Thinking of taking your franchise to the US? Legal advice you need to know…

Exemption based franchising in the USA

Many UK brands are initially put off considering the US when expanding their operations because of the level of bureaucracy and cost of complying with US franchising laws.

Various US franchising laws need to be considered to determine whether they apply in the context of exploratory talks with prospective US investors or multi-unit franchisees.

But every transaction will be subject to such extensive requirements due to the possibility that there may be one or more exemptions that can apply. This can enable UK brands to investigate the potential or get an initial toe hold in the US market with less bureaucracy and at a lower initial cost.

Why Freeths

Freeths LLP is a leading UK law firm, and we have franchise experts in a number of our offices. We have extensive experience in structuring, negotiating and documenting franchise transactions in the UK and internationally, including multinational master franchise, area and regional developer and area representative arrangements, joint ventures and other distribution and brand licensing relationships.

We can provide high level advice to UK brands considering seeking potential investors or market opportunities in the US about the availability of exemption-based franchising.

US laws, and in particular individual state laws, need to be considered on a case-by-case basis to determine whether it may be possible to undertake exemption-based franchising. To do that, Freeths has teamed up with a highly regarded boutique franchise law firm in the US to give UK brands specific advice on whether an exemption-based franchise approach may work for them, without having to develop a full-scale franchise disclosure document.


Franchise Registration States

“The team is very able at managing simple issues with care and attention, and very complex and fluid cases in a sophisticated and commercial manner.”

– Chambers & Partners, 2023

Franchising in the USA

The popularity of franchising and vast market opportunity in the US makes it a very attractive prospect for a UK brand looking to expand its operations. There are various laws applicable to franchising in the US which need to be considered to determine whether they apply in the context of exploratory talks with prospective US investors or multi-unit franchisees.

Many UK brands are initially put off considering the US because of the level of bureaucracy and cost of complying with US franchising laws.

However, not every transaction will be subject to all these requirements due to the possibility that there may be one or more exemptions that can apply. This can enable UK brands to investigate the potential or get an initial toe hold in the US market without the level of bureaucracy and cost of complying with the various US franchise laws.

Introducing exemptions

For a UK brand considering entry to the United States for the purpose of “testing the waters,” the possibility of an exemption may make the market-testing exercise and initial entry into the US considerably more efficient, more cost effective and less burdensome.

Exemptions are highly fact dependent and vary from state to state.

A careful factual review is therefore necessary before concluding that a UK brand can initially offer to sell a franchise in the US without having to comply with applicable regulatory requirements.


What UK companies looking to franchise in Australia need to know

Apart from the impact of COVID-19 on all sectors of business in Australia has over the past 12 months, we have had new Franchise regulations commence on 1 June 2021. The good news is there are still great opportunities for overseas companies to expand their business in Australia with many workers who are unemployed or made redundant looking to franchising as a way to earn an income.

Franchising is well entrenched in Australia with over 90,000 businesses employing over 500,000 people, generating around $155.1 billion in turnover per annum.

It is expected that the sectors revenue will decline by 2.5% with an anticipated drop around 6.8% this financial year 2021/22 largely due to the COVID-19 pandemic and flow-on economic effects. Yet Australia is still an attractive market for overseas systems due to our standard of living consumer spending and our stable economic political and regulatory systems.


The new Franchise Code Regulations came into operation on the 1 June 2021 and apply to all franchise agreements entered into on or after the 1 July 2021 and include a number of key changes for franchisors. View Robert’s simple guide to these changes.

Overseas Franchisors since around 2015 are no longer required to provide a Disclosure Document to its Master Franchisee, or a separate disclosure to its unit franchisees.

A Master franchisee must still comply with the Franchise Code and provide its unit franchisees proper Disclosure (FDD) and a Code compliant franchise agreement.

The cost to upgrade overseas franchise documents (dependent on the jurisdiction) and provide Franchise Code compliant documents generally range from around $8,000.00 to $12,000.00 AUD subject to the model and its complexity.

There are numerous provisions we find that need to be updated in overseas agreements that around the disclosure of supplier rebates, end of term arrangements, online sales, audit of marketing funds, jurisdiction and governing laws, dispute resolution and terminations provisions.

Clear and concise agreements assist in the process of onboarding franchisees and reduce unnecessary negotiations with a franchisees advisor so you can get out to the market.


There are various business entry models for overseas companies to enter the Australian market such as:

  • Master franchising;
  • Direct licensing to a single or multi-unit Franchisee;
  • Area Development Agreements;
  • Partnership, Joint Venture or Partnering Agreements.

Each model has its own pros and cons and seeking advice from a Franchise Specialist is highly recommended to select the right model for a successful roll out of the system.

Robert Toth and his Franchise legal team has over 35 years’ experience advising local and overseas companies in the franchise and corporate sector. We are Members of the Franchise Council of Australia (FCA) the recognized National Franchise body, the IFLA (International Franchise Lawyers Association) and the US Commercial Service, International Advisory Experts (IAE) and the Lawyers Alliance Global Network an alliance of global lawyers.

