Franchise fraud
Encyclopedia
Franchise fraud is defined by the United States
Federal Bureau of Investigation
as a pyramid scheme
.
In the United States, franchising
is regulated by a complex web of franchise rules and franchising regulations consisting of the Federal Trade Commission
Franchise Rule, state laws, and industry guidelines.
The most recent version of the FTC Franchise Rule was in 2007, is printed in .
The FTC franchise rule specifies what information a franchisor must disclose to a prospective franchise business as a franchise opportunity in a document named the Franchise Disclosure Document (FDD).
, confidentiality agreement, or a gag order
. The gag order allows franchise misrepresentation by preventing prospective new franchisees learning important details about the churning franchise. Unfortunately, the Federal Trade Commission Rule and the State Franchise Disclosure Documents that govern the sale of franchises appear to enable franchisors to withhold negative facts concerning the performance of the franchised business plan from new buyers of franchises and to disclaim that the franchisors have promised anything in the way of success and profits in the written disclosure document and the binding, and generally non-negotiated, franchise agreement. The sellers of franchised business plans, the franchisors, themselves, appear to have no obligation under current rules and regulations to disclose negative system UNIT performance statistics to new buyers of the franchised business plans who then unknowingly purchase franchises that have demonstrated low or no profitability and high failure rates of "founding" franchisees.
Uniquely, franchisors, themselves, under the FTC Rule and the State Franchise Disclosure Documents appear not to have to disclose system UNIT Performance Statistics in their possession to new buyers, and new buyers of franchises must do their due diligence with current and ex-franchisees. It should be noted that current and ex-franchisees of systems have no duty under the law to disclose information about their businesses to prospective franchisees.
In the 2007 Franchise Rule, in the Federal Register from pages 15505 to 15506, comments from former franchisees were listed concerning confidentiality agreements:
By having former franchisees under a gag order, franchisors that practice business franchise fraud or franchise churning "inhibit prospective franchisees from learning the truth about the franchising opportunity as they conduct their due diligence investigation of a franchise offer." (page 15505 of the Federal Register
Franchise Rule)
Part 1 lists the definitions of the California Franchise code.
Part 2 is the Regulation Of The Sale Of Franchises. There are three chapters, 1) Exemptions, 2) Disclosures, and 3) General Provisions.
Under chapter 2, section 31125 the following exists
The proposed modification is in connection with the resolution of a bona fide dispute between the franchisor and the franchisee or the resolution of a claimed or actual franchisee or franchisor default, and the modification is not applied on a franchise systemwide basis at or about the time the modification is executed. A modification shall not be deemed to be made on a franchise systemwide basis if it is offered on a voluntary basis to fewer than 25 percent of the franchisor's California franchises within any 12-month period.
The proposed modification is offered on a voluntary basis to fewer than 25 percent of the franchisor's California franchises within any 12-month period, provided each franchisee is given a right to rescind the modification agreement if the modification is not made in compliance with paragraph (1) of subdivision (c).
Any modification of a franchise agreement with an existing franchise of a franchisee shall be exempted from this chapter if the modification is offered on a voluntary basis and does not substantially and adversely impact the franchisee's rights, benefits, privileges, duties, obligations, or responsibilities under the franchise agreement.
A franchisor shall not make modifications in consecutive years for the purpose of evading the 25 percent requirements set forth above.
If a franchisor in California keeps less than 25% of former California franchisees (not nationwide franchisees), per year, under a Gag order
, there is no violation. The modification agreement can have a clause in the document stating that is was "signed voluntarily".
Part 3 of this code describes Fraudulent and Prohibited Practices. Chapter 1 describes Fraudulent practices. Chapter 2 describes Prohibited practices. Chapter 3 describes Unfair practices.
fraud, deceit, and misrepresentation during the process of franchise contract formation or performance is actionable at civil law under the Indiana Franchise Act. There is no general right of action, only a specific right of private action by a party on the aforementioned grounds. The scope of franchise fraud is also narrower than the scope of ordinary common law fraud action. The Indiana Supreme Court holds that "the circumstances of fraud would be the time, the place, the substance of the false representations, the facts mispresented, and the identification of what was procured by the fraud. [… However,] the plaintiff in a franchise fraud action must nevertheless plead the facts and circumstances alleged to constitute fraud, deceit, or misrepresentation with at least the same degree of particularity and detail as would be necessary to maintain an action for common law fraud".
Also held by the Supreme Court is that scienter
is not an element of franchise fraud. Nor does failure to disclose on the part of a franchisor a pending civil lawsuit at the time of making a franchise agreement constitute franchise fraud, so long as any such representations as to legal action are not relied upon by either party as part of their decision-making process. Statements by the franchisor as to potential earnings by the franchisee do not constitute franchise fraud, since they do not constitute a material (mis-)representation of past or existing facts.
