48th Annual IFA Legal Symposium May 3-5, 2015 Chicago Marriott Downtown Magnificent Mile Chicago, IL legalsymposium.franchise.org 2015 LEGAL SYMPOSIUM TASK FORCE Thank you to this year’s task force for helping us to develop and deliver another compelling and dynamic program addressing the latest legal and regulatory developments affecting franchise businesses. Chairman: Amy Cheng Partner Cheng Cohen LLC Vice Chair: Jan Gilbert Principal Gray Plant Mooty Vice Chair Task Force Members: Jason Adler VP and General Counsel Cellairis Franchise, Inc. Gary Batenhorst Partner Cline Williams Wright Johnson & Oldfather Douglas Berry Attorney at Law Graham & Dunn Lou Chronowski Member Dykema Gossett PLLC F. Joseph Dunn, CFE Partner FisherZucker LLC Marisa Faunce Partner Plave Koch PLC Alan Greenfield Shareholder Greenberg Traurig, LLP John Haraldson Vice President and Division General Counsel Service Master Company Leonard MacPhee Partner Perkins Coie LLP Perry McGuire Counsel Smith, Gambrell & Russell, LLP Judith Rost Partner Alexander Holburn Beaudin + Lang LLP Gregg Rubenstein Partner Nixon Peabody Brian Schnell, CFE Partner Faegre Baker Daniels LLP Gillian Scott Partner Osler, Hoskin & Harcourt LLP Courtney Seely General Counsel Consumer Capital Partners Geoffrey Shaw Partner Cassels Brock & Blackwell LLP Robert Smith Partner Wiley Rein LLP Dear Colleagues: It is my distinct honor to serve as the Task Force Chair for the 48th Annual IFA Legal Symposium and it’s with great pleasure that I welcome you to this year’s event. I’m especially happy to host you in my home town, The Windy City. We have worked hard to develop compelling programming for the 2015 event that will to allow you to engage, discuss, learn and network with a wide variety of your peers. I know you’ll have many takeaways to benefit you professionally and I hope a few experiences that you enjoy personally. It’s been an eventful year in franchising since we last gathered and our Task Force has been busy planning sessions, panel discussions, keynotes and other presentations for this May meeting. As IFA Chair Steve Caldeira Amy Cheng says, never before has the franchising business model been under such a multi-pronged attack. We, as legal counsel, are largely on the front lines of this battle and I, for one, look forward to the challenge of protecting our industry. The franchise environment is increasingly convoluted – with the pending joint employer issues being pressed by the NLRB and new healthcare regulations just to name two key issues – so it’s our goal to arm you at the Legal Symposium with “boots on the ground” knowledge on these and other issues so you can best protect your clients. Knowing that we need to use your time and resources efficiently and make every second worthwhile, the 2015 Task Force has decided to shake up our gathering just a bit. In addition to attending as many sessions as you can, we encourage you to enjoy some of The Windy City’s unique offerings before the Symposium heads back to our nation’s capitol in 2016 – take a stroll down Miracle Mile, visit the lake front and Navy Pier, or take in one of our world-class museums or shows. In fact, we invite you to kick off the Symposium with us at the original Gino’s Pizza downtown. What better welcome to The Windy City than Chicago style pizza? On behalf of the entire Task Force, welcome to the 2015 IFA Legal Symposium in Chicago; we know these three days will be time well spent! Please don’t hesitate to contact any of us with questions or comments. Sincerely, Amy Cheng Partner, Cheng Cohen LLC 2015 Legal Symposium Chair SPONSORS We express our sincere thanks to the following IFA members for their support of this year’s Legal Symposium program: Susan Tegt Corporate Counsel Anytime Fitness, LLC and Waxing the City Worldwide, LLC Michael Joblove Shareholder Genovese Joblove & Battista C. Griffith Towle Attorney Bartko, Zankel, Bunzel, & Miller David Kaufmann Senior Partner Kaufmann Gildin & Robbins LLP Phillip Wharton Chief Legal Officer Coverall Health-Based Cleaning System Jeremy Liebman Senior Counsel ShelfGenie Tao Xu Partner DLA Piper LLP (US) WHO SHOULD ATTEND? IFA’s 48th Annual Legal Symposium was designed by a task force of member volunteers with a particular emphasis on how legal and regulatory issues affect the everyday business operations of the franchise system. The program will provide value and real-world solutions to both business executives and their franchise legal partners. We will focus on the practical use of the law and the how-to’s for navigating today’s business and regulatory environment. This year’s Legal Symposium will be a training ground for what business executives and legal counsel need to know and how to put it into practice. Featuring expert speakers and timely content, our Symposium is a “must attend” event for: 2 2015 IFA LEGAL SYMPOSIUM • All attorneys interested in franchise law; • In-House counsel; • Franchise CEOs; • Franchise development and sales executives; • Franchise legal and compliance officers; • Paralegals; • Franchise administrators; • Franchisees interested in learning more about the legal and business aspects of franchising • All others concerned with franchising’s legal, regulatory and business issues. SCHEDULE OF EVENTS SUNDAY, MAY 3 3:00 pm – 7:00 pm Registration Desk Open 3:30 pm – 5:00 pm Legal Legislative Committee 5:30 pm – 7:00 pm Welcome Reception New off-site location this year! You won’t want to miss out on this great networking opportunity at the Original Chicago Deep Dish Pizza, Gino’s East. 7:30 pm Speakers’ Networking Event Invite only, must RSVP MONDAY, MAY 4 8:00 am – 6:00 pm Registration Desk Open 8:00 am – 8:30 am Continental Breakfast 8:30 am – 10:15 am Opening General Session Welcome: Melanie Bergeron, CFE, Chairman of the Board, Two Men and A Truck International, Inc.; Amy Cheng, Partner, Cheng Cohen, LLC, 2015 Program Chair Keynote Presentation: Labor/Employment Law Collides with Franchise Law…Holy Cow! Where Are We Going? Franchise Law has collided with Employment and Labor Law. In Massachusetts, the Wage Hour Law has been interpreted to say that franchisees may be the employees of their franchisors—a de facto re-write of the franchise agreements involved. The General Counsel of the National Labor Relations Board believes a franchisor and their franchisees may be joint employers of the franchisees’ employees for the purposes of the National Labor Relations