Franchising, licensing, and distribution

Overview

McDonald Hopkins’ Franchising, Licensing, and Distribution team combines years of experience representing franchisors and franchisees with expertise in the numerous legal areas that impact every aspect of operating in the franchise industry – providing franchisors and franchisees across the country with the business counseling and legal guidance they need to plan, form, administer, and work through successful long-term business relationships. Our attorneys have provided counsel to some of the nation’s biggest players in the franchise industry, and served as outside counsel to numerous big-name franchisors and franchisees. This knowledge and experience working with clients on both sides of the table gives us unique insight into the challenges that franchisor and franchise owners face and helps us guide our clients through purchasing, establishing, building, restructuring, or selling their franchise business. We also frequently counsel clients on franchise disclosure documents, franchise agreements, area development agreements, gift card programs, leases, financing transactions, licensing and trademark matters, royalty payments, franchise disputes, liquor law matters, and distribution matters.

If you hit any bumps in the road, our team has the experience you need with enforcement and dispute resolution through out-of-court workouts, federal and state court litigation, arbitration or mediation. We also have experience working with financially distressed franchisors and franchisees in workout and financial restructuring transactions, and have represented franchisors, franchisees, and buyers in numerous Chapter 11 bankruptcy cases throughout the country. Our team has specific expertise working with clients in the restaurant industry and significant experience representing lenders in franchise restructuring matters, including lenders that wish to credit bid their debt to purchase a franchise business. We also represent buyers and sellers of franchised businesses in traditional and financially distressed merger and acquisition transactions.

READ MORE

The many services we provide to our franchise, licensing and distribution clients include:

• Start up and relationship planning
• Tax planning, both state and federal
• Termination Rights
• Intellectual property protection and planning
• Drafting of agreements
• Franchise registration and disclosure
• Finance and secured transactions
• Real property related issues
• Litigation
• Compliance with federal and state antitrust laws and laws governing unfair competition
• Operational and Debt Restructuring
• Business relationship counseling, including structure and internal “partnership” disputes
• Mergers and acquisitions
• Employment law counseling
• Employment litigation, including federal and state wage/hour and discrimination claims
• WARN Act
• Union avoidance training
• Employee benefits advice and counseling, including Affordable Care Act issues
• ERISA litigation
• Data security breach prevention, planning, and counseling
• Liens under the Perishable Agricultural Commodities Act
• Defending patent infringement allegations and negotiating patent licensing arrangements
• Preparing and filing for patent protection
• Right of publicity clearance and licensing
• Trademark protection and policing

Franchisors

McDonald Hopkins provides new and existing franchisors with insightful legal guidance on the important documents that are necessary to establish, maintain, and grow a franchise business. We advise on drafting franchise documents and complying with state and federal regulations governing these documents, including franchise disclosure documents, franchise agreements, and area development agreements. It is important that franchisors are aware of the impact of the FTC Franchise rule, and McDonald Hopkins advises its clients on maintaining the proper documentation required to be provided to potential franchisees. In addition, at the state level there are various franchise registration, filing, disclosure, and relationship laws that are imposed on franchisors – and all of these laws vary state-by-state. We help our franchisor clients navigate these laws and regulations, in addition to providing counsel on labor and employment matters, cybersecurity issues, intellectual property, and general business counseling matters.

Franchisees

Whether a client operates a single franchise or manages multiple locations across several states, our team can advise and provide assistance on the review and negotiation of franchise disclosure documents, franchise agreements, leases for real property and equipment, and financing documents. We also advise franchisees on labor and employment matters, tip-credit laws, joint-employer laws, cybersecurity issues, intellectual property, and general business counseling matters.

Liquor Laws

Our Franchising, Licensing, and Distribution team advises restaurants, franchise businesses and distributors in connection with state liquor laws, permit applications, transfers and violations. For clients working to buy or sell a franchise, we assist in structuring transactions to mitigate risks of enforcement actions and to ensure there is no disturbance in liquor service.  If you are a restaurant owner looking to expand or build a new location, we can assist in due diligence for site selection, and review and advise on election laws to change the liquor permit requirements of a jurisdiction.  We also review importing and distribution rules to assure that our clients comply with applicable laws.

Intellectual Property and Licensing

Intellectual property, branding, and licensing are important and sometimes overlooked business challenges when it comes to operating within the franchise industry. Our franchise, licensing, and distribution team includes attorneys with extensive intellectual property experience who can advise clients with respect to building, maintaining, enhancing, and protecting their brands and intellectual property under U.S. and international law. We work with clients in connection with the licensing of their trademarks, copyrights, and patents. When it comes to intellectual property litigation matters, we proactively help clients avoid problems before they arise by conducting full and preliminary trademark, copyright, and patent clearance searches, providing clearance opinions, and utilizing other litigation avoidance techniques.

McDonald Hopkins can also assist clients in FDA-regulated industries – including food, beverage, nutritional supplement, cosmetic, drug and medical companies – with understanding the effect FDA and FTC compliance issues have on intellectual property strategy. This includes understanding FDA regulatory compliance, including labeling and good manufacturing practices (cGMPs). We provide dispute resolution advice to clients in this space, and have successfully defended clients in these industries against claims for patent and trademark infringement, and false advertising and unfair competition under the Lanham Act and state laws in both the federal courts and the ITC.

Distribution

McDonald Hopkins advises franchisors, manufacturers, wine and liquor companies, and others who use third party relationships as a distribution mechanism.  We have experience in working with all aspects of vertical distribution and all vertical distribution formats, including franchising, dealership and distributorship programs, sales representative and commercial agency relationships, commercial licensing and co-branding arrangements, management agreement formats, and direct selling and business opportunity relationships.