Franchising

• Better Late Than Never – In the most significant franchise regulatory development since the Federal Trade Commission revised its Franchise Rule (16 CFR Part 436) in 2007, the rules governing financial performance representations – information conveyed to prospective franchisees disclosing historic or projected company-owned or franchised unit gross sales, net profits or both – are undergoing their most sweeping transformation in nearly a quarter century.
• New Rules Governing Financial Performance Representations – For the first time ever, a New York court has held that late delivery of a franchisor’s Franchise Disclosure Document, standing alone, will not trigger liability under the New York Franchise Act without proof that the franchisee sustained damages directly attributable to the late FDD delivery.

By David Kaufmann:

• Treatise: An Introduction to the Law of Franchising (2010, 2018)
• ABA Franchise Law Journal: Franchising Faces Existential Threats (2023)
• McKinney’s New York Statutes: Practice Commentary on the New York Franchise Act (2023)

By David Kaufmann serving as the franchise law columnist for:

• An Overview of Federal and State Franchise Laws, Rules and Regulations (October 17, 2023).
• Is The FTC Cracking Down – Or Cracking Up? (May 30, 2023).
• Franchise Renewal Season – Beware! (March 15, 2023).
• California Enacts Shocking Law Targeting Quick Serve Restaurants (September 12, 2022).
• Massachusetts: Franchisees May Be Employees (April 18, 2022).
• State Franchise Relationship Laws (August 27, 2021).
• Updating Franchise Disclosure Documents: Amendments and Renewals (August 28, 2020).
• Franchisors: Have You Responded To New Accounting Rule ASC 606? (December 24, 2019).
• Private Equity Acquisition of Franchisors (October 25, 2019).
• August 16, 2017 – Franchisors as ‘Joint Employers’: An Update.
• April 20, 2017 – Due Diligence in Franchise Acquisitions.
• October 17, 2016 – Franchise Case Law Developments: ADA, Antitrust, Statutory Fraud Claim.
• August 25, 2016 – Joint Employer Theory: Did Subway Go Off The Tracks.
• June 16, 2016 – Guide to Evaluating Franchises: Review Disclosure Documents.
• April 21, 2016 – Judiciary Addresses Key Franchise Act Issues.
• February 29, 2016 – Conflicting Guidance on Non-Reliance Disclaimers and Anti-Waiver Provision.
• January 13, 2016 – FTC and Wyndham Settle Landmark Data Breach Action.
• December 22, 2015 – NLRB’s ‘Joint Employer’ Thrust Defies 50 Years of Judicial Precedent.
• October 22, 2015 – NLRB’s Misguided ‘Joint Employer’ Thrust Against Franchising.

By Kevin Shelley:

• “Privilege and Other Ethical Considerations in the Work-From-Everywhere Era,” American Bar Association Forum on Franchising Annual Meeting (2023);, American Bar Association Forum on Franchising Annual Meeting, 2023.
• “Franchising (& Distribution) Currents” in Volumes 41-3 (2022), 40-2 (2020), 39-1 (2019), 37-3 (2018) and 36-4 (2017) of the American Bar Association’s Franchise Law Journal.
• “Hot Issues in Litigation,” International Franchise Association Legal Symposium (2015).
• “Litigation Decisions and Their Long-Term Effects on Franchise Businesses,” Franchising World, March 2015.
• “Five Years After Leegin, Can Franchisors Safely Establish Resale Price Maintenance Programs?”, 11 Int’l Journal of Franchising Law 37 (2013).
• “Legal Issues Surrounding Transfers, Assignments, and Resale Programs,” American Bar Association Forum on Franchising Annual Meeting (2009).
• “Basics Track: Frequently Arising Issues in Litigation,” International Franchise Association Legal Symposium (2009).
• “Pushing the Envelope: When Aggressive Sales Tactics are Legal,” Franchise Times, January 2007.
• “Pushing the Franchise Sales Envelope,” American Bar Association Forum on Franchising Annual Meeting (2006).
• “Preliminary Agreements: How to Avoid Unintended Contractual Obligations,” 25 Franchise Law Journal 15 (2005).
• “When Conflicting Principles Collide: The Uncharted Boundary Between Fair Competition and Tortious Conduct,” 22 Franchise Law Journal 184 (2003).
• “’Control’ in Franchising and the Common Law,” 19 Franchise Law Journal 119 (2000).
• “Understanding Franchising Business and Legal Issues,” Practicing Law Institute Symposium, June, 2001.
• Contributor (New York), Franchise Desk Book (American Bar Association, 2001, revised in 2007 and 2011).

Securities Law

By David Robbins:  

•  “Precedential Influence of FINRA Arbitration Awards,” PIABA Bar Journal, Vol. 30, No. 3, October 2023.
• “The New Expungement Rules,” PIABA Bar Journal, Vol 30 No 2, July 2023.
• “Trust Established – Trust Breached” – New York State Bar Association program: Securities Arbitration 2020 – Deep Dive, March 2020.
• “From the Arbitrator’s Perspective: Experts and Damages,” course book article for 2018 New York State Bar Association program on securities arbitration. 29, 2018.
• “Elderly Claimant Customers – Special Considerations in FINRA Arbitration.” Course book article for New York State Bar Association program on Securities Arbitration and Mediation, April 6, 2017.
• “They Are Watching And Listening – What Arbitrators Want,” New York State Bar Association program Securities Arbitration 2015, Course book article, Dec. 12, 2015.
• “Calling All Arbitrators: Reclaim Control of the Arbitration Process – the Courts Let You,” Chapter 21 of  the American Arbitration Association’s  Handbook on Arbitration Practice (updated  revisions to the  2010 publication). JurisNet, LLC  (Dec. 2015).