Act. And the newly appointed Director of the Wage Hour Division of the Department of Labor, economist David Weil, has written a book, The Fissured Workplace, which questions whether franchisors should be responsible for the wage hour policy and the general employment law compliance of their franchisees. Where are we going? Are we about to see a change that will dramatically affect the basic economics of the franchise relationship? A franchise economist, a labor relations expert, a labor/ employment attorney and a franchise attorney will discuss the issues involved, and past law and current trends, looking to read the tea leaves and divine where we are going and what you need to know to advise your franchise clients. • MONDAY, MAY 4 (CONT’D.) • 10:15 am – 10:30 am Refreshment Break 10:30 am – 11:45 am Concurrent Sessions (All concurrent sessions are offered twice with the exception of the Basics Track sessions.) Considerations and Traps for Public Franchisors and Franchise Systems Going Public • • • Considerations for a franchisor going public, including ownership structure and disclosure to franchisees. Impact of securities laws on communication and disclosure, including timing issues with registration and amendment filings. Impact of franchise laws on public franchisors, such as issues with obtaining a parent guaranty, and disclosing earnings and litigation information. Moderator: Rebekah Prince, Partner, Barnes & Thornburg Speakers: Jordan Zucker, Associate General Counsel, AAMCO Transmissions, Inc.; Sarah Yatchak, Senior Attorney, Buffalo Wild Wings; Kara MacCullough, Shareholder, Greenberg Traurig LLP The Top 5 Mistakes Made by Franchisors Expanding Internationally – How You Can Learn From Them So You Don’t Repeat Them Some of the major points that will be addressed in this program are: • Planning deficiencies of front end issues-i.e. prospect due diligence, intellectual property protection, market viability studies. • Inadequate franchisee training and support, and adaption of the business to their market. • Failure to understand how local laws, including real estate costs and challenges, will affect the profitability of a franchise. Underestimating feasibility and cost of supplying franchisees. Oversight of end of franchise issues in the franchise agreement. Moderator: Jeremy Liebman, General Counsel, ShelfGenie Speakers: Melissa Rothring, General Counsel, Huddle House, Inc.; Beata Krakus, Officer, Greensfelder Hemker & Gale, P.C.; Carl Zwisler, Principal, Gray Plant Mooty Hot Issues in Litigation • • • • Session will cover the decisions with the biggest and most recent impact in franchising. The latest in vicarious liability; venue; restrictive covenants and potential fraud claims will be discussed. How do these decisions impact the substance and strategy of the litigator’s case? What long term impact do the decisions have on the franchise model? Moderator: Michael Joblove, Shareholder, Genovese Joblove and Battista, P.A. Speakers: Kevin Shelley, Partner, Kaufmann Gildin & Robbins LLP; Scott Korzenowski, Partner, Dady & Gardner, P.A. Top 10 Tips for Securing Swift Franchise Registrations and Renewals/Panel of Regulators • • • • How to effectively and efficiently manage initial registrations and renewal Expert tips for engaging and working with state regulators Navigating state registrations and renewals in the era of limited state budgets Tips for reducing registration and renewal expenses Moderator: Lou Chronowski, Member, Dykema Gossett PLLC Speakers: Patty Hagner, Franchise Examiner, Office of the Illinois Attorney General; Bette Peterson, Franchise Analyst, Minnesota Department of Commercer; Tim O’Brien, Chief Examiner, VA Division of Securities & Retail Franchising Moderator: Arthur Pressman, Partner, Nixon Peabody Speakers: Norman Leon, Partner, DLA Piper LLP (US); David Sherwyn, John & Melissa Ceriale, Professor of Hospitality Human Resources & Professor of Law, Director Cornell Institute for Hospitality Labor & Employment Relations, Cornell University School of Hotel Administration; Stephen Moore, Chief Economist, The Heritage Foundation; Michael Lotito, Shareholder, Littler Mendelson 2015 2015IFA IFALEGAL LEGALSYMPOSIUM SYMPOSIUM 33 MONDAY, MAY 4 (CONT’D.) The Dynamics of the Franchise Relationship in Today’s Business & Regulatory Environment The importance of how a franchisor collaborates with its franchisees is emphasized more now than ever before as we navigate through recent business and regulatory developments. The “devil is in the details” though when a franchisor considers the following: • What role, if any, should the franchise agreement play in the culture of a franchise system? • Should a franchisor consider changes to its franchise agreement to be more balanced to reflect an attitude of collaboration with franchisees versus “command and control?” • Do those changes impact or weaken a franchisor’s obligation and right to protect the brand? • What changes should a franchisor consider to its franchise agreement, its operations manual and the manner in which it relates to franchisees in light of “joint employer” and other regulatory concerns? • Will any of these dynamics and how a franchisor addresses them matter to franchisees and franchise candidates? Moderator: Brian Schnell, CFE, Partner, Faegre Baker Daniels LLP Speakers: Aziz Hashim, President & CEO, NRD Holdings, LLC; Catherine Monson, CFE, CEO, FASTSIGNS International; Ann Hurwitz, CFE, Partner, Baker & McKenzie Advanced Franchise Agreement and FDD Drafting Techniques Too many franchise agreements reflect norms, practices and precepts of the 20th century, not the 21st, and thus fail to address (or inadequately address) critical issues which will arise over the 10 or 20 year term of the typical franchise agreement. In this program, geared to in-house and outside counsel tasked with preparing or overhauling franchise agreements and disclosure documents, we will address the following subjects for you and give you valuable take-home materials: • How should franchise agreements address the “franchisor as joint employer/co-employer of its franchisees and/or their employees issue? • How must franchisor rights to the internet, non-traditional locations and national/regional accounts be addressed? • Why does your current agreement’s provision addressing what forms of payment your franchisees must accept omit the form of payment which will dominate within five years? • How can franchise