seen the book. Joe is gone 15 or more years.

The culture of the IFA has not changed. You can still corner an experienced member as a new comer and they seem always to be thrilled to mentor and give advice. I remember asking Fred DeLuca a question when I was new in the association and he spent two or more hours giving me his advice. That has not changed at all as most members today will do the same for a new comer.

Looking back at what has changed – No franchisees back then. That was a major difference Steve Lynn and Jim Bugg made that happen). No PAC to speak of (Sid Feltenstein changed that). No franchise appreciation day (Bernie Browning‘s idea). No Education Foundation only an education committee (I think Sid Feltenstein is also responsible for that). No thought of diversity or minorities in franchising (Ron Harrison). No VetFran (Don Dwyer‘s idea during the first gulf war). No Second Tuesdays (if it was not Lane Fisher and Scott Lehr then they were responsible for making it grow as it has). Who would have thought we would be looking at using franchising to provide products and services to the poor in the emerging markets and yet today we have the Social Sector Franchising task force. No CFE (John Reynolds). No one would have thought of a franchisee ever being chairman (Steve Siegel was the first and Doc Cohen the second). No franchisees or suppliers forum leadership on the board (Joyce Mazero if I recall was the first Counsel of Suppliers chair on the board and Jeff Kolton was the second – although we had no vote then. Supplier membership on the Executive Committee did not exist (I had that privilege when I was supplier chair to be the first because of Gary Charlwood).

I remember the IFA chair years ago saying that he would never let a mattress salesman (his word for suppliers) ever being on the board. Suppliers got a board vote when Gary Charlwood was chairman). No suppliers elected to the board in their own name for six years (I was privileged to be the first and Lane Fisher the second). No women as chairman (Joanne Shaw was the first and Dina Dwyer the second). No major investment in research (Mike Isakson). I think Jim Amos when he was chair actually creating the first IFA long range strategic plan. When Don DeBolt became president of the IFA we were near bankrupt and look at the great financial condition we are in now (Russ Frith as Treasurer did an amazing job). We did a lousy job in lobbying years ago and now we have a huge public affairs team. We dealt with Coble and LaFalce holding hearings on relationship laws in Congress and those days are gone.

Yes a lot has changed over the years. We owe a debt to a lot of some very smart folks who were in the leadership back then who kept adding great elements to make the association better. Along the way we had some who were less than stellar also but for the most part, we have been fortunate by those who chose to be in the leadership. Lets not forget the amazing job Debbie Moss has done in growing and professionalizing the convention supported by a really professional team of staff.

Still with all of the change, growth and the better financial condition of the association, the culture of the IFA has not really changed. I expect that many of the members/leaders from years ago who have not been active in the IFA will be at the 50th anniversary. Some of them will be surprised and pleased how far we have come.”


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Introduction to International Franchising

world-map-photo1The following article was submitted by Guest Author, Kathryn Rookes. Kathryn is an experienced franchise attorney and a member of FSB Legal, a virtual law firm. She is one of the very few franchise attorneys in the United States with experience in a government regulatory practice (Maryland Division of Securities), private practice, and as in-house counsel. With this diversity of experience, Kathryn understands the issues that franchisors face on a daily basis.

Introduction to International Franchising
as submitted by Kathryn Rookes, Attorney, FSB Legal

Introduction

Many franchisors perceive international expansion of their franchise concepts to be a great way to generate cash on a short term basis and do not fully appreciate the long‐term commitment that successful international franchising requires. The level of commitment and resources required to expand internationally is often greater than that required for domestic expansion. This article provides a brief overview of the requirements for international franchising and identifies a typical international deal flow process. We also have included several resources that contain additional information for further research.

Evaluate Your Resources

When making the decision to go international, you must consider the additional resources that you will need to successfully expand and support your new international franchisees. Areas of increased costs to consider include telephone and postage, travel, marketing, trademark registration, preparing international franchise agreements and disclosures, costs of goods due to export/import controls, foreign taxes, translations and document registration, to name a few.

