New York Franchise Law Blog : Franchise Lawyer & Attorney Charles N. Internicola, Providing National Representation of Franchisees and Franchisors

When purchasing a business or franchise, your lease agreement will serve as one of the most influential factors in determining the profitability of your new business.  In states such as New York and New Jersey where rents are higher, paying particular attention to your rent factor is critical.

When the business that you are purchasing is a franchise, some additional lease agreement "due diligence" factors that you should consider, include:

• Is the Lease a Sublease. Whether or not the lease for the business premises is transferred to you directly (as the purchaser of the business and the new franchisee) or if the lease is held by the franchisor (as the direct tenant) and then to you, indirectly, as a subtenant. This is important because in instances where the franchisor has direct control of the lease, it is possible – if you breach or terminate the franchise agreement – for the franchisor to attempt to “step in” and take over the operations of the business that you are purchasing. Again, this concern only comes about in instances where you breach the terms of the franchise agreement;

• Is there a Lease Management Fee. Whether or not the franchisor charges a monthly lease management fee. This applies mostly in instances involving the franchisor’s sublease of the business location and constitutes, typically, an administrative monthly fee charged to you by the franchisor for being identified as the direct tenant on the lease;

• Restricted Lease Use Clause. Whether or not the leased business location may be converted to a non-franchised business location in the event of a termination of the franchise agreement; and

• Protected Territory. Whether or not the franchise agreement includes a protected territory (i.e., a specified geographic radius or map located within a certain proximity to the business location) within which the franchisor will not sell any additional franchises.

Your lease will serve as one of the most critical business assets that you will be acquiring, so you must get the terms right.  If the business that you are purchasing is a car wash or gas station in New York, Long Island or New Jersey your lease agreement due diligence must also include an assessment of the property for potential environmental conditions.

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The licensing of Intellectual property serves as one of the most fundamental rights granted in the franchisor / franchisee relationship.  Successful franchises and franchisors require strong trademarks (and sometimes, patents) that are both recognized by consumers in the marketplace and capable of protection under federal and state law.  When a franchise is granted, the franchisor undertakes a serious responsibility and obligation to defend and preserve the marks that it is licensing.  

When a franchisors trademark is challenged by a competitor or third party, the franchisor must vigorously defend its interests, and indirectly, the interests of its franchisees.  When counseling and advising clients as to intellectual property planning and litigation strategy, the potential purchase of "Intellectual Property Infringement Defense Insurance ("IPIDI") is sometimes raised as a means of defraying what may be substantial legal fees typically incurred in IP litigation.

What is IPIDI - basically it is an insurance policy that covers your legal fees in the event that you are sued for infringing on the trademarks or patents of a third party.  The exact nature of this insurance varies between insurance companies and will be defined by the express terms of the proposed insurance agreement.  So when considering this insurance and comparing premiums, it is critical to have your lawyer evaluate the express terms of the proposed policy.

Should IPIDI be Considered by Franchisors - Yes, but it is critical to recognize that this insurance is typically limited to only those instances where you are sued and not where you are suing a competitor for infringing on your trademarks or patents.  Also, remember that this policy only covers "legal fees" and if you lose the lawsuit (i.e., found to have infringed a competitors IP, insurance will not cover monetary awards or judgments issued against you.

Some of the Important Factors to Consider - When considering this form of insurance, you should discuss with your franchise or business lawyer some of the following issues:

• Does the policy exclude declaratory judgment lawsuits;
• If the policy excludes "intentional acts of infringement" from coverage, how does the policy define "intent;
• Does the policy require frequent opinion letters from legal counsel as to the subject trademarks and patents;
• How does the premium compare to historical and possible future IP "defense" legal fees. 

Like any insurance, Intellectual Property Infringement Defense Insurance does not offer a complete solution, but, depending on the terms of the policy and the cost of the premium, should be considered as a supplement to your intellectual property strategy and planning.

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In an earlier post I discussed the critical importance of obtaining an environmental assessment prior to purchasing a car wash or gas station.  In a recent transaction (where I represented a client purchasing a gas station business on "leased property") an issue was raised as to whether or not an environmental assessment is necessary when (a) the property is leased - and thereby not owned by the business purchaser, (b) the landlord agrees to be responsible for any pre-existing land contamination, and (c) the landlord maintains an environmental contamination insurance policy.

Basically, the question that has been raised is: "if I am buying the gas station business only (not the land) and the landlord is responsible for past contamination, do I still need to obtain Phase One Environmental Site Assessment?  

Answer: Yes, because even if the landlord is responsible for past contamination (i.e. the landlord will pay for the cost of remediation) as a business purchaser you nevertheless want to avoid contaminated property since any future remediation will require that you shut down your newly purchased business during the "clean up" process.  So even if the landlord or the landlord's insurance company is paying for the remediation costs, you will nevertheless lose thousands of dollars since you will be required to close your business during this process.  Another reason why you will require an environmental assessment is to determine a baseline as to the condition of the property prior taking over the station's operations - this will be critical to avoid future conflicts with your new landlord who may claim that you caused contamination that may have existed long before you.

For a brief but helpful review of insurance options that you should consider for a gas station business, Solomon Williams has written a helpful article on this topic.  As to why insurance is "vital" to your gas station business, Mr. Williams, offers the following summary:

Opening a gas station requires certain insurance policies. These policies need to cover everything from employee protection to public liability insurance as well as environmental and storage tank insurance. If you sell groceries or other items as well as gas then you should also include the necessary insurance for this type of business. The easiest option is to find an insurance company that will tailor a single insurance package to meet your needs.

However, while insurances will serve as a critical component to the overall success of your business, when purchasing a gas station you will nevertheless need an environmental assessment.

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