agreements be geared to avoid litigation or, if it is forthcoming, shape a favorable outcome? • How can the FDD lawfully be used as a key marketing tool for franchisors? • What is the latest on what a franchisor can and cannot set forth as a financial performance representation in Item 19 of their Franchise Disclosure Documents? Moderator: David J. Kaufmann, Senior Partner, Kaufmann Gildin & Robbins, LLP Speakers: Scott Toop, SVP, General Counsel & Secretary, Wendy’s; Melanie Bootes, Counsel, KFC Corporation Basics Track: Structuring a Franchise Network • • • • Learn the basics of conducting an initial client meeting and assessment of franchising as a possibleform of distribution Learn about the alternatives to franchising, as well as the relative advantages and disadvantages of each alternative Learn how to structure franchise systems using single unit and multi-unit models, like sub franchising and area representation, and prepare related agreements Learn the pros and cons of each model and corresponding disclosure requirements Moderator: Perry McGuire, Counsel, Smith, Gambrell & Russell, LLP Speakers: Dean Fournaris, Partner, Wiggin & Dana LLP; Max Schott II, Principal, Gray Plant Mooty 12:00 noon – 1:30 pm Networking Luncheon with IFA Government Relations Update Enjoy this time to get to know other Legal Symposium attendees. IFA’s Government Relations & Public Policy team will join us to provide an up-to-the-minute account of legislative and regulatory issues affecting franchising on both the federal and state levels. (See initial listing for full description on page 4) Moderator: Brian Schnell, CFE, Partner, Faegre Baker Daniels LLP Speakers: Aziz Hashim, President & CEO, NRD Holdings, LLC; Catherine Monson, CFE, CEO, FASTSIGNS International; Ann Hurwitz, CFE, Partner, Baker & McKenzie Restrictive Covenants – Reach for the Stars and Watch the World Slip Through Your Finger • • • 1:45 pm – 3:00 pm Concurrent Sessions Data Privacy and Security: Can Any Brand Sleep at Night? • • • • • The sophisticated criminal enterprise of selling stolen identities and why data breach will get worse before it gets better. Current best practices to protect against data breach and to be prepared to address a breach. Franchisor-Franchisee responsibilities and different views on the role of the franchisor in: setting or recommending standards; requiring specific practices and third party vendors; and inspecting, auditing and enforcing compliance. We will discuss the considerations, pros, cons and risks associated with the various positions. Recent developments in data privacy and security protections and data breach law, to include regulations and laws, case law, and technology. Recent developments in PCI compliance and payment technology and law. Moderator: Len MacPhee, Partner, Perkins Coie, LLP Speakers: Paul Reeve, Risk Manager, Northwest Region, United Parcel Service of America, Inc., UPS Store; Shelly O’Callaghan, Executive Vice President and General Counsel, International Dairy Queen; Sally King, Managing Partner and Co-Founder, NXG Strategies Ethics Course - Investing Franchisees/ Mystery Shopping • • • • Model rules of professional conduct applicable to franchisor investigations/mystery shopping. Franchisor counsel’s communications with franchisee employees. Ethical implications of retaining outside private investigators. Privacy implications of franchisor investigations. Moderator: Cynthia Klaus, CFE, Attorney, Larkin Hoffman Daly & Lindgren Speakers: Meredith Bauer, Corporate Counsel, Anytime Fitness LLC; Brigid Harrington, Associate, Witmer Karp Warner & Ryan, LLP 4 2015 2015 IFA IFA LEGAL LEGAL SYMPOSIUM SYMPOSIUM The Dynamics of the Franchise Relationship in Today’s Business & Regulatory Environment • • Restrictive covenants create a collision course between the public policy goals against restraint of trade and a franchisee’s right to exploit his or her human capital on the one hand and a franchisor’s right to protect its brand, enterprise and proprietary rights on the other. When a franchisor employs overreaching restrictions it may find enforcement efforts difficult. Conversely, when a franchisee competes unfairly by trading on the expertise, reputation and intellectual property of a franchisor, that franchisor must be entitled to enough restraint to protect and maintain its trademark, brand, systems other franchisees. This workshop will present a practical overview of what works and what does not in this razor sharp area of conflict. It will offer the strategic insights of in-house counsel from first knowledge of offending conduct to final solution as well as those of experienced litigation counsel . It will also highlight hot spots throughout the US and North America where extra caution must be taken before seeking to enforce a restrictive covenant. In today’s converging world of services and offerings, the traditional scope of business that can be protected through restrictive covenants is changing right before our eyes. Are traditional geographical, temporal and scope restrictions effective or has the internet and multi-branding changed the game? Alternate solutions and best practices in drafting and enforcing will also be addressed in this minefield area where commercial drafting skills and litigation intersect. Moderator: Geoff Shaw, Partner, Cassels Brock & Blackwell LLP Speakers: Frederic A. Cohen, Partner, Cheng Cohen LLC; Arthur Anastos, Vice President and Managing Counsel Dunkin’Brands, Inc. Life After Termination – Ensuring a Smooth Transition You have just terminated, or are about to terminate, a franchisee, or a franchise agreement is set to expire. Now what? This workshop will address key post-termination franchise agreement terms, including provisions regarding de-identification, transfer of customer lists, post-termination trademark and trade secret use restrictions, non-compete terms, and purchase options. It will also address common ancillary documents such as the collateral assignment of leases and requests for supersedure for telephone numbers, as well as provide practical tips to develop a successful post-termination brand protection process, including sample checklists. Finally, the workshop will discuss posttermination Internet issues, including removing links, listings and references on websites and social media. Moderator: John Haraldson, Vice President and Division General Counsel, ServiceMaster Company Speakers: Karen