We know the trends in the market, the local regulatory environment and have a network of consultants in Franchise development, demographic research, leasing and tax advice to assist overseas franchisors and companies to establish their business successfully in the Australian and New Zealand market.


This is the most common model adopted by overseas Franchisors, the advantage is that effectively the obligations, role and responsibilities of the overseas Franchisor are taken up by the Master Franchisee.

The overseas Franchisor does not contract directly with the unit franchisee and therefore, legal liability and any “litigation” risks rest with the Master Franchisee under Australian law.

The Master Franchisee is responsible for compliance with the mandatory Australian Franchise Code to establish its own sites and recruit Franchisees, meet performance criteria, train and support franchisees and meet the costs of establishing infrastructure to ensure the system operates successfully.

The overseas Franchisor may have worldwide brand recognition and systems in place to support the Master Franchisee.

The key ultimately is choosing the right Master Franchisee as this can make or break the successful roll out of the brand.

A disadvantage of Master franchising is that although there are controls via the Master Franchise Agreement, the Franchisor is one step removed from practical control and input into the local unit franchisees as face-to-face management is left primarily to the Master Franchisee.  The Master franchisee therefore needs to not only have the capital resources but also the ability, personality and skills to succeed!


This is where the overseas Franchisor grants rights directly to an individual unit Franchisee in the country which can now more readily be done due to the online environment and systems operating in the cloud.

Here the overseas Franchisor has more direct involvement and control in relation to their unit Franchisee as they contract with the local franchisee directly but at the same time this means the overseas franchisor is directly liable and carries the risk if the franchise fails.

The overseas Franchisor is usually well established and confident in its systems and business format to support the Franchisee from abroad. This model may not be suitable for many business sectors where local on the ground training and support is required.

It may also not be as attractive to prospective franchisees, as they may be concerned about the lack of a local presence by the Franchisor.

The Overseas Franchisor in this case will need to be registered as a foreign Company with the ASIC our corporate regulator or they may set up a fully owned subsidiary entity.

Financially it can be better for the overseas Franchisor as the royalty is paid directly without a split to a Master Franchisee.


This model enables an overseas Franchisor to test the market by appointing an Area Developer whose role is not to actually establish a franchise but act as an agent for the overseas company to find and secure a Master Franchisee or unit Franchisees.

The Area Developer may be given strict performance criteria, but they do not enter into any agreement with a Master or unit Franchisee.

The local unit Franchisees contracts directly with the overseas Franchisor which means that the overseas Franchisor has direct control over its Franchisees.

The Area Developer may be paid a success fee on signing up a franchisee and also paid to provide additional services and support to franchisees.


We have been involved in a number of joint venture partnerships and Limited partnership arrangements which involve careful tax considerations for both the overseas entity and local partnership. A Limited partnership protects the limited partners as all liability rests with the General partner.

This model requires shareholder or partnership agreements to cover the key issues such as capital contribution, distribution of profit, the parties’ roles and responsibilities and also exit rights such as pre-emptive buy out rights and triggers on default.

The benefit here is that the partners each have contributed some equity and they have a vested interest to ensure the success of the business in the market.

Here the overseas Franchisor still remains as an independent entity and is protected from the risk of liability if the business does not succeed.

Where do overseas companies go wrong?

A lack of local due diligence and market feasibility: That is overseas companies often do not understand the Australian market and how different the market is between our regions, States and Territories.

This is an area where we can assist with our on the ground knowledge as it is a big country and the State or Territory of entry can make or break the system. Consumer demand varies greatly between States and Territories as does the demographics so a franchise system highly successful in Queensland may not transport well to Victoria.

Overestimating the market and placing unrealistic performance criteria on a Master Franchise: We often see unrealistic targets set on master franchisees and area developers which cannot be met as the process from sign on of a franchisee top opening can take many months. Setting unrealistic targets places undue pressure on the local master franchisee.

We have had to renegotiate a number of Master Franchise arrangements due to unrealistic performance and roll out criteria, which was impacted by a tightened financial and lending market and other economic impacts more recently of course COVID-19 pandemic event.

Seeking an unrealistic Master license fee: The days of asking a Master franchisee to pay a huge upfront capital fee for the rights are gone. There is now an expected “sharing of the risk” with both parties sharing the risk and also the rewards over time. The Overseas Franchisor may have to accept a less upfront payment and receive payments on the successful sign up of each franchisee particularly as obtaining finance is very restricted in the Australian finance sector.

Not appointing experienced Franchise specialists in the region: Getting local on the ground Specialist legal, tax and demographic advice will limit the risks.

Failing to develop a specific business entry plan: We recommend (as for any business) that an overseas company has a business entry plan for a new territory to identify the risks, costs and benefits, competitors in the market and also do their financial modelling to make sure it is financially viable for the overseas franchisor, the Master franchisee and the unit franchisee.

