Franchising

Mr. Kaplan has represented a broad range of franchisors and distributors in over 40 different systems. Through negotiation, mediation, arbitration, and aggressively litigating in court, Mr. Kaplan has resolved hundreds of disputes in nearly every area of franchising, including registration and disclosure, franchise compliance, termination, franchisee associations, vicarious liability, encroachment, advertising funds, antitrust, tortious interference, unfair competition, trade secrets and trademark protection.

Mr. Kaplan also provides guidance and assistance in complying with franchise regulations and laws. He has prepared franchise disclosure documents and handles annual franchise renewals. In the drafting of franchise disclosure documents, Mr. Kaplan often works with attorneys that concentrate their practice in franchise registration by providing them assistance in revising documents to reflect changes in the law and to reduce litigation exposure. He also has prepared and revises ancillary franchise documents such as lease addendums, SBA documents, broker agreements, trademark licenses, confidentiality and non-disclosure agreements, documentation to buy or sell franchise brands and businesses, personal guarantees, and default and termination agreements.

Dispute Resolution

Examples of dispute resolution for matters Mr. Kaplan has handled on behalf of franchisors includes the following:

• Representation of national Mexican restaurant franchisor in Federal Lawsuit seeking injunctive relief and monetary damages for breach of multiple franchise agreements and franchisees’ operation of competing businesses after termination of franchise agreements and for violation of post-term restrictive covenants, trademark infringement and misappropriation of trade secrets. Defense against counterclaims seeking rescission, compensatory and punitive damages for alleged fraud and violation of the Illinois Franchise Disclosure Act.
• Representation of numerous “accidental” franchisors, offering and selling franchises without a disclosure document in actions with regulators and franchisees.
• Representation of regional pizza franchisors in their litigation, arbitration and mediations with franchisees in actions to enforce post-term restrictive covenants, monetary damages, and system compliance brought in Illinois, Indiana, Minnesota and Texas. Also includes defending against claims of breach of contract, and alleged violations of various disclosure statutes, deceptive trade practices acts, and Bankruptcy non-dischargeability proceedings.
• Representation of national oil change franchisor in all its enforcement proceedings including lawsuits to enforce system standards and for collection of royalty and advertising fees.
• Representation of national automobile aftermarket franchisor in all of its litigation with franchisees, including temporary restraining orders, preliminary and permanent injunctions, claims for past due royalty and marketing contributions, use of unapproved products, failure to properly report revenue, unauthorized transfers of franchised businesses, wrongful termination, disclosure violations, claims of deceptive practice, encroachment, and unauthorized financial performance representations.
• Representation of restaurant franchisor with over 1,600 locations in its litigation in Illinois to enforce system standards, including injunction action to restrain the use of unauthorized products and distributors.
• Representation of children’s art class franchisor in its litigation to enforce post-term restrictions and for monetary damages.
• Representation of furniture and automobile restoration franchise in litigation to enforce post-term restrictive covenants, unapproved products and failure to report sales.
• Representation of cell phone repair franchisor in rescission actions for disclosure violations.
• Representation of insurance franchisor in lawsuit alleging violations of disclosure laws for allegedly not disclosing all fees.
• Representation of children’s furniture franchisor in litigation brought by largest franchisee alleging disclosure violations and breach of contract.
• Representation of Illinois master franchisee of janitorial service in its mediation and litigation to enforce post-term restrictions.
• Representation of Canadian Asian food franchisor in actions in Illinois to enforce post-term restrictions.

Mr. Kaplan has represented franchisees in over 100 different systems in all aspects of franchising, including initial counseling and franchise reviews, dispute resolution, buying and selling franchised business and contract negotiations.

Initial Franchise Reviews - Consultation

Mr. Kaplan's lengthy experience representing franchisors and franchisees, business experience, drafting and editing of franchise agreements and resolving hundreds of franchise disputes, makes him ideally suited to provide initial counseling and franchise reviews to those interested in purchasing a single unit, area development agreements, or master franchises.

For a flat fee, prospective franchisees are provided with a thorough review of the applicable franchise and business laws, an analysis of the franchise documents, recommendations for modifying the documents and counseling regarding various business structures and lease issues. This counseling session can be conducted on weekends or evenings and typically takes approximately five hours.

Mr. Kaplan has provided initial franchise counseling in such widely diverse systems as pizza and Italian restaurants, frozen yogurt and ice cream, boxing, non-medical and medical health care, couponing and Internet marketing, health clubs and specially spas, window blinds, dental equipment, hair cutting, video game, bookkeeping; business consulting, fresh fast food, cell phones, chicken and wings, wine, floor covering, tutoring, nanny services, specialty sandwiches and salads, message, children's play facilities, printing, cleaning, disaster restoration, children's gyms, preschool, hamburger, specially fruit gift basket, boating, credit services, pet care, and rental cars.