Marchiano, Counsel, Dentons; Bethany Appleby, Partner, Wiggin and Dana LLP MONDAY, 4 (CONT’D.) MONDAY, MAYMAY 5 (CONT’D.) Walking the FPR Tightrope: Managing the Expectations of Prospective Franchisees, Lenders and Regulators in Preparing Financial Performance Representations • • • • What issues should franchisor lawyers be aware of when drafting financial performance representations to maximize the benefits and minimize the risks to franchisors in using FPRs? What role does a financial performance representation play in a lender’s decision to lend to a franchisee? What kinds of FPR information do lenders find helpful and what information is not helpful in making lending decisions? How do lenders satisfy themselves that the information in a financial performance representation is accurate? What factors do state regulators consider in evaluating financial performance representations? What are the most common factors that lead to rejection of an FPR? What advice do regulators have for franchisor lawyers who prepare financial performance representations and franchisee lawyers who review them? What are the perspectives of franchise lawyers, lenders and regulators on current hot topics in FPRs, including regional variations in FPRs and the use of first year sales and profits information? Moderator: Gary Batenhorst, Partner, Cline Williams Wright Johnson & Oldfather Speakers: Susan Grueneberg, Snell & Wilmer, LLP; Rocco Fiorentino, CFE, President & Chief Executive Officer, Benetrends, Inc.; Dale Cantone, Assistant Attorney General, Maryland Attorney General’s Office Basics Track: Registration • • State franchise registration requirements Additional filing requirements for state addenda, franchise sellers, brokers and advertising materials • Exemptions from registration • Examiner review process and comment letters • Financial statements and additional financial assurance requirements • Consequences for non-compliance Moderator: Marisa Faunce, Partner, Plave Koch PLC Speakers: Charlene York, Attorney, Akerman, LLP; Gerry Wells, CFE, General Counsel, Dessange Group North America 3:30 pm – 4:45 pm Concurrent Sessions • How to Ensure Your Franchisees Knock It Out of the Park • • • • • What are different types/examples of Key Performance Indicators? How do different KPI’s work? What are the benefits and risks of using KPI’s to validate your franchisees’ performance as it relates to a franchised system? What legal benefits and risks are there for using defined KPIs? What happens when franchisees don’t meet the KPIs? Moderator: Jason Adler, VP and General Counsel, Cellaris Franchise, Inc. Speaker: Sarah Walters, Attorney, Perkins Coie LLP; Elliot Ginsburg, Attorney, W. Michael Garner, P.A.; Ronald T. Coleman, Partner, Parker, Hudson, Rainer & Dobbs, LLC Strategic Crisis Management For Today’s Franchise Systems – Planning Ahead to Mitigate Risk and Minimize Adverse Consequences to the Brand When A Crisis Hits • Managing A Crisis Before It Hits – The Best Defense Is A Good Offense – Assess crisis risks, including special risks posed by franchise systems – Develop crisis management and communications plan to prepare for a crisis and identify team to lead through a crisis – Train franchisor’s employees and franchisees to ensure key constituents understand what tools are in place once a crisis occurs – Managing An Actual Crisis And The Ensuing Media Frenzy - “Real Life” Case Studies, Including Social Media Disasters – Legal Considerations – Identifying And Addressing The Legal Aspects Of A Crisis – Direct liability considerations (negligence, breach of contract or express/ implied warranties, etc.) – Vicarious liability considerations (e.g., when does a franchisor cross the line of “too much control”, “joint employer” issues, etc.) 3:00 pm – 3:30 pm Refreshment Break • – Other considerations (e.g., strategy for dealing with regulatory agencies to minimize adverse consequences, franchise contract provisions, etc.) Public Relations Considerations – Meeting The Crisis Head On – Draft public communications narrative and manage it to protect the brand’s reputation, including its’ online reputation – When to respond to the media and when to keep quiet – if you do respond, avoid a “shoot first, ask questions later” policy – Establish internal and external communication channels for addressing the crisis and tailor your message to the consumer (or your key audience) The Aftermath Of A Crisis –Focus on crisis recovery efforts and rebuilding public perception of the brand –Improve existing prevention and response plans (e.g., ask yourself – what was done right, what was done wrong and what could be done better) Moderator: Courtney Seely, General Counsel, Consumer Capital Partners (Smashburger) Speakers: Michael Fox, Managing Partner, ICR; Michael Gray, Partner, Jones Day; Claudia Levitas, General Counsel, Hooters of America, LLC You Mean I Have to Enforce this Provision? Top Provisions You Should Run by Your Litigators • • • • • • Non-Competes Renewal Exclusive Territories Standard setting v. standard suggestions Dispute resolution procedures Choice of governing law Speakers: Derek Ronde, Partner, Cassels Brock & Blackwell LLP; Jim Susag, Attorney, Larkin Hoffman Daly & Lindgren Advanced Franchise Agreement and FDD Drafting Techniques (See initial listing for full description on page 4) Moderator: David J. Kaufmann, Senior Partner, Kaufmann Gildin & Robbins, LLP Speakers: Scott Toop, SVP, General Counsel & Secretary, Wendy’s; Melanie Bootes, Counsel, KFC Corporation 2015 IFA LEGAL SYMPOSIUM 5 MONDAY, MAY 4 (CONT’D.) Top 10 Tips for Securing Swift Franchise Registrations and Renewals/Panel of Regulators TUESDAY, MAY 5 8:00 am – 3:30 pm (See initial listing for full description on page 3) Registration Desk Open Moderator: Lou Chronowski, Member, Dykema Gossett PLLC Speakers: Patty Hagner, Franchise Examiner, Office of the Illinois Attorney General; Bette Peterson, Franchise Analyst, Minnesota Department of Commercer; Tim O’Brien, Chief Examiner, VA Division of Securities & Retail Franchising 8:00 am – 8:30 am Continental Breakfast 8:30 am – 10:00 am General Session: Judicial Update Is This Really the End? Dealing with Renewal of Franchise Relationships • • • • • What is a nonrenewal and how is it distinct from termination. – Where good cause is required, what constitutes good cause? – Is it a termination or a nonrenewal where the agreement does not have a definite term? Is it a nonrenewal