Tag: jurisdiction

Is That Really My Problem? Case Highlights Need to Verify Franchise Disclosure Data

November 7th, 2011

A recent decision in A Love of Food I, LLC v. Maoz Vegetarian USA, Inc. , Case No. AW-10-2352, Bus. Franchise Guide (CCH) ¶ 14,633 (decided July 7, 2011), the United States District Court for the District of Maryland, in denying a motion to dismiss, highlighted the need for franchisors to vigilantly update their government-required disclosure document to maintain its accuracy, while also providing a valuable reminder as to the geographic scope of state franchise sales laws’ application.

Misrepresentations in Franchise Disclosures

The franchise agreement at issue in the case was for a Maoz Vegetarian® quick-serve restaurant that the plaintiff opened and operated in the Dupont Circle neighborhood in Washington, D.C. The franchisee alleged that the startup cost estimates in the franchisor’s government-mandated disclosure document (then known as the Uniform Franchise Offering Circular, or “UFOC”) dramatically underestimated the actual startup costs for its franchise, and that the franchisor knew that the representations were inaccurate at the time it made them. They alleged that the franchisor’s actions constituted violations of the anti-fraud provisions of the Maryland Franchise Registration and Disclosure Law, as well as fraud as a matter of the general common law of Maryland.

In a decision during 1999 in the case of Motor City Bagels, LLC v. American Bagel Co., Civ. No. S-97-3474, Bus. Franchise Guide (CCH) ¶ 11,654, another judge in the U.S. District Court for Maryland had held that a franchisor could have committed fraud by misrepresenting the initial investment costs in its UFOC by approximately 20 – 25%. By contrast, in this case the franchisee alleged that it had to spend more than twice the franchisor’s “maximum” estimate of $269,000 to open their restaurant, and that during 2008 the franchisor increased the “maximum” initial investment cost estimate in its UFOC by $225,000.

The UFOC specifically encouraged the franchisee to rely on the startup cost estimates in two ways. First, the UFOC specifically itemized various cost categories and provided sub-estimates for each category. Second, the UFOC pointed out that the estimates were based on the franchisor’s “15 years of combined industry experience and experience in establishing and assisting our franchisees in establishing and operating 23 [vegetarian restaurants] which are similar in nature to the Franchised Unit you will operate.”

The franchisor argued that cost projections were statements of opinion and could not constitute fraud because they were not susceptible to exact knowledge at the time they are made. However, the court held that erroneous projections could supply a basis for fraud under Maryland law in some cases. Whether projections were sufficiently concrete and material to qualify as statements of fact required a context-sensitive inquiry that could not be reduced to a single formula. An assessment of relevant factors—including the extent of the alleged discrepancy, whether the projection was based on mere speculation or on facts, and whether the projection was contrary to any facts in the franchisor’s possession—supported the conclusion that the franchisee had sufficiently stated a claim for fraud to proceed with factual discovery for its common law fraud and Maryland Franchise Law claims.

Jurisdiction in Maryland and Application of New York Franchise Sales Law

The franchise agreement in this case only permitted the franchisee to open a restaurant in the District of Columbia, and in fact that is where the restaurant has been operated. The defendant franchisor maintains its principal place of business in New York, and the parties’ first meeting concerning a potential franchise sale took place at the franchisor’s New York office. The plaintiff franchisee was formed by Maryland residents and, at the time of the franchise purchase, “maintained its principal place of business” in Chevy Chase, Maryland. The parties had numerous telephone conversations during which the franchisor’s representatives were located in New York and the franchisee’s representatives were in Maryland. The franchisor sent its UFOC and the proposed franchise agreement contract to the franchisee’s address in Maryland.

Based on those facts, the court found that those activities were sufficient to allow it to exercise jurisdiction, meaning that it could require the franchisor to defend itself in Maryland.

The franchisee filed a claim for violation of the New York Franchise Sales Act on that basis that the law applied because the franchise sale was made from New York. The court, following the express terms of that law and a decision of the U.S. District Court for the Southern District of New York, found that the New York Franchise Sales Act protects franchisees in other states where offer and/or acceptance took place in New York. The rationale for extending the statute to situations such as this was to protect and enhance the commercial reputation of New York by regulating not only franchise offers originating in New York by New York-based franchisors.

The anti-fraud provisions of the Maryland Franchise Registration and Disclosure Law, as well as those of other states such as California, also apply to franchise sales made from the state. However, to the author’s knowledge, New York is the only state that requires franchisors based within its borders to obtain state registration approval before selling franchises to out of state residents.

The takeaways:

(1) Franchisors need to be vigilant to monitor the actual initial investment costs being incurred to open new locations (whether company-owned or franchised) and promptly update initial cost estimates. Prospective franchisees should not assume that the franchisor is doing this, and should ask existing franchisees about their initial investments before buying franchise rights.

(2) If a franchise seller is discussing a franchise sale with a person located in state with a franchise sales law, then the franchisor needs to determine if it needs to obtain pre-sale registration approval from that state before selling the franchise.

(3) New York needs to amend its law to exempt out of state franchise sales from its registration requirements.

Minimum Contacts in the Digital Age: Using Online Resources Can Subject You to Foreign Jurisdiction

October 9th, 2009

The United States District Court for the District of Maryland recently held that use of a company’s website can be sufficient to subject the user to jurisdiction in the state where the company resides. In CoStar Realty Information, Inc. v. Mark Field d/b/a Alliance Valuation Group, Case No. 08-00663, the Court held that the defendants, who resided in California, Florida and Texas, were subject to jurisdiction in Maryland based on their use of CoStar’s website (CoStar’s principal place of business is in Bethesda, Maryland). This means that, to avoid having a court judgment entered against them, they had to defend against the claim in Maryland.

A court may exercise jurisdiction over a defendant only if requiring the defendant to appear before the court will not infringe the defendant’s due process rights under the Fourteenth Amendment of the U.S. Constitution. The U.S. Supreme Court has held that the requirements of due process are satisfied where: (1) exercise of jurisdiction will not “offend traditional notions of fair play and substantial justice”; and (2) the defendant, as a result of its actions, “should reasonably anticipate being hailed [before the court].” State “long-arm” laws can further define specific actions or conduct that will satisfy these constitutional requirements.

In CoStar Realty, the defendants were alleged to have improperly shared a user ID and passcode for accessing CoStar’s subscription-based website, which had been authorized for use only by a limited number of individuals. The defendants regularly accessed CoStar’s website, and also used Co-Star’s live telephone support, representing themselves as valid customers. Otherwise, the Court did not cite any relationship between the defendants and the State of Maryland for purposes of the due process analysis. However, based on these actions alone, the defendants were found to have availed themselves of the privileges of doing business in Maryland and therefore were held subject to the Court’s jurisdiction.

The Court also noted that, even though the defendants were not valid CoStar customers, by using CoStar’s website they implicitly agreed to the website’s Terms of Use, which included, among other things, the user’s consent to jurisdiction in Maryland.

While jurisdiction in this case was based specifically on the defendants’ alleged wrongful actions, so-called “general jurisdiction” can be based on systematic and continuous contacts with the forum state, whether or not they relate directly to a plaintiff’s claims. With the rapid growth of Internet-based commerce, your online activities may subject you to potentially being sued in more states than you expect.

Copyright 2009