If your client is considering creating a franchise system to develop and sell franchises in the United States, you will need to advise them on a variety of legal issues. Among other things, you should be familiar with and advise your client on the laws of any states where they intend to sell franchises, and with the Federal Trade Commission regulations relating to the sale of franchises. For example, under FTC regulations and statutes in thirteen states, your client will be required to provide prospective franchisees with a complete disclosure document, commonly referred to as a “Franchise Disclosure Document” or “FDD,” and contracts, including a franchise agreement, confidentiality, non-disclosure, and non-solicitation agreements. And under the laws of the thirteen states referenced above, your client will be required to register the FDD with state authorities. Your client may also have trademark issues and will need to structure its business to best protect its assets.
Presenters Michael Einbinder and Mackenzie Dimitri, from Einbinder & Dunn, LLP, discuss the most important aspects for practitioners to consider when advising new franchisor clients. Attendees will learn practical advice for guiding prospective franchisors through the process of franchising their business and the strict rules relating to the sale of franchises under the FTC and state law.
Michael Einbinder is a founding member of Einbinder & Dunn and has been practicing law since 1981. His experience encompasses commercial litigation with a broad range of legal and business skills. Throughout his 30 years of practice, he has handled complex commercial cases in state and federal courts representing businesses and industries throughout the country in cases involving, among other things, claims relating to breach of contract, fraud, misappropriation of trade secrets, interference with contractual relations, enforcement of non- competition agreements, real estate transactions, partnership and shareholder disputes as well as intellectual property matters. He has also appeared in various arbitration and mediation forums.
A substantial portion of his practice includes representation of start-up and established franchisors as well as multi-unit and single unit franchisees. Franchisors and franchisees are represented in a wide variety of industries, including restaurant, retail, hospitality, real estate, manufacturing, optical, recreation, business services, household and home improvement services, health care, education, child care and pet care. For franchisor clients, he has litigated and arbitrated all categories of disputes including trademark infringement claims, termination issues, enforcement of non-competition agreements, breaches of contracts and fraud claims. For franchisee clients, he has litigated an array of claims including those relating to franchise disclosure violations, franchise relationship laws, fraud, misuse of advertising funds, breaches of franchise agreements, non-competition issues and franchise terminations. His firm also handles litigation, arbitration, and mediation nationwide for both franchisors and franchisees (including associations).
Mr. Einbinder is an author in numerous publications, including contributing a chapter to the “Franchise Litigation Handbook” published by the ABA Forum on Franchising, co-authoring “A Franchisee’s Guide to Franchisor Bankruptcy” published in the Fall 2011 edition of the Franchise Law Journal and contributing a chapter in the ABA Forum Publication entitled “Covenants Against Competition in Franchise Agreements,” Third Edition, published in the Fall of 2012. Michael Einbinder has been listed among the top franchise lawyers by the Franchise Times since 2004 and is a frequent speaker on franchise issues at events hosted by the American Bar Association Forum on Franchising, the International Franchise Association Legal Symposium as well as the New York City Bar Association CLE program in which he has presented papers on franchise issues for other attorneys.
Mackenzie L. Dimitri is a litigator with general commercial and franchise-specific experience. Ms. Dimitri has represented business and franchise clients in the transportation, child care, entertainment, restaurant, hospitality, convenience store and real estate industries, in trials and other dispute resolution forums throughout the country. Ms. Dimitri has also successfully mediated and otherwise negotiated favorable settlements at various stages of litigation, and has a nuanced understanding of how each client’s business objectives relate to that client’s goals in any given lawsuit. In addition to her courtroom experience, Ms. Dimitri also drafts and negotiates commercial contracts, including franchise disclosure documents, and coordinates corporate organizational matters.
Ms. Dimitri is a committee member of the Young Lawyers’ Division of the American Bar Association (ABA) Forum on Franchising. In October 2017, Ms. Dimitri was asked by her colleagues at the ABA to speak at the 40th Annual Forum on Franchising in Palm Desert, California, on the topic of efficient breach and equitable remedies in litigation. In March 2017, Ms. Dimitri spoke with a panel of franchise attorneys for an ABA webinar about regulatory issues for franchisors. In May 2019, Ms. Dimitri gave a presentation entitled “A Franchisee’s Guide to Reading and Using the FDD” at the International Franchise Expo. Ms. Dimitri is a regularly contributing ‘blogger’ on E&D’s business litigation and franchise law blogs.
Ms. Dimitri is a regularly published author on litigation, franchise law, and business law topics. Her notable publications include:
• Enforcing the Bargain or Buying Your Way Out? The Right to Specific Performance in Franchise Agreements versus the Concept of Efficient Breach, American Bar Association (October 2017)
• Defense for Nondisclosure of Liability for Lost Profits, The Franchise Lawyer (July 2016)
• What You Need to Know Before Buying a Franchise, Franchising USA Magazine (July 2014)
• How Much Money Will I Make From my Franchise? Franchising USA Magazine (March 2014)
• Pending Franchise Litigation - What Franchisors and Franchisees Need to Know, Franchising USA Magazine (February 2014)
• Franchising Your Business, Franchising USA Magazine (December 2013)
• The Franchise Deskbook, Third Edition, New York Chapter, ABA Forum on Franchising (July 2019)