Without this plan it is like sailing a ship without a rudder! A Happy franchise system is one where the model works for the unit franchisee If they are making money that is, they can take out a reasonable salary for their effort, pay their loans and overheads and get a return on their investment then the franchisor will also do well.

Failing to ensure their IP and brand is registered before entering the market: We have seen cases where an overseas company did not conduct the basic trademark searches and could not then use their overseas brand in the local market due to the name being registered by a local company.


Master Franchisees and unit franchisees now expect more from their Franchisor’s by way of systems, support and marketing.

The upfront Master License fee and the Franchise fees set, must be realistic with the trend being that the fee is significantly less to make the business opportunity attractive and affordable. The key for an Overseas Franchisor is selecting the right Master or Area developer as often the best candidate may not have the capital necessary to take up the rights, whereas the interested party may have the money but not be the right fit or person for the role.

Franchisors therefore need to think laterally as to how to get the right people on board, where they don’t have the capital. We are finding that vendor terms and staggered payments based on milestones are ways to achieve this.

As Edward de Bono says (may he rest in peace) we need to think “outside the square” particularly in the current world we are living in. There are still great opportunities in Australia, and we can assist you to get established for the best chance of success.

Robert TOTH Consultant – Accredited Commercial and Franchise Law Specialist MARSH&MAHER RICHMOND BENNISON PH: 0412 67 37 57 Email: 

Bringing your brand to the United States

By Steven B. Feirman
Nixon Peabody LLP
Washington, DC

We are frequently asked – “Can I promote my brand to potential franchisees in the United States,
before I have completed a Franchise Disclosure Document (FDD)?

Yes. UK and European franchisors can advertise and market their franchises on websites, social media, franchise directories, business publications, and wherever interested franchise buyers may be located!

However, such advertisements and marketing generally may not include information about past or projected sales or profits of the franchised businesses, until that information is included in an FDD.

Ultimately, an FDD will be required in order to sell any franchises in the US. And, in certain states, an FDD is necessary in order to enter into discussions or negotiations with prospective franchisees.

Franchising internationally can present many opportunities for growth and expansion. The United States, in particular, is a tempting market for European franchisors because of the size of the United States economy and the affection of consumers for European brands. There are about 2,500 franchise systems in the United States, and they operate over 800,000 franchised establishments in 300 different industries. The annual sales of the goods and services provided by franchised establishments in the Unites States are $1.2 trillion, and the franchise sector is growing more quickly than the rest of the Unites States economy.

A decision to begin franchising in the United States should not be taken lightly. Such a decision should be strategic, as it will require a significant commitment of resources by the franchisor. This paper discusses some of the business and legal considerations that must be analysed before a European franchisor decides to take the plunge into the United States market.

1. Establish the Franchise System at Home

It is important for a franchisor to become established in its home country before launching an international franchise program. This will ensure that the franchisor has experience in the business of being a franchisor, as opposed only to being an experienced operator of restaurants, fitness clubs, or whatever the underlying line of business might be. Franchisors must become adept at the dual functions of franchise development and franchise operations, and there is no better place to refine those skills than in the franchisor’s home market. While there are examples of franchisors that go international sooner rather than later, franchisors who are more patient tend to have greater success when they begin an international franchise program.

In addition, it is advisable for franchisors to begin expanding internationally by taking baby steps; they should first export their franchise to a nearby country, or to a country that is familiar to the franchisor. For example, many United States franchisors test the waters of international franchising by first expanding into Canada.

Once a franchisor has overcome the obstacles and costs of expanding its system to a neighbouring or familiar market, it can then consider its expansion strategy for the United States.

2. Conduct A Cost/Benefit Analysis

The potential rewards of entering the United States market are substantial, but so are the costs. A franchisor should understand its likely costs so that it can determine whether expanding its franchise operations to the Unites States is likely to be a profitable endeavour. While a franchisor may be able to shift some of the additional costs to its franchisees, the franchisor must be careful to ensure that the franchise costs are not so high that its franchisees are not profitable. The added costs arise in a number of areas.

A. Legal Expenses
There will be significant legal expenses associated with entering the United States market. The franchisor will have to register and protect its trademarks in the United States, and conform its franchise agreement as necessary to account for local laws, language, and currency. There is also a requirement under the Federal Trade Commission (FTC) Franchise Rule to provide pre-contractual disclosures to a prospective franchisee by providing a Franchise Disclosure Document (FDD). A franchisor also should seek tax advice to determine whether any special taxes will affect the financial terms of the franchise relationship. Such advice may require specialized expertise and additional expense. If a franchisor is entering into a multi-unit agreement or master franchise arrangement, the other party is likely to be a sophisticated purchaser, and the terms of the final franchise agreement may be highly negotiated. Any such negotiations may increase the legal expenses associated with franchising in a new country.

