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Observations on Negotiating Franchise Agreements in Today's Legal Environment
Franchise law has long characterized franchise agreements as adhesion contracts (see, Ticknor v. Choice Hotels Int'l, 265 F.3d 931 (9th Cir. 2001) (Montana law); Bolter v. Superior Court, 87 Cal. App. 4th 900 (2001) (California law)). While no empirical data exist on the percentage of franchisors that will negotiate the terms of their franchise contract with prospective franchisees, it is fair to conclude that they remain a minority. To start the pre-sale disclosure process, a franchisor must present a prospect with the terms of its bona fide offer for the sale of a franchise. Frequently, these are the only terms the franchisor is prepared to accept.
Franchisors resist prospective franchisee efforts to negotiate better terms for themselves for any number of reasons. Some franchisors have no incentive to negotiate: Enough prospects are ready to buy a franchise on the franchisor's economic terms. Some franchisors offer their franchises on a strict 'take-it-or-leave-it' basis to avoid the administrative burden of managing a network of diverse contracts. Other franchisors eschew negotiating to avoid the possible fallout from charges of favoritism or to simplify the paperwork burdens associated with franchise sales. Some franchisors hide behind the extra disclosure duties that arise from contract negotiations by perpetuating the impression that franchise laws forbid franchisors from negotiating changes to their standard deal, which, of course, is untrue. Franchise laws do not forbid franchisors to negotiate franchise agreements, and franchise regulators do not intend for pre-sale disclosure rules to discourage contract negotiations. Nevertheless, the prevailing public perception is that franchise agreements are non-negotiable (see, for example, http://franchises.about.com/od/franchisinglegalissues/f/Fran_negotiate.htm, as of Dec. 10, 2006).
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.