As franchise counsel I am a strong proponent of “disclosure” – the more of it, the better. Quality disclosures contained in your FDD serve a critical role in mitigating future litigation risk and expense. So, when it comes to FDD disclosure exemptions, we typically proceed with extreme caution. Nevertheless, in the appropriate circumstance, franchisors should consider or at least be aware of potential tools available to them when it comes to available exemptions to the disclosure mandates of the Federal Franchise Rule.
One “grouping” of potential FDD disclosure exemptions relate to transactions involving sophisticated investors, insiders and large franchise investments. These “potential” exemptions, should be evaluated and considered under the following circumstances:
- “Large Franchise Investment”. The “Large Franchise Investment” exemption applies to franchise transactions involving a franchisee initial investment of at least $1 million exclusive of unimproved land and franchisor (including affiliates) financing. Application of this exemption is dependent upon an analysis of the transaction, satisfaction of the dollar volume criteria and the requirement that the franchisee sign a disclosure acknowledging that the franchise sale was exempt from the Franchise Rule.
- “Large Franchisee Entities”. The “Large Franchisee Exemption” applies to franchise sales transactions involving prospective franchisees that are corporate entities, possess a minimum net worth of $5 million and possess no less that 5 years of prior business experience. By combining both net worth and prior business experience requirements, this exemption is intentionally limited corporate franchisees that possess a predicate level of sophistication.
- “Insiders of the Franchisor”. The “Insider Exemption” applies to franchise sales to the owners, directors, and managers of the predecessor entity of the franchisor. That is, this exemption applies to the officers, owners and managers of a business before it became a franchisor. These prospective franchisees must possess at least two years experience in the franchisors business and, at the time of becoming a franchisee, have maintained their insider status.These “sophisticated investor” exemptions are an important tool for franchisors to consider and beware of One such exemption relates to “Large Franchisees”.
The foregoing “sophisticated investor” exemptions constitute a critical tool for franchisors to be aware of when planning certain non-traditional franchise sales transactions and when evaluating potential litigation strategy. Application of the foregoing exemptions requires a fact specific analysis of factors and legal criteria – including applicable rules and regulations associated with each exemption) . The key, however, is to be aware of this potential “tool”.