B. Travel Expenses
Inevitably, a franchisor’s personnel will need to travel to the United States to identify franchise prospects, train personnel, inspect proposed sites, provide operational assistance, and monitor franchisees operations to ensure that they are operating in accordance with system requirements. The travel costs, including flights, visas, and daily travel expenses, can add up. The methodical franchisor should seek to budget for these expenses, and structure both its initial and ongoing fees accordingly.

C. International Support/Assistance
The cost of providing support and assistance in the United States is likely to be higher than in one’s own country. This is due to a variety of factors, such as the need for greater training and assistance; introduction of a new concept in a foreign market; and adaptation of the franchised concept to the United States market.

D. Regulatory Expenses
A franchisor will have to incur a variety of compliance costs in the United States. Twenty-two countries, including the United States, directly regulate the sale of franchises in some form, and a number of states have separate franchise registration requirements. There will be added costs to generate disclosure and registration documents and to make the required filings. There are also expenses associated with seeking and maintaining intellectual property protection.

3. Register the Primary Trademarks in the United States
Neither the FTC Franchise Rule nor any of the state franchise sales laws requires that the franchisor have a federally registered trademark to use with its United States franchise program. Nevertheless, there are practical and legal reasons why a federally registered trademark is desirable.

If a mark is not registered, there is a risk that another party could use a similar or identical mark and obtain a common law right in the mark in a specified area of prior use. That would mean that the franchisor would not be able to grant a franchise using the mark in that area of prior use. In addition, the franchisor would have to disclose in its FDD if it knows of either superior prior rights or infringing uses that could materially affect the franchisee’s use of the principal marks in the state where the franchise will be located. Moreover, the infringing party may seek to register its own mark. The risk to the franchisor if it uses an unregistered mark is that the franchisor may have to modify its trademarks or discontinue using a trademark, which then raises the practical issue of which party would bear the cost of modifying the marks used by the franchisees. Brand identity is critical to a successful franchise program, and having to change or modify a mark could have a negative impact on the franchise system.

4. Determine the Optimal Structure for the Franchise System in the United States
When expanding a franchise system to the United States, the franchisor has to choose the method for expansion. Establishing a subsidiary and beginning direct unit franchising provides the franchisor with maximum control but is very expensive and time consuming. For this reason, direct unit franchising tends to be disfavored in international franchising transactions.

Many franchisors prefer to contract with a local party in the United States, someone who is familiar with the business environment, the cultural environment, and the legal environment, and who can focus on expansion in the United States as its primary function. For this sort of contractual arrangement, the choice may be between a master franchise and an area development agreement.

In master franchising (also known as sub-franchising), the franchisor will grant the master franchisee the right not only to establish and operate outlets owned by the master franchisee but also to sub-franchise outlets to independent sub-franchisees. The master franchisee will have to act as local franchisor and take on all obligations and perform all services for the sub-franchisees. The franchisor has to train the master franchisee not only in the operation of the franchise system but also in the training of sub-franchisees. As the master franchisee creates another layer in the structure, it is necessary that the training of sub-franchisees be identical to the training that the franchisor gives its local franchisees.

In area development agreements, the area developer will be granted the right to establish and operate a number of outlets during a certain period of time. The area developer will not be allowed to sublicense its right to others; it has to establish all outlets by itself. The area developer usually handles the obligations of a franchisor for the territory it has been granted.

An area development agreement is often preferred over a master franchise agreement: the franchisor will get the expansion it wants but without the middle man seen in the master franchise structure.

5. The Franchisor Should Adjust its Franchise Agreement
When entering the United States, it is usually necessary to modify the franchisor’s existing agreements. This is especially true when a franchisor from a civil law country (such as Germany) enters a common law country (such as the United States).

In an area development structure, the development agreement can include both the development grant and the grant to operate units with all the details concerning the operations. The development agreement can also be a two-fold system with a separate agreement for the development grant and an agreement for the operation of each unit. The latter agreement may be very much like a direct franchise agreement. In both scenarios, the franchisor will be one of the parties to the agreements and will want to have its law as the governing law. If the franchisor originates in a civil law country, it will most likely use its civil law agreement. However, there are clauses that need to be adjusted to protect the intellectual property and to enable the franchisor to seek injunctions in the United States.

If the arrangement is based on master franchising, there are two layers of agreements: the master franchise agreement and the sub-franchise agreement. The master franchise agreement will be concluded between the franchisor and the master franchisee. Just like the development
agreement, the franchisor will most likely demand that the governing law be the law of its home country, similar to most licensing agreements. If the franchisor originates in a civil law country, it will most likely use its civil law agreement. But, like the development agreement, it needs to be amended to enable the franchisor to protect certain right in the United States. The second
layer of agreement the sub-franchise agreement will be concluded between the master franchisee and the sub-franchisees. Both these parties are established and operate in the United States and must use a franchise agreement that recognizes common law principles.