Dispute Resolution

Through negotiation, mediation, arbitration, and aggressively litigating in court, Mr. Kaplan has resolved nearly every type of franchise dispute, including those involving registration and disclosure, franchise compliance, termination, franchisee associations, vicarious liability, encroachment, advertising funds, antitrust, tortious interference, unfair competition, trade secrets and trademark protection.

Examples of dispute resolution matters Mr. Kaplan has handled on behalf of franchisees includes the following:

• Representation of pet care franchisee wrongfully terminated for alleged abandonment of franchise. Enforcement of rescission order from the Illinois Attorney General, mandatory mediation, and Federal Court action to enforce terms of settlement agreement and constructive trust over fees from franchisees received from franchisor successor entity.
• Representation of master franchisee in dispute with franchisor charging fees that were not contained in the franchise disclosure document provided to master franchisee.
• Representation of management consulting franchisees in disputes with franchisor regarding unenforceability of liquidated damage and post-term restrictions supplementing franchise agreements and negotiations to allow continued operation after termination of franchise agreements.
• Representation of motorcycle dealer in lawsuit involving termination without "good cause" in violation of Illinois Motor Vehicle Franchise Act and administrative proceedings and resolution.
• Representation of Asian fast food franchisee in dispute with franchisor regarding franchisor's failure to provide all equipment in initial investment section of the disclosure document in violation of the Illinois Franchise Disclosure Act and negotiation of termination agreement to repurchase business and lease assignments.
• Representation of pizza franchisee in dispute with franchisor in dispute involving failure of franchisor to disclose adverse trademark ruling that ultimately required name change system-wide and negotiated franchisor repurchase agreement.
• Representation of restaurant franchisee in dispute involving alleged default for violation of "good moral character" clause in franchise agreement.
• Representation of owner operators of several gas stations in claims against franchisor and distributor for fraud and assignment agreements being treated as the sale of franchises under the Illinois Franchise Disclosure Act, the Indiana Franchise Act, and FTC Rules.
• Representation and negotiation of termination of franchise agreement in janitorial service franchise allowing de-identification and continued operation based on numerous alleged violations of the Illinois Franchise Disclosure Act.
• Representation of home care franchisees alleging unauthorized financial performance representations and "steering" in violation of the Illinois Franchise Disclosure Act, seeking rescission and damages.
• Representation of costume store franchisee in action seeking damages for unauthorized financial performance representations and rescission for selling franchises without providing disclosure documents in violation of the Illinois Franchise Disclosure Act.
• Representation of pizza franchisee terminated for alleged under-reporting of gross sales in Federal Court and counterclaim for wrongful termination.
• Representation of children's themed specialty restaurant franchisee in issues related to abandonment of the system by franchisor and recommendations.
• Representation of coupon franchisee in dispute with franchisor regarding post-term non-competition issues and continued operation of business under different format.
• Representation of gasoline tank cleaning franchisee in dispute involving violation of the Illinois Franchise Disclosure Act and required purchases and negotiation of revised agreements.
• Representation of children's fashion accessories franchisee in arbitration with franchisor alleged to have knowingly committed fraud and violations violated of the Illinois Disclosure Act, ancillary matters with Illinois Attorney General and counsel regarding franchisor bankruptcy.
• Representation of cell phone licensee in action claiming wrongful termination.
• Representation of hair cut franchises in dispute with franchisor who failed to provide disclosure documents in violation of the Illinois Franchise Disclosure Act and negotiation of revised agreements.
• Representation of children's portrait franchise in dispute with franchisor over post-term non-competition issues and general bankruptcy counseling.
• Representation of soccer store franchisee in dispute with franchisor alleging disclosure violation under the Illinois Franchise Disclosure Act and negotiation of resolution agreements.
• Representation of chocolate candy and confection franchisees in litigation with franchisor in Indiana alleging franchisor violations of the Indiana Franchise Disclosure Act, misappropriation of advertising funds and breach of contract.
• Representation of web design and Internet optimization franchisee in dispute involving franchisor's alleged failure to support system.
• Representation area developer of message in dispute with franchisor over enforcement of contractual buy-out provision and franchisor failure to provide commissions and negotiation of resolution agreements
• Representation of ice cream franchisee in Federal court action seeking to enforce non-competition agreement and for damages and negotiation of resolution agreement.
• Representation of franchisees of regional pizza franchisor in actions involving failure to disclose construction and equipment costs in violation of the Illinois Franchise Disclosure Act and negotiation of resolution agreements.
• Representation of donut franchisees in litigation alleging violations of the Illinois Franchise Disclosure Act, franchisor's failure to provide required products, assignment of subleases, and unauthorized suppliers and products.
• Representation of home care franchisee in action to enforce post-term non-compete agreement and resolution of same.
• Representation of restaurant master franchisee in wrongful termination lawsuit.
• Representation of coupon franchisee in lawsuit alleging unlawful steering and failure to disclose terminated franchisee and resolution of same.
• Representation of terminated hamburger franchisee and negotiation of agreement with franchisor repurchasing the locations.
• Representation of printing franchisee in negotiation of termination agreement.