Civil action under the Franchise Disclosure Act must be brought within three years of discovery of the violation. Action brought under the Deceptive Franchise Practices Act must be brought within two.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
as a pyramid scheme
Pyramid scheme
A pyramid scheme is a non-sustainable business model that involves promising participants payment or services, primarily for enrolling other people into the scheme, rather than supplying any real investment or sale of products or services to the public...
.
Franchise fraud in U.S. federal law
The FBI website states:- "pyramid schemes — also referred to as franchise fraud or chain referral schemes — are marketing and investment frauds in which an individual is offered a distributorship or franchise to market a particular product. The real profit is earned, not by the sale of the product, but by the sale of new distributorships. Emphasis on selling franchises rather than the product eventually leads to a point where the supply of potential investors is exhausted and the pyramid collapses."
In the United States, franchising
Franchising
Franchising is the practice of using another firm's successful business model. The word 'franchise' is of anglo-French derivation - from franc- meaning free, and is used both as a noun and as a verb....
is regulated by a complex web of franchise rules and franchising regulations consisting of the Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
Franchise Rule, state laws, and industry guidelines.
The most recent version of the FTC Franchise Rule was in 2007, is printed in .
The FTC franchise rule specifies what information a franchisor must disclose to a prospective franchise business as a franchise opportunity in a document named the Franchise Disclosure Document (FDD).
Means of committing franchise fraud
Franchisors that practice franchise fraud will attempt to pressure a franchisee leaving the franchise system to sign a non-disclosure agreementNon-disclosure agreement
A non-disclosure agreement , also known as a confidentiality agreement , confidential disclosure agreement , proprietary information agreement , or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties...
, confidentiality agreement, or a gag order
Gag order
A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...
. The gag order allows franchise misrepresentation by preventing prospective new franchisees learning important details about the churning franchise. Unfortunately, the Federal Trade Commission Rule and the State Franchise Disclosure Documents that govern the sale of franchises appear to enable franchisors to withhold negative facts concerning the performance of the franchised business plan from new buyers of franchises and to disclaim that the franchisors have promised anything in the way of success and profits in the written disclosure document and the binding, and generally non-negotiated, franchise agreement. The sellers of franchised business plans, the franchisors, themselves, appear to have no obligation under current rules and regulations to disclose negative system UNIT performance statistics to new buyers of the franchised business plans who then unknowingly purchase franchises that have demonstrated low or no profitability and high failure rates of "founding" franchisees.
Uniquely, franchisors, themselves, under the FTC Rule and the State Franchise Disclosure Documents appear not to have to disclose system UNIT Performance Statistics in their possession to new buyers, and new buyers of franchises must do their due diligence with current and ex-franchisees. It should be noted that current and ex-franchisees of systems have no duty under the law to disclose information about their businesses to prospective franchisees.
In the 2007 Franchise Rule, in the Federal Register from pages 15505 to 15506, comments from former franchisees were listed concerning confidentiality agreements:
- "commenters complained that the use of confidentiality clauses is widespread,622 and several commenters urged the Commission to ban the use of confidentiality clauses as a deceptive or unfair trade practice. Other opponents of confidentiality clauses—including state regulators and some franchisors—asserted that such provisions inhibit prospective franchisees from learning the truth as they conduct their due diligence investigation of a franchise offer."
- "one franchisee representative, contended that the harm flowing from confidentiality provisions goes beyond individual franchise sales, noting that such provisions intimidate franchisees into not testifying before legislative committees and public agencies, such as the Federal Trade Commission."
- "[T]he gag order . . . prohibits me from being able to answer questions, you know, and give cautionary remarks to other people who might be considering the franchise that I was with."
- "‘‘the use of gag orders is almost 100 percent in some franchise systems."
- "Three franchisees— Raymond Buckley, Roger C. Haines, and David E. Myklebust—believed that they were kept in the dark about the failure of their franchisor’s system due to confidentiality clauses imposed on current and former franchisees."
- "confidentiality clauses "typically release the franchisor from legal liability and bar the franchisee (under threat of legal action) from making any oral or written statements about the franchise system or their experience with the franchised business. The purpose of such clauses is to shut down any negative public comment about the franchise system."
- "franchisee, related: "I had spoken to some of the franchisees that had left the system. I now feel certain that they painted a picture that was not close to being the truth based on the gag order that [the franchisor] imposed. Had I gotten the truth from these people, my decision certainly would have been different. Every franchisee leaving the system has had a gag order placed on them, making it impossible for current and future franchisees to get the facts."
By having former franchisees under a gag order, franchisors that practice business franchise fraud or franchise churning "inhibit prospective franchisees from learning the truth about the franchising opportunity as they conduct their due diligence investigation of a franchise offer." (page 15505 of the Federal Register
Federal Register
The Federal Register , abbreviated FR, or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains most routine publications and public notices of government agencies...