6. Cultural Differences May Require Adjustments to the Franchise System
Franchisors from outside the United States used to spend a considerable amount of time trying to determine how best to Americanize their concepts for the United States market. Now, the need to change any franchised concept to conform to what might have been considered Americanâ tastes and preferences has been significantly diminished. A franchise concept developed in Europe may be much more successful in the United States if it remains authentic, instead of trying to turn itself into something more American. European franchisors will want to minimize any changes to its concept that could sacrifice the integrity of the brand.

Some successful foreign concepts also target the market of emigrants in the United States who are from the country where the concept was developed. In those cases, the franchisor wants to capitalize on its authenticity and heritage and successfully bring the home country feel of the brand to consumers in the United States who are already familiar with the concept. Of course, for each particular system, relevant cultural differences should be studied and taken into account as the foreign franchisor considers entering the United States market. For restaurant concepts, portion sizes may need to be altered. In the hotel industry, American business travellers expect that each room will have internet access, as well as an iron and ironing board. Given the number of overweight Americans, furniture sizes for restaurants and hotels may also need to be reviewed. Every aspect of the brand will have to be carefully considered prior to determining the exact offering for the United States.

If the franchisor’s home country and the countries where it has already expanded utilize the metric system or the Imperial system, the franchisor must include in the budget for its United States expansion the costs to convert all its measurements (recipes for both proprietary and non-proprietary food and beverage items) and architectural and interior designs for plans and specifications to the United States system of measurement.

7. Adjustments May Have to Be Made Due to Different Laws
The extent to which the franchisor will have to adjust its business model will depend on many factors, but most particularly on how the franchisor has set up its model in its home country and the level of any applicable disclosure requirements with which it is already complying. For example, in Germany there is limited pre-contractual disclosure because there is no statutory requirement for such disclosure; the limited obligation to disclosure arises from German case law and the German Franchise Association code of ethics. On the other hand, in the United States, the FTC Franchise Rule requires an FDD containing twenty-three items of disclosure. A German franchisor that is doing business in France, Italy, or Spain will be familiar with the level of pre-contractual disclosure required in the United States; but a German franchisor that has not previously had to provide detailed disclosures may be in for a surprise.

For example, in the United States, the franchisor must include information about any payments designated suppliers may make to the franchisor from franchisee purchases. If the arrangement with suppliers in the home country includes rebates or other payment benefits for the franchisor related to such purchases and there is no obligation to disclose them, the franchisor may have simply included such payments in its income. This disclosure does not, of course, dictate what the franchisor must do with rebates, but the transparency required regarding the payments may lead a United States franchisor to alter the use of such payments.

8. The Franchise System May Have to Be Modified Due to Supply Chain Differences
One key to a successful launch of a brand in the United States is the development of a secure, high quality supply chain. It will be necessary for the franchisor to determine whether products and supplies must be imported from the home country into the United States, with the added expense of transportation and logistics services and the payment of customs duties; or whether proper suppliers and manufacturers can be located in the United States. The integrity of the brand will be at stake so the franchisor must be assured that local United States suppliers can meet the requirements and provide the same quality of goods and products as the brand does in its home country. If the concept includes proprietary ingredients or technology, for example, the franchisor may be hesitant to permit production of these items by any supplier other than those with which it has a long term relationship. Supply chain analysis should be undertaken very early in the investigation of whether the brand and the business model will be financially attractive for franchisees in the United States, particularly if any goods or inventory must be imported.

The franchisor will also need to undertake careful research to determine if the amount of the advertising contribution required in the home country or other countries where the franchisor has units will be appropriate for the United States market. The franchisor must also decide if it will allow the United States franchisees to undertake advertising on their own, particularly when the brand is just beginning to grow in size.

9. A Franchisor Must Prepare and Register a Franchise Disclosure Document
As noted above, the content of the FDD is mandated by the FTC Franchise Rule. In addition, state franchise regulators have issued Franchise and Registration Disclosure Guidelines to provide further guidance on the disclosure and state registration process. A number of the franchise registration states require that certain additional state specific disclosures be included in the FDD, usually in an addendum.

Counsel in the United States may provide the franchisor with a detailed questionnaire that can be used to gather the information that will be needed to prepare the FDD. Many disclosures in the FDD need to reflect certain provisions in the Franchise Agreement, the Area Development Agreement or Master Franchise Agreement, and other documents used in the franchise sales process. Therefore, it is most efficient to prepare the Franchise Agreement and other agreements before preparing the FDD. Among other requirements, the FDD must contain the franchisor’s audited financial statements and a copy of each agreement to be signed by the franchisee.

Once the FDD is ready, it can immediately be used in about 35 states. However, it will have to be registered in 15 states before a sale or offer of a sale of a franchise can be made that is  subject to the laws of those states.

10. A Franchisor May Be Responsible for its Master Franchisee’s Compliance with the
FTC Franchise Rule
Franchisors that enter into master franchise agreements (rather than area development agreements) have additional disclosure obligations. The FTC Franchise Rule defines a franchisor as any person who grants a franchise and participates in the franchise relationship. Unless otherwise indicated, a franchisor also means a master franchisee. As noted above, there are at least two agreements involved in a master franchise relationship  the master franchise agreement between the franchisor and the master franchisee, and the franchise agreement between the master franchisee and the sub-franchisee.

