Tag: research

How Can You Know If Your Business Is Ready To Franchise?

January 2nd, 2014

David Cahn

David Cahn

Do you think you’re ready to make your business a franchise? Ready to become the next Subway or Jiffy Lube? In this column, I’ll outline some key factors to consider as you make the important decision of whether and when to franchise your business methods. 

Becoming the owner of a franchised business (as the “franchisee”) can be a great option for someone who has entrepreneurial skills and motivation but doesn’t want to start a business “from scratch.”  But before you take the plunge and dive headlong into becoming a franchisor, it’s important to keep in mind the most important factors that will determine your success.

Signs That Your Business Is Ready To Franchise

The first hurtle to “franchise-ability” is whether your business has been consistently profitable over a substantial period of time.  Typically, if your business is in a mature industry, such as food service or printing, you need to have been in business at least three years and have a steady record of profits. You should also have multiple separate locations to disprove that notion that it’s only a local success.

A different rule applies to “new” industry or niche businesses. If a business presents a truly unique and innovative operating method, and has shown some profitability, then it may be in the business’ best interests to franchise quickly to gain regional recognition as the leader for that niche. For example, a fitness company that offers a new type of program and that has been developed locally should try to get into the market quickly and establish themselves as the dominant brand for that niche.

The second hurtle is having developed a business system that you can teach to franchisees and can be easily replicated in other locations.  Disclosures that must be given to prospective franchisees under U.S. and state laws have essentially mandated that a franchisor prepare some sort of “Operations Manual” to loan to active franchisees, and also that it plan out a new franchisee training program in advance of offering franchises.   Therefore, before franchising you need to carefully document both how to develop and operate the business you want to franchise, and also plan how you will train others to replicate your methods.

Another important question is whether you have a business name and/or logo that can obtain and maintain trademark protection.  Having a “strong Mark” for both marketing and legal purposes is very important to the long-term success of a franchise system, and if that factor is not present then you should carefully consider whether to re-brand and obtain trademark registration in advance of franchising.

Last but not least, will your prospective franchisees be able to obtain the capital that they need to open and operate franchises?  A prospective franchisor needs to talk with its bankers to develop a profile for a suitable franchisee that will have sufficient net worth (both total and liquid) to be able to personally qualify for financing.  You should then obtain informal commitments from financial institutions to finance candidates who have meet those qualifications and secure suitable locations or geographic territories from which to operate the franchise. You should consider what financing, if any, you would be willing to provide to new franchisees as part of a package to help them obtain a bank loan.

Franchising vs. Other Methods of Expansion

The main advantage that franchising has over expanding a business on your own is that you get to invest other people’s time, skills, and money to growing the business instead of borrowing against your business and personal assets or granting stock to outside investors. Having franchisees allow a business to play off of a diverse pool of talent that may attract different types of people to the business.

Many businesses have found that, by granting franchises, they can recruit talented individuals who will be driven to tremendous lengths to make their business a success. While incentives to the managers of company-owned remote locations can drive good short-term results, franchisees who risk their net worth on the enterprise have the ultimate incentive to develop the businesses for long-term profitability.

As the franchisor, your business will be less likely to be held liable for any claims of personal injury or employment discrimination that that may happen on the premises of a franchised unit, as opposed to one opened with borrowed or equity capital. Making sure that this liability shield is effective takes careful planning, but when properly executed it is a substantial benefit of franchising.

It’s not all good news however. After outside lenders or investors are repaid, company units may yield more profit to the brand founder than franchises. It can be more difficult and costly to terminate a misbehaving franchisee than a location manager. Finally, company owned units located near franchises could suffer revenue losses through competition with the franchises.

So You’ve Decided to Franchise…

With all of that in mind, and you’ve decided that your business is ready to franchise, there are a few things you should do before looking for your first franchisee.

  1. Develop the operating manual and training plan. Owners often create these items with the help of a consultant and with overall legal guidance.
  2. Put money aside. A thoughtful and responsible business owner should have at least $100,000 available for franchising purposes, including legal, development of training programs and operations manuals, and advertising for franchisees (both creative and placement). Also, a shrewd businessman might put away that money, spend half on the aforementioned items, and keep the rest on hand to show sufficient capitalization to obtain state franchise registration on favorable terms.
  3. Be prepared to do some hand-holding. Business owners that are looking to franchise need to be realistic when they look at the additional operating costs of getting a franchise up and running. They must spend money and time recruiting and supporting the new franchisees. Time away from the core-business means money for managerial costs for the original businesses that form the “prototype” for the franchises.

Conclusion

Potential franchisors need to accept that franchising successfully will require some short term sacrifices in terms of time and money. Done correctly and thoroughly can mean the growth of your business to larger regional or national markets. Improperly, underfunded, and rushed could mean the loss of the business entirely. Early investment in franchise resources and assistance will give the business a better chance at success and growth within your industry.

International Franchise Expo Better Than Ever!