if the franchisee declines the terms offered on renewal or fails to satisfy conditions to renewal offer (e.g., does not provide requisite notice, does not timely sign, does not cure existing default?) Is there such a thing as “constructive nonrenewal” and are there limits on how substantial changes may be in the agreement that is offered on renewal from the one that is about to expire, e.g., – Exclusive territory vs. nonexclusive territory. – Large territory vs. smaller territory. – Increased royalty rates. – Substantial upgrades to facilities. Dealing with notice requirements of state franchise relationship statutes. – Practical suggestions to make sure notice is timely provided. – Can term be extended to satisfy notice requirements? What contractual renewal rights should be provided in the franchise agreement. Examination of best practices. Moderator: Dan Oates, Attorney, Miller Nash Graham & Dunn Speakers: David Byers, Director, Corporate Counsel, Starbucks Coffee Company; Victoria Blackwell, CFE, Senior VP Talent & Chief Legal Officer, Papa Murphy’s International Inc. Basics Track: Disclosure: U.S. Franchise Disclosure Law • • • • • • • FTC pre-sale disclosure requirements: what is it and who is entitled to it Federal exemptions and exclusions. Content of the FDD. Collecting data and updating the FDD. Item 19 financial performance representations and supplemental FPRs. Required financial statements. Material change amendments. Moderator: Max Staplin, Associate, FisherZucker, LLC Speakers: Donna Christopherson, Senior Franchise Counsel, The Dwyer Group; Connor Boyle, Legal Director, Franchise & Litigation, Pla-Fit Franchise, LLC. 5:00 pm – 6:30 pm Networking Reception 7:00 pm Newcomers/First-Timers Dinner You won’t want to miss this amazing venue featuring the largest draft beer selection in Chicago! (Additional fee applies) 6 2015 IFA LEGAL SYMPOSIUM Rather than just summarize recent cases, we will identify key franchise legal trends that are impacting the franchise community and examine what the most important cases mean for the future of franchising’s legal and businesses operations. Expert speakers will cover trends in the franchise relationship, compliance, dispute resolution, registration, disclosure, antitrust, professional responsibility and other important issues. Speakers: Robert F. Salkowski, Partner Zarco, Einhorn, Salkowski & Brito, P.A.; Trish Treadwell, Partner, Parker, Hudson, Rainer & Dobbs, LLC. 10:00 am – 10:15 am Refreshment Break 10:15 am – 11:30 am Concurrent Sessions Data Privacy and Secuirty: Can Any Brand Sleep at Night? (See initial listing for full description on page 4) Moderator: Len MacPhee, Partner, Perkins Coie, LLP Speakers: Paul Reeve, Risk Manager, Northwest Region, United Parcel Service of America, Inc., UPS Store; Shelly O’Callaghan, Executive Vice President and General Counsel, International Dairy Queen; Sally King, Managing Partner and Co-Founder, NXG Strategies Ethics Course - Investing Franchisees/ Mystery Shopping (See initial listing for full description on page 4) Moderator: Cynthia Klaus, CFE, Attorney, Larkin Hoffman Daly & Lindgren Speakers: Meredith Bauer, Corporate Counsel, Anytime Fitness LLC; Brigid Harrington, Associate, Witmer Karp Warner & Ryan, LLP Negotiating an International Deal – Getting to Yes for Long-Term Success This session examines some of the issues that often arise in the negotiation of international franchise deals, and suggests some solutions which may help the parties bridge their differences and build the foundation of a long-lasting and successful relationship. The session is designed to be interactive, and will offer perspectives from both franchisors and franchisees. The issues covered will include: • • • • • • Scope of exclusivity granted to the franchisee; Development schedule; Dispute resolution and governing law; Transfer restrictions and other related issues; Guarantees; and Indemnities. Moderator: Don Wray, International Counsel, Little Caesars Enterprises, Inc. Speakers: Michael Brennan, Partner, DLA Piper LLP (US); John Pratt, Partner, Hamilton Pratt Restrictive Covenants – Reach for the Stars and Watch the World Slip Through Your Fingers (See initial listing for full description on page 4) Moderator: Geoff Shaw, Partner, Cassels Brock & Blackwell LLP Speakers: Frederic A. Cohen, Partner, Cheng Cohen LLC; Arthur Anastos, Vice President and Managing Counsel Dunkin’Brands, Inc. Life After Termination – Ensuring a Smooth Transition (See initial listing for full description on page 4) Moderator: John Haraldson, Vice President and Division General Counsel, ServiceMaster Company Speakers: Karen Marchiano, Counsel, Dentons; Bethany Appleby, Partner, Wiggin and Dana LLP Basics Track: Handling Defaults and Terminations • • • • • Curable defaults versus automatic terminations. Notices to cure. Decision to terminate or not. Steps that need to be followed in terminating. Post termination provisions. Moderator: Judy Rost, Partner, Alexander Holburn Beaudin & Lang LLP Speakers: Dawn Newton, Partner, Donahue Fitzgerald LLP; Glenn Plattner, Attorney, Bryan Cave LLP; Meredith Flynn, CFE, VP of Financial Services & Franchise Compliance, Alliance Franchise Brands LLC 11:45 am – 1:00 pm Boxed Luncheon & Roundtables Our roundtables provide a unique opportunity for you to sit down with your peers and share tips, challenges, solutions and best practices on a wide-range of franchise law and business topics. 1:30 pm – 2:45pm Concurrent Sessions How to Ensure Your Franchisees Knock It Out of the Park (See initial listing for full description on page 5) Moderator: Jason Adler, VP and General Counsel, Cellaris Franchise, Inc. Speaker: Sarah Walters, Attorney, Perkins Coie LLP; Elliot Ginsburg, Attorney, W. Michael Garner, P.A.; Ronald T. Coleman, Partner, Parker, Hudson, Rainer & Dobbs, LLC Strategic Crisis Management For Today’s Franchise Systems – Planning Ahead to Mitigate Risk and Minimize Adverse Consequences to the Brand When A Crisis Hits (See initial listing for full description on page 5) Moderator: Courtney Seely, General Counsel, Consumer Capital Partners (Smashburger) Speakers: Michael Fox, Managing Partner, ICR; Michael Gray, Partner, Jones Day; Claudia Levitas, General Counsel, Hooters of America, LLC You Mean I Have to Enforce this Provision? Top Provisions You Should Run by Your Litigators (See initial listing for full description on page 5) Speakers: Derek Ronde, Partner, Cassels