These two types of agreements each have their own FDDs: (1) the FDD provided by the franchisor to the master franchisee; and (2) the FDD provided by the master franchisee to the sub-franchisee. The latter FDD must include information about both the master franchisee and the franchisor. The franchisor is responsible for the master franchisee’s representations in the FDD to sub-franchisees. Therefore, the master development agreement should contain detailed provisions about the responsibility for preparing the FDD. Similarly, state franchise laws also require that disclosure be included for franchisors in sub-franchise offerings.

11. The Size of the Franchisee’s Territory Must Be Manageable
The United States market is very large. The franchisor who grants too big a territory to the master franchisee or area developer is likely to be disappointed when the territory is not developed at the pace it expected. If the master franchisee or area developer undertakes to develop a territory that is too big and, as a result, fails to meet the development schedule, it risks losing its development rights. The way to handle the territory and the pace of development is by agreeing on a development schedule that both parties believe is feasible. The franchisor should set realistic goals on how fast it wants the territory to be developed. If the development is state- by-state or area-by-area, it is easy to set goals and thresholds. If the master franchisee or area developer does not meet the goals, the franchisee’s exclusivity may be terminated, the territory may be decreased, or the whole agreement may be terminated.

Many foreign franchisors expand to the United States with the naive perception that the United States is a single market. Too often have we seen franchisors grant a territory defined as all of USA. This is not the recommended way to expand. Very few franchisors would grant a territory defined as all of Europe. The countries of Europe may, in this example be compared to the states of the United States. Even though the states have the same currency and the same language, the laws and the culture will differ among the states.

12. The Franchisor Must Decide Whether to Form a United States Subsidiary
Franchisors generally form a United States subsidiary to license and operate the franchise system in the United States under one or more of three circumstances: (1) if it wants to have a presence in the United States to support the franchise operations or conduct company-owned operations; (2) to comply with the FTC Franchise Rule’s financial statement requirements for the FDD disclosure; and/or (3) to minimize its liability risk exposure.

If the franchisor plans to have its personnel stationed in the United States to support its United States franchise operations or conduct its own operations, it would be prudent to set up a United States subsidiary to conduct those operations. For tax reasons, and perhaps liability reasons, the franchisor may want to avoid having a branch office in the United States. The personnel stationed here would have to obtain the appropriate business visa to allow them to work in the United States, which may be easier to obtain if there is a local subsidiary. Such personnel often obtain a United States green card allowing them to live and work in the United States as a resident alien.

An important part of preparing the FDD required by the FTC is the need to have audited financials prepared in accordance with Generally Accepted Accounting Principles used in the United States. Most foreign franchisors establish a United States subsidiary to license and operate the program, adequately capitalize it, and then obtain an audited opening balance sheet prepared in accordance with Generally Accepted Accounting Principles.

13. The Franchisor Will Have to Provide Training for its United States Franchisees
A franchisor entering the United States should begin with its existing written training programs and materials. If these materials do not already exist in English, they will have to be translated and the costs for such translations can be significant. If they have been previously translated into an English version other than “American English, they will likely need to be reviewed and revised in order for Americans to be able to utilize them successfully. Some franchisors entering the United States have chosen to do so through their home country nationals who have emigrated to the United States and who are fluent in the home country language. In that case, written training materials may not have to be translated immediately.

Additionally, if the franchisor expects that the franchised businesses will be operated by a diverse workforce, it will need to contemplate the possibility that certain training materials will not only have to be translated into English, but also into Spanish or another foreign language, depending on the ethnicity of the workforce. The franchisor may be able to minimize costs by having a substantial amount of its training program provided through on-line tools.

14. The Franchisor Must Conduct Inspections and Ensure Quality Control
If the franchisor has determined to create a subsidiary in the United States to provide support for the franchise system, it may determine to hire its own local employees who can undertake inspections of the franchised businesses. Such employees will have to be trained in the culture of the franchisor and likely will have to spend a significant amount of time in the franchisor’s home country to learn about the system and the operation of the units in order to be prepared to conduct inspections of the United States units.

Alternatively, the franchisor may have created an in-house team who inspect the foreign units, both in the home country as well as in other locations where the franchisor has expanded prior to its entry into the United States. Any such non-United States citizens who come to the United States for such inspection work will have to obtain a non-immigrant visa, a process that can be very simple or complicated and time-consuming, depending on the citizenship of such person. Inspections can also be handled by independent third parties who have been provided with the criteria for such review. Mystery shoppers are another tool that some franchisors utilize. Customer satisfaction surveys may also serve as a tool for quality control. All of these methods may be combined, but as the franchisor considers its entry into the United States, it will be necessary to establish a budget for these activities.