June 29th, 2012

David Cahn

For the first time the annual International Franchise Expo took place in New York City from June 15 until June 17, 2012, and it was a revitalized event worthy of The Big Apple. I visited on Friday, which has been the “slow day” of the Expo in the past during which suppliers could mingle and “network” with exhibitors. Accompanied by fellow Baltimoreans Jerry Blumenthal and Nick Courtalis of Business and Commercial Ventures (business brokers) and Anne Paulus of 3D Signs (signmakers), I arrived at 11:30 to find a truly packed exhibit hall!

The number of exhibitors was much larger than the sessions the past several years in Washington, D.C., and also included large franchisors such as Choice Hotels and 7-Eleven that I don’t remember seeing in D.C. However, as a counselor for emerging franchisors and for many franchisees of emerging systems, I always find innovative newer brands to be interesting. Here are a few that intrigued me, with the proviso that none of the descriptions are an endorsement of the franchise:

America’s Taco Shop: an authentic Mexican fast casual restaurant founded by America Corrales Bortin, who is originally from Culiachán, Sinaloa, Mexico. I met her husband Terry, who told me that America was named after the local soccer team in her Mexican town and not as any plan to immigrate, start a business or other ulterior motive. Nice coincidence! But seriously, their food is great.

Interpreters Unlimited: the first franchise system for the provision of interpretation services, including in-person, over the telephone, and by video conference, as well as document translation services. The company has some U.S. government contracts that the franchisee could fulfill in local markets. This “work from home” opportunity could be perfect for a good salesperson.

Joshua’s Shoarma Grill: founded by Israelis living in Europe, they have had some success there and are now seeking to grow here through area developers and masters. Have an interesting Middle Eastern fusion and healthy menu in a fast casual setting.

Team Makers: an education concept with group programs for children ages 5 to 12 to prevent bullying and other inappropriate behavior. The franchisee organizes and provides in-school workshops, after-school programs, birthday parties and carnivals or special events. This company is addressing an important societal need, and could be wonderful for a parent seeking to “re-enter the workforce” after focusing on child rearing.

Boneheads: A fast casual restaurant chain with a focus on fresh fish and Piri Piri spices, which are from Mozambique, Africa, were made popular by the Portuguese, and are now “all the rage” in Europe.

Gyu-Kaku: Japanese restaurant with a twist – the customers grill their own meat at the table! Sort of like Hibachi crossed with Fondue.

CRAL: home services with layers – mold remediation, duct cleaning, ventilation, and lead abatement, with the telephone number 1-888-KIL-MOLD. Seems to indicate strong cross-selling possibilities, although also some operational complexity. Could be good for a veteran with strong operations skills – like a sergeant!

Cool De Sac: A “family entertainment center” with a modern healthy menu, “play stations” and birthday parties programs. Sort of like an upscale “Chucky Cheeses”.

The Expo included many educational seminars and other resources for prospective franchisees and those considering the franchising of their own business methods. The same company also has events in Los Angeles in October (West Coast Franchise Expo) and in Miami in January (Franchise Expo South). For more information, visit http://mfvexpo.com/.

Franchising and its Growth Alternatives

January 19th, 2012

David Cahn

Compliance costs and ongoing challenges of obtaining financing for new businesses have led many companies seeking growth to search for alternatives to franchising. These efforts, while quite understandable, have legal and practical implications. To understand whether they are worth the effort involved, it is important to analyze the nature of your business and its growth objectives by attempting to answer these types of questions:

1. Does your business primarily involve the sales of products you supply, the sale of products to be created by others using your methods, or the provision of services?

2. Does your business benefit from close association with a related enterprise? Examples are energy auditing, which is complementary to mechanical and renovation contractors, and the selling of fractional interests in real estate as part of a real estate brokerage business.

3. Will your business incur substantial upfront costs in the opening of new locations, either directly in the purchase of materials and inventory or indirectly in the time spent by staff in supporting the new operator?

4. Are your business methods a more compelling business asset than your brand name?

5. To what degree is poor service quality in one location likely to jeopardize the ongoing fortunes in other locations?

6. What is your ability to finance growth through profits from existing operations?

7. What is your appetite for risk in growth? Company-owned locations can be more profitable than franchises, but also substantially riskier for many reasons, including employment risk (for a recent example, see this National Labor Relations Board decision).

Your answers to these questions and others will help lead to the desired method of growth and, in turn, the steps required to comply with applicable laws and that safeguard your company’s interests. The answer could be granting a franchise for someone else to develop and own a truly new, independent business, i.e., licensing someone else to operate using your brand, under methods you prescribe and in exchange for fees paid to you. Alternatively, you might recruit local representatives who have successful related businesses to sell your product or service as a relatively small part of their ongoing operations. You might use profits from existing operations to finance part of the costs of opening new locations, while recruiting “local talent” who will finance the other part of the cost and operate those locations (as “partners”). Or perhaps you will offer stock in your company and recruit talented salespeople or managers who will make no cash investment, but who also will have more limited ability to control and profit from local operations over time.

Each such solution (and there may be more than one) requires different legal services and provide different challenges. As growth counselors, the attorneys of Whiteford Taylor & Preston L.L.P. have the skills to assist with any of these endeavors. Contact David L. Cahn to discuss your growth strategy.

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