Franchise Lawyer Blog

Depending upon your source of information, we are headed into a recession or a depression or even a catastrophic cessation of all business activities. By any definition, things do not look promising and we are looking at a new economic landscape. The question arises as to how that will affect franchising. People will tell you that franchising is counter-cyclical, that it continues to thrive during a downturn in the general economy. We have touched on this before, but let’s try to approach the question with numbers.

The equity markets are searching for a bottom after a historically precipitous decline. However, let’s take a look at a small part of the equity market, a selection of U.S. publicly traded franchisors referred to as the Rosenberg Center Franchise 50 Index, developed by the University of New Hampshire’s Rosenberg International Center of Franchising.

The index tracks the performance of the top 50 U.S. franchisors. These 50 franchisors represent 98% of the market capitalization of public companies engaged in business format franchising. Using a similar model as the S&P 500, the performance of those franchisors has been tracked and charted. In the 2nd quarter 2008, the RCF50 was down 4.4%, compared to the S&P 500 being down 3.2%. For the first half 2008, the RCF50 was down 12% and the S&P 500 was down 12.8%. Not much of a difference there. However, for the years 2000-2008, the RCF50 is up 59.6%, while the S&P 500 is down 8.2%. These numbers suggest that franchising has historically outpaced the general economy, but is suffering similarly in this recent downturn.

A quick review of various franchise related websites finds a similar set of statistics being advanced by those who support the franchising concept. These statistics consistently support the notion that franchised businesses are more growth oriented and survive at a higher rate than non-franchised businesses. For instance, a US Department of Commerce study is quoted on more than one site as showing that from 1971 to 1997, less than 5% of franchised businesses close each year, while those same websites cite a US SBA Study looking at the period 1978 to 1998, which found that 62% of non-franchised businesses close within the first 6 years of their opening.

It is difficult to independently verify those statistics and they are dated in any event. But if those trends are true, than someone looking to get into business in an unfriendly economic environment would be wise to look at franchised concepts rather than inventing his own. The question remains whether the current economic environment is so toxic that any business venture, be it franchised or self-invented, will find it impossible to thrive.

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Understandably, much more attention is given to the present and future of franchising than to the past, but this entry considers (very briefly) the origins of franchises. Not the start of the practice, though, but rather the etymology of the word franchise.

In short, going backward in time, the word “franchise” comes to modern English by way of Middle English fraunchise (circa 1290), from Old French franchise (“freedom”), from franche, the feminine of franc, from Late Latin francus, meaning, simply, “free” (or “exempt”; francus is also the root of “frank”—open, honest—and, some argue, even “France” itself.)

Coming back again to the present, the meaning of “franchise” narrowed to “a particular legal privilege” in the eighteenth century… then, in 1790, to “the right to vote” (that being a particularly particular legal privilege). The meaning of franchise of “the authorization by a company to sell its products or services” dates from 1959. (It does not appear any other specific milestone in franchising was reached in that year, though the International Franchise Association was founded in 1960.)

Notably, when a business franchise arrangement comes to an end, if it is because of something inappropriate that the franchisee has done, generally we speak of the default and termination of the franchisee by the franchisor. We do not typically refer to his or her disenfranchisement, that term being reserved for the (usually unnecessary) fate that befalls one who loses the right to vote, which is most commonly the result of a failure to reregister when required… something to keep in mind this election season.

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Your choice of candidate for the U.S. presidency will no doubt be made after a complex consideration of various factors. However, since we are focused on franchising in this space, let’s try to consider the election just from that perspective.

Franchising World Magazine recently published the “FranPAC Report Card.” FranPAC is the political action committee of the International Franchise Association (which also publishes Franchise World Magazine); FranPAC advertises itself as supporting “pro-franchise, pro-business” candidates. FranPAC donated to 27 candidates for the Senate—23 Republicans and 4 Democrats. FranPAC gave financial support to 83 candidates for Congress—64 Republicans, 19 Democrats. FranPAC made a donation to the National Republican Congressional Committee as well. Although FranPAC did not donate directly to either Presidential candidate, clearly it favors Republican candidates in general as the pro-business, pro-franchise candidates and presumably would favor McCain in the same manner. To the extent FranPAC’s financial activities reflect the sentiments of the franchising community as a whole, clearly there is a perception that McCain and the Republican Party will best serve the interests of the franchising community.

Others have tried to sort through the candidates’ stated views to determine who might best serve the franchising community. Blue Mau Mau, a publication primarily serving the franchisee community, analyzed how each candidate would serve the small business community. But there is no plain answer there either, as both candidates offer a litany of ideas that would serve those who might fall within that constituency.

Notably, NPR’s online publication likens the development of the Obama campaign and the Obama brand to the development of a franchise system. But Obama’s intelligent use of the grassroots business structure that forms the basis of many successful franchise systems does not necessarily mean he is naturally the best candidate for those working within the franchise industry.

The IFA went to the candidates themselves with a series of questions, some directed specifically at issues facing the franchise community. Each candidate offers specific solutions to particular problems, although the pair has a tendency to disagree on what the real issues are. Reading through this Q&A might give one a sense of how each particular candidate would address a specific issue facing a specific franchisee or franchisor. It does not give a clear indication, however, that either candidate would better serve the franchising or small business community.

Given the enormous complexities of our current financial environment, an undecided voter would be much better served examining the views of the presidential candidates on our current financial crisis generally and the solution(s) each of them proposes. One of these men will have to lead us out of this morass, and all business models are going to sink or swim together based upon how well the man ultimately elected provides that leadership.

Posted by Terrence M. Dunn | Permalink | Email This Post

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Welcome to Franchise Lawyer Blog, published regularly by Einbinder & Dunn LLP, a New York City law firm with a broad based commercial practice and a finely tuned expertise in franchise law. Our firm has attained a unique perspective over the years as a small firm that routinely deals with the largest firms and as a franchise firm that deals regularly with both franchisees and franchisors. We'd like to share that cutting edge expertise with you on a regular basis.

Every day the attorneys in this office wrestle with issues of first impression raised by the new FTC disclosure requirements that became mandatory just this month, as well as creating and improving the new form Franchise Disclosure Document (FDD). We are also addressing in both negotiation and litigation classic franchise questions such as when does a business become a franchise despite the parties' desperate attempts to call it something else? All the while we are aiding clients in developing franchise systems and acquiring established franchises.

We will share our own experiences as well as national developments with you and hopefully add to your understanding of this rapidly developing area of the law. Many people believe that the franchising current flows counter to that of the mainstream economy, as downsized individuals look to buy a job in established small businesses. That theory may be sorely tested as our economy continues to turn downward.

Stop by and visit with us here and you will leave more informed about franchising and, by extension, about the overall nature and condition of our economy.

Posted by Terrence M. Dunn | Permalink | Email This Post

Posted In: General Commentary

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