15. Tax Implications for the Franchisor May Be Different from its Prior Experience
The United States tax implications of a foreign franchisor entering into the United States market depend upon the ownership structure of the franchise. Foreign franchisors may enter the United States market by either (i) entering into a franchise agreement, area development agreement, or master franchise agreement directly with an unrelated party; or (ii) forming a United States subsidiary to serve as a base of operations in the United States or as a joint venture partner. Each structure will have different tax implications, so it is advisable to seek advice from a qualified accountant or tax lawyer in order to create a tax-efficient structure. In addition, the effect of tax treaties must be considered.

16. United States Franchise Laws Apply to Many Commercial Agreements
A franchise relationship may exist even if it is called a license agreement, a dealership, a distributorship, or a sales agency. For a transaction to be a franchise, three elements of the franchise definition must be present in the relationship. The first element is significant association with the licensor’s trademark or commercial symbol. The second is the payment of a fee. The third element varies, depending on the jurisdiction. Under the FTC Franchise Rule, this element is described as “significant control over the licensee’s operations or significant assistance in such operations. In a number of states that regulate the offer and sale of franchises, this element is described as a marketing plan that is prescribed in substantial part by the licensor. Some states instead require that there be a “community of interest between the licensor and licensee for a franchise to be present. Franchise laws are considered to be remedial laws and, therefore, interpreted broadly. In fact, some states have a broader definition of franchise than the FTC Franchise Rule definition. In New York, a franchise consists of only two definitional elements: the payment of a fee and either a marketing plan or a trademark license.

It does not matter what name or designation is given the arrangement if it includes the definitional elements. Therefore, if a European franchisor wants to enter the United States market as a non-franchised licensor, it will need to eliminate the payment of fees. As a practical matter, this may be possible if the franchisor only sells goods to the franchisee for resale. That structure may qualify as an exception from the fee element if the amount paid is a bona fide wholesale price and if the franchisee is not required to purchase more than a reasonable business person would to maintain an inventory.

European franchisors are increasingly entering the United States market because consumers in the United States are attracted to European brands. In addition, the size of the market and the large middle class in the United States offers many potential benefits to European franchisors looking to expand. However, the decision to bring franchising in the United States requires that European franchisors have a keen understanding of the differences between the European and United States markets

Why consider investing in a Master Franchise?

Master Franchising isn’t for everyone but for some, it can be a very rewarding experience both financially, and in terms of job satisfaction.

For those readers who are unfamiliar with the term Master Franchise, for the purposes of this article, I am defining it as acquiring the rights to own and operate a proven franchise model in a geographic region or country; the Master Franchisee acquires the know-how to not only be able to deliver the service/product at a local level, but also that required to build a network of sub-franchisees in effect replicating all aspects of what the franchisor has accomplished in their domestic market.

Whilst there can be many reasons that someone may wish to go down this route, let me cite 3 that in my experience are very common:

Financial Rewards
The initial investment required to acquire a Master Franchise for the UK, will typically run into hundreds of thousands of pounds. However, the potential returns are very attractive. Once a Master has established a network of franchisees, they will enjoy several income streams: franchise fees from new franchisees joining the network; ongoing royalties/management service fees (MSF) from existing franchisees; possibly income from one or more corporately owned and operated franchises; possibly margin on the supply of products/additional services. The larger the network becomes, the more resilient the ongoing MSF income, and the more predictable the EBITDA. So, a successful Master Franchisee can enjoy a very healthy income during their ownership of a country licence, and at the same time, build a an attractive asset which can be sold at some point. I can think of several Master Franchisees who have built and sold their UK rights in the last year or so interestingly, on ore than one occasion, the buyer has been the franchisor!

Helping Others Succeed
One of the major differences between being a franchisee, and a Master Franchisee, is that the customer focus is different. A franchisee’s customer will be the person/organisation buying the service/product being sold by the franchisee whoever the franchisee received money from; the latter principle remains true for a Master Franchisee, but of course in this case, income is received from franchisees, normally a percentage of their income. So the focus of the Master should be their sub-franchisees after all, the more successful they become, the more successful the Master. Therefore a good Master will see their customer as the franchisee, and will ensure that the initial and ongoing training and support provided enables franchisees to achieve their business and personal goals. Its very much about motivating and equipping which can be hugely rewarding when franchisees respond positively, and make a success of their businesses.

Flexibility within a Structured framework
Most franchise concepts which are new to the UK will require some local market adaptation this can be due to legal requirements, cultural norms, or consumer preferences. However, there will be certain aspects of the franchise which will not change – these include the brand, the corporate culture and values, the core offer, and the target market(s). One of the first jobs of the Master Franchisee, is to launch a corporate franchise to test the model in the UK, to make adaptations as required (in conjunction with the franchisor), and to ensure that the unit economics work. Examples of this include Food & Beverage brands adapting some of their menu items to reflect local tastes; and premise-based concepts adapting the outlet footprint to reflect the (typically) higher real estate costs in the UK compared to certain other markets (eg the USA). So there is much more scope as a Master, to make changes to different aspects of the business model apart from contractual obligations to ensure that the franchisor is agreeable to such changes, there is a very practical reason for involving them it may be that what is proposed has already been tried elsewhere in the world, and has failed! As a unit franchisee, there will be relatively little scope for localisation after all, one of the benefits of taking a franchise, is that customers have expectations of what they will receive in terms of product/service, and if there is inconsistency across the country, the brand can become devalued. So for the more entrepreneurially-minded franchisee, a Master provides scope to input into country adaptation, whilst retaining all of the benefits of using a proven business model.