Franchise Rule)
California
California Franchise Investment Law, begins at section 31000 of the California Corporations Code.Part 1 lists the definitions of the California Franchise code.
Part 2 is the Regulation Of The Sale Of Franchises. There are three chapters, 1) Exemptions, 2) Disclosures, and 3) General Provisions.
Under chapter 2, section 31125 the following exists
The proposed modification is in connection with the resolution of a bona fide dispute between the franchisor and the franchisee or the resolution of a claimed or actual franchisee or franchisor default, and the modification is not applied on a franchise systemwide basis at or about the time the modification is executed. A modification shall not be deemed to be made on a franchise systemwide basis if it is offered on a voluntary basis to fewer than 25 percent of the franchisor's California franchises within any 12-month period.
The proposed modification is offered on a voluntary basis to fewer than 25 percent of the franchisor's California franchises within any 12-month period, provided each franchisee is given a right to rescind the modification agreement if the modification is not made in compliance with paragraph (1) of subdivision (c).
Any modification of a franchise agreement with an existing franchise of a franchisee shall be exempted from this chapter if the modification is offered on a voluntary basis and does not substantially and adversely impact the franchisee's rights, benefits, privileges, duties, obligations, or responsibilities under the franchise agreement.
A franchisor shall not make modifications in consecutive years for the purpose of evading the 25 percent requirements set forth above.
If a franchisor in California keeps less than 25% of former California franchisees (not nationwide franchisees), per year, under a Gag order
Gag order
A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...
, there is no violation. The modification agreement can have a clause in the document stating that is was "signed voluntarily".
Part 3 of this code describes Fraudulent and Prohibited Practices. Chapter 1 describes Fraudulent practices. Chapter 2 describes Prohibited practices. Chapter 3 describes Unfair practices.
Indiana
In IndianaIndiana
Indiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
fraud, deceit, and misrepresentation during the process of franchise contract formation or performance is actionable at civil law under the Indiana Franchise Act. There is no general right of action, only a specific right of private action by a party on the aforementioned grounds. The scope of franchise fraud is also narrower than the scope of ordinary common law fraud action. The Indiana Supreme Court holds that "the circumstances of fraud would be the time, the place, the substance of the false representations, the facts mispresented, and the identification of what was procured by the fraud. [… However,] the plaintiff in a franchise fraud action must nevertheless plead the facts and circumstances alleged to constitute fraud, deceit, or misrepresentation with at least the same degree of particularity and detail as would be necessary to maintain an action for common law fraud".
Also held by the Supreme Court is that scienter
Scienter
Scienter is a legal term that refers to intent or knowledge of wrongdoing. This means that an offending party has knowledge of the "wrongness" of an act or event prior to committing it. For example, if a man sells a car to his friend with brakes that do not work, and he does not know about the...
is not an element of franchise fraud. Nor does failure to disclose on the part of a franchisor a pending civil lawsuit at the time of making a franchise agreement constitute franchise fraud, so long as any such representations as to legal action are not relied upon by either party as part of their decision-making process. Statements by the franchisor as to potential earnings by the franchisee do not constitute franchise fraud, since they do not constitute a material (mis-)representation of past or existing facts.
Civil action under the Franchise Disclosure Act must be brought within three years of discovery of the violation. Action brought under the Deceptive Franchise Practices Act must be brought within two.
See also
- Franchise terminationFranchise terminationFranchise termination is when a franchisor or a franchisee terminate a franchise business license.The United States Federal Trade Commission administrates oversight of preinvestment franchise disclusures via The Franchise Rule....
- CensorshipCensorshipthumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
- Chilling effect (law)
- Fear mongeringFear mongeringFear mongering is the use of fear to influence the opinions and actions of others towards some specific end...
- Franchise Disclosure Document
- FranchisingFranchisingFranchising is the practice of using another firm's successful business model. The word 'franchise' is of anglo-French derivation - from franc- meaning free, and is used both as a noun and as a verb....
- Rollovers as Business Start-UpsRollovers as Business Start-UpsROBS is an arrangement in which prospective business owners use their 401 k retirement funds to pay for new business start-up costs. ROBS is an acronym from the United States Internal Revenue Service for the IRS ROBS Rollovers as Business Start-Ups Compliance Project.ROBS plans, while not...
- The Franchise Rule
- Frivolous litigationFrivolous litigationIn law, frivolous litigation is the practice of starting or carrying on law suits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related to legal merit...
- Legal terrorism
- Legal threatLegal threatA legal threat is a statement by a party that it intends to take legal action on another party, generally accompanied by a demand that the other party take an action demanded by the first party or refrain from taking or continuing actions objected to by the demanding party.-Nature of legal...
- SLAPP
- U.S. Securities and Exchange Commission