Brock & Blackwell LLP; Jim Susag, Attorney, Larkin Hoffman Daly & Lindgren Negotiating an International Deal – Getting to Yes for Long-Term Success (See initial listing for full description on page 6) Moderator: Don Wray, International Counsel, Little Caesars Enterprises, Inc. Speakers: Michael Brennan, Partner, DLA Piper LLP (US); John Pratt, Partner, Hamilton Pratt Walking the FPR Tightrope: How Franchisor Lawyers Can Deal With The Expectations of Prospective Franchisees, Lenders and State Regulators When Preparing Financial Performance Representations (See initial listing for full description on page 5) Moderator: Gary Batenhorst, Partner, Cline Williams Wright Johnson & Oldfather Speakers: Susan Grueneberg, Snell & Wilmer, LLP; Rocco Fiorentino, CFE, President & Chief Executive Officer, Benetrends, Inc.; Dale Cantone, Assistant Attorney General, Maryland Attorney General’s Office Basics Track: Franchise Litigation - Frequently Arising Issues in Litigation • • • • • Before the lawsuit – procedural issues, including venue, forum and choice of law considerations. ADR issues, including if/when to mediate and arbitration. Common claims and defenses. Remedies, including damages, injunction and other equitable relief. Themes and strategies for success at trial or arbitration. Moderator: C. Griffith Towle, Bartko, Zankel, Bunzel, & Miller Speakers: Keith Klein, Attorney, Bryan Cave, LLP; Justin Klein, Partner, Marks & Klein, LLP 2:45 pm – 3:00 pm Refreshment Break TUESDAY, MAY 5 (CONT’D.) The Top 5 Mistakes Made by Franchisors Expanding Internationally – How You Can Learn From Them So You Don’t Repeat Them (See initial listing for full description on page 3) Moderator: Jeremy Liebman, General Counsel, ShelfGenie Speakers: Melissa Rothring, General Counsel, Huddle House, Inc.; Beata Krakus, Officer, Greensfelder Hemker & Gale, P.C.; Carl Zwisler, Principal, Gray Plant Mooty Hot Issues in Litigation (See initial listing for full description on page 3) Moderator: Michael Joblove, Shareholder, Genovese Joblove and Battista, P.A. Speakers: Kevin Shelley, Partner, Kaufmann Gildin & Robbins LLP; Scott Korzenowski, Partner, Dady & Gardner, P.A Is This Really the End? Dealing with Renewal of Franchise Relationships (See initial listing for full description on page 6) Moderator: Dan Oates, Attorney, Miller Nash Graham & Dunn Speakers: David Byers, Director, Corporate Counsel, Starbucks Coffee Company; Victoria Blackwell, CFE, Senior VP Talent & Chief Legal Officer, Papa Murphy’s International Inc. Basics Track: Expanding Internationally • • • • • • • Assessing a franchisor’s readiness for international expansion. Selecting the countries for development. Deciding on the deal structure Choosing the right franchisee. Negotiating the deal. Understanding local law and franchise registration/ disclosure obligations and trademark requirements. Understanding the applicability of domestic law and its impact on an international franchise agreement. 3:00 pm – 4:15 pm Concurrent Sessions Moderator: Robert Smith, Partner, Wiley Rein LLP Speakers: Marc Mushkin, CFE, Vice President of International Franchise Sales & Development, International, CKE Restaurant Holdings, Inc.; Dominic Mochrie, Partner, Osler, Hoskin & Harcourt, LLP Considerations and Traps for the Unwary Franchisor 4:15 pm Legal Symposium Adjournment (See initial listing for full description on page 3) Moderator: Rebekah Prince, Partner, Barnes & Thornburg Speakers: Jordan Zucker, Associate General Counsel, AAMCO Transmissions, Inc.; Sarah Yatchak, Senior Attorney, Buffalo Wild Wings; Kara MacCullough, Shareholder, Greenberg Traurig LLP 48th Annual IFA Legal Symposium May 3-5, 2015 Chicago Marriott Downtown Magnificent Mile Chicago, IL 2015 IFA LEGAL SYMPOSIUM 7 BONUS FEATURES LITIGATORS Each year our task force strives to enhance the Legal Symposium experience to deliver real-world solutions and top-of-the-line value to all who attend. Take a look below at some of the highlights we think you’ll enjoy at our 48th Annual Legal Symposium. As franchise counsel it is your responsibility to mitigate risk, but sometimes, despite best efforts, disputes arise. Programming of interest to franchise litigators has been developed to ensure that this important class of lawyers understands how to safeguard the brands they represent and answer breaches of conduct swiftly and appropriately. This year we feature the following topics: BASICS TRACK Our Basics Track is designed to provide those who are new to franchising, or those simply in need of a refresher course, a solid foundation in the principles of franchise law. A different topic will be offered during each breakout session time slot. The Basics Track is comprised of the following topics: • • • • • • • • • Disclosure & Registration Best Practices in Handling Default and Terminations Mergers & Acquisitions Trademarks & Intellectual Property Franchise Litigation Expanding Internationally Please refer to the program schedule for further details about each session. ETHICS COURSE Please refer to the program schedule for further details about each session. INTERNATIONAL FOCUS Even in a challenging economic and regulatory environment, franchising’s reach continues to extend across the globe. We are offering several internationally focused sessions to bring you up to speed on the legal and business issues you need to know about to protect and build your brand worldwide. This year we are pleased to feature the following international topics: • • • The Top 5 Mistakes Made by Franchisors Expanding Internationally – How You Can Learn From Them So You Don’t Repeat Them Negotiating an International Deal – Getting to Yes for Long-Term Success Basics Track – Expanding Internationally Please refer to the program schedule for further details about each session. Hot Issues in Litigation Restrictive Covenants – Reach for the Stars and Watch the World Slip Through Your Fingers You Mean I Have to Enforce this Provision? The Top Provisions You Should Run by Your Litigators We are offering one class on Monday afternoon and Tuesday morning that will be eligible for ethics credits. An examination investing franchisees/mystery shopping will look at the relationship from a variety of perspectives: • Model rules of professional conduct applicable to franchisor investigations/mystery shopping. • Franchisor counsel’s communications with franchisee employees. • Ethical implications of retaining outside