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Franchise Disputes Case Studies

Case Study 1 Franchise Business Losing Money

Background

Our client was a franchisee and had set up a new franchised business.  However, after 18 months of operation the business was losing a lot of money each month.
The franchisor had helped to hire and train most of the franchisee's staff, had approved of the business location, had provided training to the franchisee and so on.

The franchisee followed the franchise system to a tee and undertook all extra training required or suggested by the franchisor and implemented all suggestions of the franchisor.
The franchise business continued to lose money.

The franchisee had to take on another job to cover the money being lost by the franchise business.
The franchisee was eventually able to convince the franchisor to buy back the business.  The franchisee would make a loss under the deal however at least he would stop bleeding money and would be able to rebuild his life.

The parties negotiated a heads of agreement, the franchisor took some the franchisee's staff and trained them so they would be ready for when the franchisor took over the business, the landlord was notified and asked to prepare assignment of lease documents, the franchisee was told the transfer would happen quickly and then the franchisor went quiet.  The franchisee could not get a response for 7 months. 

During the period of negotiation and the subsequent 7 months the franchisee did not advertise his business for sale or do anything to otherwise sell his business because he believed the franchisor was buying the business.  He continued to lose a lot of money during this time.

The franchisor had quite simply changed its mind and failed to let the franchisee know it would no longer be purchasing the business.  The contract to purchase had never been signed and the heads of agreement was stated not to be binding.

The franchisee owed about $300,000 in unpaid franchise fees and marketing levies.  The franchisor served a breach notice on the franchisee threatening to terminate the franchise agreement if the fees were not paid in 30 days.

What we did

We prepared a 12 page notice of dispute/ letter of demand.  This led to an informal meeting between us and the franchisor.  That meeting did not eventuate to an outcome but was one step closer to a resolution.

The parties negotiated between themselves and the only solution the franchisor really came up with was for the franchisee to either sell the business at a greatly reduced value or to employ a new manager who may turn the fortunes of the business around.

The franchisee had been operating the business for longer than 2 years now and neither of those outcomes were agreeable to him.

We referred the matter to the Office of Franchising Mediation Advisor for the appointment of a mediator.

Outcome

The mediation resulted in an agreement between the parties:

  1. the franchise fees and marketing levy would be significantly reduced to allow the franchisee to continue to operate;
  2. the franchise fees and marketing levies the franchisee had not paid in the amount of about $300,000 would be halved and the franchisee could pay them off over a period of 6 months;
  3. the franchisor would give the franchisee the training and support it needed to turn the business around;
  4. if the franchisee could sell the business then the transfer fee payable on sale would be significantly reduced.

This placed the franchisee in a significantly better position to either sell the business or to stick at it and attempt to turn it around with the breathing space of significantly reduced debt and fees to be paid.

Learnings

Whilst the franchisor did not agree to buy back the business we certainly achieved some breathing room for the franchisee.

If the franchisee is able to turn the business around he has stated he will stick with the franchise system.  The franchisor's willingness to listen and collaborate at the mediation mended a very fractured relationship and both of the parties expressed their willingness to work with each other if the business performed.

The reduction in fees and waiver of large part of the debt took a lot of pressure off the franchisee.  That will allow the franchisee the time to sell the business for a reasonable amount rather than having to fire sale the business.

The franchisee was released from paying in excess of $200,000 in fees as a result of this process.

 

Case Study 2- Franchisor Buyback

Background

The franchisee bought an already existing franchised business.
Unfortunately a number of things occurred over the years to greatly impact on the business.  These included competitors opening in very close vicinity and all of the commercial premises around the business closing down as they were being demolished to make way for residential towers.
Our client's business was going backwards very quickly and our client had attempted to discuss an outcome with the franchisor but to no avail.

What we did

We prepared a notice of dispute outlining all infringements of law and breaches of franchise agreement. These included claims of misleading and deceptive behaviour, unconscionable behaviour, breach of obligation to act in good faith and so on.

We undertook negotiations with the franchisor and the franchisor's solicitors.
The franchisor had offered to buy back the store at an amount close to $10,000. 

Outcome

Negotiations resulted in the franchisor buying back the store for over $110,000.

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