Determine What You Will Offer

International deals are normally structured in one of three ways. First are single unit franchise sales (sometimes called direct franchising), much like many systems sell in the United States. The next option is area development rights, in which you identify 1 developer who opens multiple units of its own. The third common option is master franchising (also called sub‐franchising). In this method you identify 1 developer that has the right to open its own units, and also the right to sell additional units to other franchisees. In addition to these three methods, some international arrangements are structured as joint ventures, in which you are an equity partner with your foreign franchisee. Each method has its own risks and rewards, so you must evaluate your goals and your resources to determine which method best suits your needs.

Finding Good Research

Your research on each opportunity generally consists of two areas, research on the territory and research on your prospective franchisees. The internet provides a wealth of information on the territory. The United States Department of Commerce is a good starting point as is its included agency, the International Trade Administration. The trade promotion unit of the International Trade Association, the United States Commercial Service also provides significant help by providing market research, worldwide trade events for promoting your offering, assistance in identifying prospective franchisees, manufacturers and distributors, and individualized counseling on going international.

For research on your prospective franchisees, you are well served to retain the services of one of the many companies that provide due diligence or investigative type services. Research on people and companies in other countries is a very tricky business, as the stability, accuracy and adequacy of information in other areas of the world is often lacking. These companies will be able to evaluate the trustworthiness of the information they obtain, and can educate you on the limitations of the information so that you can make your own decisions on the risks you are assuming by choosing any particular franchisee.

Establishing a Deal Flow Process

The deal flow process for international deals will usually be significantly different from your domestic deal flow process and will necessarily require more time and resources for each deal. We generally recommend the following steps to ensure compliance with Unites States’ and the foreign country’s local law.

1. Determine whether there are any legal or practical barriers for your target country. Legal barriers include the U.S. government’s trade embargos and terrorism sanctions, in which U.S. businesses are prohibited from conducting business in certain countries. You may find this information primarily at the United States Department of the Treasury, Office of Foreign Asset Control website. The primary restrictions involve, as of January 2009, Balkans, Belarus, Burma, Cote d’Ivoire (Ivory Coast), Cuba, Democratic Republic of the Congo, Iran, Iraq, former Liberian Regime of Charles Taylor, North Korea, Sudan, Syria and Zimbabwe. Practical barriers (which also can be legal in nature) might include currency export restrictions (you won’t be able to get paid), prohibitions on foreign investment and/or ownership (you’re not allowed to invest there), lack of governmental infrastructure (you can’t register your trademarks or protect your intellectual property, trade secrets or contract interests due to lack of a stable court system), competition (both laws and actual), taxes (you can’t afford), restrictions on transfer (can’t stop your franchisee from selling out), economic conditions (won’t support your business model) and other such items.
2. Once you have determined that there is no barrier, you should determine whether there is a franchise disclosure and/or registration law in the target country. If there is, you should retain local counsel immediately to draft the necessary disclosure and handle the registration for you. We are happy to assist you with this process.
3. Identify your prospective franchisee and begin your background check on the prospect.
4. Negotiate and document a Letter of Intent that contains the material terms of the new deal. You will normally require a deposit against the initial development fee on the signing of the LOI.
5. Retain local counsel to review your proposed form of agreement to revise the agreement to ensure that it complies with all applicable local laws.
6. Negotiate with your prospective franchisee on any changes to your form of agreement. Once all terms are negotiated, you will finalize the agreement and proceed with signing.
7. Once your agreement is fully signed, you will want to proceed with registering your trademarks in the country, if you don’t already have the marks registered. If you have a large budget for your international expansion, you should ideally move this step up as early as you can afford, even up to step 2 if possible.
8. Once all of the above is accomplished, the real work begins. You now need to arrange for training, import of products or ingredients, site selection assistance, site development assistance, marketing assistance, and all of the other support services that franchisors normally provide.

Summary

With proper planning, international expansion of your franchise system can be an exciting new challenge that brings you many rewards. At FSB Legal, our attorneys are experienced in international franchising and have completed deals in over 35 countries. We are happy to help you begin this journey.