private investigators. • Privacy implications of franchisor investigations. LEGAL SYMPOSIUM NEWCOMERS We want to welcome all young associates, paralegals, those under 35 years of age and/or have been practicing franchise law for less than 5 years into the fold by offering a special dinner designed with their particular professional development needs in mind. A Newcomer/First Time Attendee Dinner has been scheduled at Howells and Hood, located in the Tribune Tower. While all attorneys will benefit from participating in the general session and workshops offered, the Basics Track has been developed to focus on many of the core issues young attorneys, associates and paralegals need to be well-versed in advising the clients they serve. IBA/IFA JOINT CONFERENCE Do you want to learn more about the current issues facing the international franchise law community? Extend your stay in Chicago to participate in the 31st Annual IBA/IFA Joint Conference, May 5-6, 2015 at the Marriott Magnificent Mile. Partnering with the International Bar Association’s Franchising Committee each year ensures we offer a comprehensive program focused on the latest international franchise law issues. Interactive sessions include a “News from Around the World” update during which expert international franchise law professionals provide a roundup of developments in franchising from some of the world’s hottest jurisdictions. Don’t miss the annual IBA/IFA Conference Reception and Dinner which many regard as one of the premier networking events offered all year. By attending the IBA/IFA Joint Conference you will also earn additional CLE and CFE credits. There is a separate fee to participate in this program. For more information and to register online visit www.franchise. org and click on IBA/IFA Conference under the Events tab. 48th Annual IFA Legal Symposium May 3-5, 2015 Chicago Marriott Downtown Magnificent Mile Chicago, IL 8 2015 IFA LEGAL SYMPOSIUM SOCIAL & NETWORKING EVENTS In addition to premier educational content, one of the most important benefits of participating in the IFA Annual Legal Symposium is the opportunity to build relationships with franchise attorneys and business executives. Several networking events are offered during the course of the program. Take advantage of your time away from the office by joining your colleagues at the following social events where the only thing on the agenda is building your portfolio of contacts in the franchise industry. Here are some of the highlights of the networking opportunities: • • • • Welcome Reception – Sunday, May 3 at Gino’s East, the Original Chicago Deep Dish Pizza. This offsite reception offers a chance to make new connections while enjoying Chicago’s legendary pizza! Networking Luncheon – Monday, May 4 Annual Networking Reception – Monday, May 4 Newcomer/First-Time Attendee Dinner –Monday, May 4 at Howells and Hood in the Tribune Tower. You won’t want to miss this amazing reception venue that features the largest draft beer selection in Chicago! (Additional fee applies). REGISTRATION DESK SCHEDULE Our Registration Desk will open Sunday, May 3 from 3:00 pm – 7:00 pm. Registration re-opens Monday, May 4 from 8:00 am until 6:00 pm and again Tuesday, May 5 beginning at 8:00 am and closing at 3:30 pm. SYMPOSIUM PREREGISTRATION Pre-registration for the Legal Symposium closes Friday, April 24, 2015. If you are not able to meet this deadline please register at our on-site Registration Desk during official Registration hours. On-site registrations will be subject to an additional $50 fee. Advanced registration for individual concurrent sessions is not required – rooms will be set to maximum capacity and seats are available on a first-come, first-served basis. To register for all programs and events described in this brochure, by visiting legalsymposium. franchise.org. WHAT DOES YOUR REGISTRATION FEE INCLUDE? • • • • • • • COURSE MATERIALS Course materials will be made available on a flash drive and distributed with other program credentials at our onsite Registration Desk beginning Sunday, May 3. We will make all panel course materials, PowerPoint presentations and our advanced registration list (comprised of registrations received on or before April 24) available to attendees by email and on the IFA website at least 10 days in advance of the Symposium. CLE CREDITS Your attendance at IFA’s Legal Symposium qualifies you for Continuing Legal Education Credits (CLEs) in most states. Details on how to earn credits will be available on-site at the Registration Desk. ICFE CREDITS You will earn 300 Education Credits and 100 Participation Credits toward the completion of the Certified Franchise Executive (CFE) accreditation by attending the IFA’s 2015 Annual Legal Symposium. WHY CHICAGO Chicago is more than just a big city. Besides its striking downtown, which includes some of the tallest buildings in the world, Chicago has a distinctive coastline, hundreds of vibrant parks and more than 200 unique neighborhoods. In Chicago you will find incredible shopping on The Magnificent Mile, a Michelin-rated dining scene and exciting nightlife. The city also vaunts more than 40 museums, five regional Tony Award-winning theaters and, no matter the season, a sports team to cheer to victory. Chicago’s diverse neighborhoods and unique city culture represent more than 100 countries. Visit ChooseChicago.com for more information and start planning your visit now! HOTEL INFORMATION You may reserve your hotel room at the Chicago Marriott Downtown by visiting https://aws.passkey.com/ event/12105815/owner/1361/home or calling 1-877-3030104 and indicating you are attending the IFA 2015 Legal Symposium. Our room rate for a standard room is $299 (single or double) and includes internet access in the guest rooms. The deadline for making reservations is April 9, 2015 (or when the IFA room block is filled, whichever is first.) Once the room block is sold out, reservations will be accepted based on availability at the group rate. The Marriott is in a prime location, right in the heart of downtown Chicago at 540 N. Michigan Avenue. For more information about the Marriott, visit http://www.marriott.com/hotels/travel/chidtchicago-marriott-downtown-magnificent-mile/. Entry into all educational sessions; Extensive course materials; Welcome Reception Sunday, May 3; Continental Breakfast Monday, May 4 and Tuesday, May 5; Refreshment Breaks Monday, May 4 and Tuesday, May 5; Lunch Monday, May 4 and Tuesday, May 5; and Networking Reception Monday, May 4. 