Franchise disclosure document

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A franchise disclosure document (FDD) is a legal document which is presented to
prospective buyers of franchises in the pre-sale disclosure process in the United States. It was
originally known as the Uniform Franchise Offering Circular (UFOC) (or uniform franchise
disclosure document), prior to revisions made by the Federal Trade Commission in July 2007.
Franchisors were given until July 1, 2008 to comply with the changes.[1]
The Federal Trade Commission Rule of 1979 which governs disclosure of essential information
in the sale of franchises to the public underlies the state FDD's and prohibits any private right
of action for the violation of the mandated disclosure provisions of the FDDs. Therefore, the
FDD implies that only the federal government or the state governments have the right to sue
and negotiate consent decrees and rescissions with those franchisors who violate the
provisions of the FTC Franchise Rule. However, various state franchise laws that provide for
use of an FDD, in lieu of their own disclosure requirements, may create private rights of action,
where a franchisor has violated its disclosure obligations in its FDD.
The Franchise Rule specifies FDD disclosure compliance obligations as to who must be the
one to prepare the disclosures, who must furnish them to prospective franchisees, how
franchisees receive the disclosures, and how long franchisees must have to review the
disclosures and any revisions to the standard franchise agreement. The FDD underlies the
franchise agreement (the formal sales contract) between the parties at the time the contract is
formally signed. This franchise sales contract governs the long-term relationship the terms of
which generally range from five to twenty years. The contracts cannot generally be changed
unless there is agreement of both parties.
Under the Franchise Rule, which is enforced by the Federal Trade Commission (FTC), a
prospective franchisee must receive the franchisors FDD franchise disclosure document at
least 14 days before they are asked to sign any contract or pay any money to the franchisor or
an affiliate of the franchisor. The prospective franchisee has the right to ask for (and get) a
copy of the sample franchise disclosure document once the franchisor has received the
prospective franchisees application and agreed to consider it. The franchisor may provide a
copy of its franchise disclosure documents on paper, via email, through a web page, or on a
disc. Franchise disclosure document requirements.[2]
According to the Federal Trade Commission,[3] there are 15 states that require franchisors to
give a FDD to franchisees before any franchise agreement is signed. Thirteen of those states
require that they be filed by a state agency for public record.
All franchise buyers should use information contained in the FDD in their franchise research.
Contents
[hide]

1Franchise disclosure document requirements

2See also

3References

4External links

Franchise disclosure document requirements[edit]

The document discloses extensive information about the franchisor and the franchise
organization which is intended to give the potential franchisee enough information to make
educated decisions about their investments. The information is divided into a cover page, table
of contents and 23 categories called "Items":[2]
Twenty one of the items contain information primarily pertaining to the franchisor but,
unfortunately, only two of the items contain information pertaining to the performance of the
franchise, itself, that is being offered for sale. One of these items, Item 19, "Earnings Claims" is
an optional disclosure under the FTC Rule and State FDDs even though the performance of
the franchise in terms of unit "earnings" are material facts that should be disclosed to new
buyers by the seller of the franchise, who profits from the sale. There have been hearings in
the US Congress to determine whether or not this failure to require the disclosure by the
franchisor of "unit earnings" constitutes a flaw in the FTC Rule that removed the regulation of
the sale of from state jurisdiction under securities laws to federal jurisdiction under the
provisions of the FTC Rule. Suggested changes never got out of Committee.
The other, Item 20, provides a current accounting of the number of units that comprise the
systems and reports the terminations and sale-transfers which have been applied to report the
total number of units that comprise the system. Item 20 also provides the names and contact
information of franchisees, current and ex-franchisees, who may be contacted for information
in the due diligence process to be conducted by prospective buyers of the franchises offered
for sale. Unfortunately, due diligence conducted with Item 20 references is not always reliable
because, of course, these references have no legal duty to disclose the performance statistics
of their independent businesses to new buyers of franchises. Also, the information in Item 20
does not disclose that the transfer/sales can be transfers and sales that resulted in gains OR
losses for the franchisees who have transferred or sold their units.

1. The Franchisor and Any Parents, Predecessors, and Affiliates.

This section tells how long the franchisor has been in business, likely competition, and
any special laws that pertain to the industry, like any license or permit requirements.
This will help the prospective franchisee understand the costs and risks they are likely
to take on if they purchase and operate the franchise.

2. Identity and Business Experience of Key Persons.

This section identifies the executives of the franchise system and describes their
experience.
3. Litigation History.
This section discusses prior litigationwhether the franchisor or any of its executive
officers have been convicted of felonies involving fraud, violations of franchise law, or
unfair or deceptive practices law, or are subject to any state or federal injunctions
involving similar misconduct. It also says whether the franchisor or any of its executives
have been held liable foror settled civil actions involvingthe franchise relationship.
A number of claims against the franchisor may indicate that it has not performed
according to its agreements, or, at the very least, that franchisees have been
dissatisfied with its performance.
This section also should say whether the franchisor has sued any of its franchisees
during the last year, a disclosure that may indicate common types of problems in the
franchise system. For example, a franchisor may sue franchisees for failing to pay

royalties, which could indicate that franchisees are unsuccessful, and therefore, unable
or unwilling to make their royalty payments.
4. Bankruptcy.
This section discloses whether the franchisor or any of its executives have been
involved in a recent bankruptcy, information that can help potential franchisees assess
the franchisors financial stability and whether the company is capable of delivering the
support services it promises.
5. Initial Franchise Fee.
This section describes the costs involved in starting and operating a franchise,
including deposits or franchise fees that may be non-refundable, and costs for initial
inventory, signs, equipment, leases, or rentals. It also explains ongoing costs, like
royalties and advertising fees.

6. Other Fees and Expenses.

Training
This section explains the franchisors training and assistance program.
Advertising
This section has information on advertising costs. Franchisees often are required to
contribute a percentage of their income to an advertising fund.

7. Franchisee's Estimated Initial Investment.

8. Restrictions on Sources of Products and Services.

This section tells whether the franchisor limits:

suppliers from whom a franchisee may purchase goods

9. Obligations of the Franchisee.

10. Financing Arrangements.

11. Obligations of the Franchisor.

12. Territory.

13. Trademarks.

14. Patents, Copyrights, and Proprietary Information.

15. Obligation of the Franchisee to Participate in the

Actual Operation of the Franchise Business.

16. Restrictions on Goods and Services Offered by

the Franchisee.

17. Renewal, Termination, Repurchase, Modification

and/or Transfer of the Franchise Agreement, and
Dispute Resolution.
This section spells out the conditions under which the franchisor may end a
franchisees franchise and a franchisees obligations to the franchisor after termination.
It also defines the conditions under which a franchisee can renew, sell, or assign the
franchise to others.

18. Public Figures

19. Financial Performance Representations.

Earnings information can be misleading.
Franchisors are not required to disclose information about potential income or sales,
but if they do, the law requires that they have a reasonable basis for their claims and
that they make the substantiation for their claims.
Franchisors practicing Franchise fraud may have a high number of former franchisees
under a Gag order, preventing a potential new franchisee from obtaining a clear picture
of financial performance.
Sample Size
The disclosure document should tell the sample size and the number and percentage
of franchisees who reported earnings at the level claimed.
Average Incomes
Average figures tell very little about how individual franchisees perform. An average
figure may make the overall franchise system look more successful than it is because
just a few very successful franchisees can inflate the average.
Gross Sales
These figures dont really tell about the franchisees actual costs or profits. An outlet
with a high gross sales revenue on paper may be losing money because of high
overhead, rent, and other expenses.
Net Profits
Franchisors often do not have data on net profits of their franchisees.
Geographic Relevance
Earnings may vary with geography. The disclosure document should note geographic
or other differences among the group of franchisees whose earnings are reported and
a franchisees likely location.
Franchisees Backgrounds
Franchisees have different skill sets and educational backgrounds. The success of
some franchisees doesnt guarantee success for all.
Reliance on Earnings Claims
Franchisors may ask a franchisee to sign a statement sometimes presented as a
written interview or questionnairethat asks whether a franchisee received any
earnings or financial performance representations during the course of buying a
franchise.

20. List of Franchise Outlets

This section has very important information about current and former franchisees.
Many franchisees in an area may mean more competition for customers. The number
of terminated, cancelled, or non-renewed franchises may indicate problems. The saletransfer columns can obscure churning of units through fire sales to third parties by
failed or failing franchisees. Some companies may repurchase failed outlets and list
them as company-owned outlets.
Some of the former franchisees may have signed confidentiality agreements that
prevent them from speaking. Franchisors practicing Franchise fraud may have a high
number of former franchisees under a Gag order.
If a franchisee buys an existing outlet that was reacquired by the franchisor, the
franchisor must tell the franchisee who owned and operated the outlet for the last five
years. Several owners in a short time may indicate that the location isnt profitable or
that the franchisor hasnt supported that outlet as promised.

21. Financial
Statements
The disclosure document gives important information about the companys financial
status, including audited financial statements.
A franchisee can find explanatory information about the franchisors financial status in
notes to the financial statements.
Investing in a financially unstable franchisor is a significant risk; the company may go
out of business or into bankruptcy after a franchisee has invested their money.
A lawyer or an accountant can review the franchisors financial statements, audit
report, and notes. They can help a franchisee understand whether the franchisor:

has steady growth

has a growth plan

makes most of its income from the sale of franchises (Franchise fraud), or from
continuing royalties.

devotes sufficient funds to support its franchise system

22.
Contrac
ts

23.
Acknow
ledgme
nt of
Receipt