2015 IFA LEGAL SYMPOSIUM 9 SCHEDULE-ATA-GLANCE Sunday, May 3 3:00 pm – 7:00 pm Registration Desk Open 3:30 pm – 5:00 pm Legal Legislative Committee 5:30 pm – 7:00 pm Welcome Reception (Gino’s East) 7:30 pm Speakers’ Networking Event (by invitation only) 3:30 pm – 4:45 pm Concurrent Sessions 1. 2. How to Ensure Your Franchisees Knock It Out of the Park Strategic Crisis Management For Today’s Franchise Systems – Planning Ahead to Mitigate Risk and Minimize Adverse Consequences to the Brand When A Crisis Hits 3. You Mean I Have to Enforce this Provision? Top Provisions You Should Run by Your Litigators 4. Advanced Franchise Agreement and FDD Drafting Techniques 5. Top 10 Tips for Securing Swift Franchise Registrations and Renewals/Panel of Regulators 6. Is This Really the End? Dealing with Renewal of Franchise Relationships 7. Basics Track: Disclosure: U.S. Franchise Disclosure Law 5:00 pm – 6:30 pm Networking Reception 7:00 pm Newcomers/First-Timers Dinner (Howells and Hood) Additional fee applies Monday, May 4 Tuesday, May 5 8:00 am – 6:00 pm Registration Desk Open 8:00 am – 8:30 am Continental Breakfast 8:30 am – 10:15 am Welcome & General Session * 8:30 am – 8:45 am Welcome by IFA Chair/President & Program Chair * 8:45 am – 10:15 am Session Program 8:00 am – 3:30 pm 8:00 am – 8:30 am 8:30 am – 10:00 am 10:00 am – 10:15 am Registration Desk Open Continental Breakfast General Session: Judicial Update Refreshment Break 10:15 am – 11:30 am Concurrent Sessions 10:15 am – 10:30 am Refreshment Break 10:30 am – 11:45 am Concurrent Sessions 1. Considerations and Traps for Public Franchisors and Franchise Systems Going Public 2. The Top 5 Mistakes Made by Franchisors Expanding Internationally – How You Can Learn From Them So You Don’t Repeat Them 3. Hot Issues in Litigation 4. Top 10 Tips for Securing Swift Franchise Registrations and Renewals/Panel of Regulators 5. The Dynamics of the Franchise Relationship in Today’s Business & Regulatory Environment 6. Advanced Franchise Agreement and FDD Drafting Techniques 7. Basics Track: Structuring a Franchise Network 12:00 noon – 1:30 pm Networking Luncheon with IFA Government Relations Update 1:45 pm – 3:00 pm 1. 2. 3. Concurrent Sessions Data Privacy and Security: Can Any Brand Sleep at Night? Ethics Course - Investing Franchisees/Mystery Shopping The Dynamics of the Franchise Relationship in Today’s Business & Regulatory Environment 4. Restrictive Covenants – Reach for the Stars and Watch the World Slip Through Your Finger 5. Life After Termination—Ensuring a Smooth Transition 6. Walking the FPR Tightrope: Managing the Expectations of Prospective Franchisees, Lenders and Regulators in Preparing Financial Performance Representations 7. Basics Track: Registration 3:00 pm – 3:30 pm Refreshment Break 1. 2. 3. 4. Data Privacy and Security: Can Any Brand Sleep at Night? Ethics Course - Investing Franchisees/Mystery Shopping Negotiating an International Deal – Getting to Yes for Long-Term Success Restrictive Covenants – Reach for the Stars and Watch the World Slip Through Your Fingers 5. Life After Termination—Ensuring a Smooth Transition 6. Basics Track: Handling Defaults and Terminations 11:45 am – 1:00 pm Boxed Luncheon & Roundtables 1:30 pm – 2:45pm Concurrent Sessions 1. 2. How to Ensure Your Franchisees Knock It Out of the Park Strategic Crisis Management For Today’s Franchise Systems – Planning Ahead to Mitigate Risk and Minimize Adverse Consequences to the Brand When A Crisis Hits 3. You Mean I Have to Enforce this Provision? Top Provisions You Should Run by Your Litigators 4. Negotiating an International Deal – Getting to Yes for Long-Term Success 5. Walking the FPR Tightrope: Managing the Expectations of Prospective Franchisees, Lenders and Regulators in Preparing Financial Performance Representations 6. Basics Track: Franchise Litigation - Frequently Arising Issues in Litigation 2:45 pm – 3:00 pm Refreshment Break 3:00 pm – 4:15 pm 7. Concurrent Sessions Considerations and Traps for Public Franchisors and Franchise Systems Going PublicThe Top 5 Mistakes Made by Franchisors Expanding Internationally – How You Can Learn From Them So You Don’t Repeat Them 8. Hot Issues in Litigation 9. Is This Really the End? Dealing with Renewal of Franchise Relationships 10. Basics Track: Expanding Internationally 4:15 pm Legal Symposium Adjournment 48th Annual IFA REGISTRATION INFORMATION Legal Symposium 48 TH ANNUAL LEGAL SYMPOSIUM May 3-5, 2015 Chicago Marriott Downtown Magnificent Mile Chicago, IL The registration fee includes course instruction and materials, two continental breakfasts, two luncheons, two cocktail receptions and refreshment breaks. Advance sign-up for individual concurrent sessions is not required. REGISTRATION FEES Registration fees are per person and include course materials on a flash drive. IFA Member $925 1-3 registrants when registering from the same company together............................................. 48th Annual IFA Legal Symposium May 3-5, 2015 Chicago Marriott Downtown Magnificent Mile Chicago, IL 4 or more registrants when registering from the same company together................................$875 Non-Member $1,525 Individual registrant ...................................................................................................................................... Newcomers’ & First-Time Attendees’ Dinner Ticket (Monday night) .............................................. $120 QUESTIONS? Call 202-628-8000 or visit legalsymposium.franchise.org Grand Total $ __________________ Cancellation Policy: Full refunds (minus a $50 administration fee) will be granted for registrations cancelled at least 14 days in advance of the Symposium. A 50% refund (minus a $50 administration fee) will be granted for registrations cancelled 7-14 days in advance. No refunds will be permitted for cancellations less than 7 days in advance or for “no shows.” All requests for cancellations must be made in writing. Substitutions are permitted at any time at an additional fee of $50. REGISTER NOW legalsymposium.franchise.org 1900 K Street, NW, Suite 700 Washington, DC 20006 USA 48th Annual IFA Legal Symposium REGISTER ONLINE TODAY! VISIT: May 3-5, 2015 Chicago Marriott Downtown Magnificent Mile Chicago, IL legalsymposium.franchise.org 48th Annual IFA Legal Symposium May 3-5, 2015 Chicago Marriott Downtown Magnificent Mile Chicago, IL