Interested in finding out what Master Franchise could work for you? Contact me at

Multi-unit & multi-brand franchisees – A bright future for UK franchising?

By Dr Mark Abell and Shelley Nadler Bird & Bird

Multi-unit / multi-brand franchisees have long been a feature of the US franchise market, a great many of this have become hugely wealthy and some have even floated. Without them the US franchise market could not have expanded as it has done. These exciting new large-scale franchisees have started to emerge in the UK Although the master franchisee/owner operator franchisee model of franchising has a role in franchising in the UK, many are beginning to realise that it has a number of severe limitations and that franchisors looking to launch their brands in the UK should be looking to engage with successful multi-unit franchisees.

Through the emergence of successful multi-unit / multi-brand franchisees in brands such as Costa, Domino’s and KFC a key resource has evolved. Due to market saturation and hence a lack of opportunity for further significant expansion within their current brands, these multi-unit operators can be usefully exploited by other franchised brands looking to turbo-charge their growth within the UK.

Who are these multi-unit / multi-brand franchisees?
Typically, these multi-unit/multi-brand operators are individuals who, through years of operating well developed franchise concepts, have developed a strong set of operational skills together with an effective operational and managerial infra-structure. Many of them have professional backgrounds as accountants, lawyers or MBA graduates. They have applied their professional training and rigour to the effective implementation of their chosen concepts (often fast food and coffee shops), whilst at the same time taking a bigger picture and strategic view as regards the structuring, financing and growth horizons of their business.

Often they acquire their first franchise at a young age and this is usually in the food and beverage sector. These operators are good negotiators and have a history of finding securing good locations at competitive rents. They also understand how to motivate and retain good quality staff which ensures that standards are maintained for stores whether they are operating one or fifty. Many multi-unit / multi-brand operators have invested heavily in real estate and worked strategically to build a portfolio of brands that can occupy adjoining sites in a hub type structure. These operators know how to keep costs down by sharing resources. Importantly, these operators all have access to substantial capital that is available to invest in appropriate projects.

Once established as a multiple franchisee with one brand the multi-unit franchisee typically switches to a non-competing brand to spread the risk. Lessons have been learnt following the BSE crisis in the 1990’s when sales of burgers plummeted that it is good to own more than one type of food concept. The same could be said of the KFC chicken shortages earlier this year. So, the multi-unit / multi-brand franchisees learnt to diversify, perhaps owning a chicken, pizza and coffee brand. With worries regarding staff shortages following Brexit, multi-unit/multi-brand operators are looking for new opportunities in sectors where there is greater reliance on technology and less need for staff. Many are looking at fitness and wellness concepts and service concepts that are less labour intensive.

Interestingly, these multi-unit/multi-brand operators typically do not want to become master franchisees as they feel that requires a different skill set and does not play to their key strengths, which is operational implementation rather than the recruitment, training and management of franchisees. Another appealing factor is that these multi-unit/multi-brand operators are often regionally based within the UK and they understand the geography and markets in those regions. Appointing a number of regional multi-unit franchisees rather than one master franchisee could quickly give a foreign brand coverage across the UK.

The advantages and disadvantages of dealing with multi-unit/multi-brand franchisees
From a franchisor’s point of view the great attraction of such multi-unit/multi-brand operators is that they have a huge amount of operational expertise and an established infrastructure and the financial resources to expand quickly. If a foreign brand is seeking to enter the UK in a competitive sector (such as gyms) by using experienced multi-unit/multi-brand operators the brand owner may be able to quickly get coverage in the UK ahead of other gym brands. In allowing multi-unit franchisees to open multiple stores, franchisors know they are dealing with someone who has experience of the system and a proven track record and will need so much less support then a new franchisee. Often successful multi-unit franchisees are able to take over poor performing franchisees. A system that uses multi-unit operators will have less franchisees to deal with but this can be a blessing and a curse.

Partnering with such franchisees is not without a potential downside for franchisors. Fundamentally the nature of these multi-unit/multi brand franchisees means that the classical relationship dynamics between the franchisor and its franchisees are bound to be impacted due to the size and bargaining power of the franchisee. These franchisees do have the resources to challenge the franchisor. Another disadvantage is that by over extending themselves they are not able to implement a new brand concept. There is also a risk of know-how leakage and potential cross contamination between different concepts.

However, matched against the obvious commercial upside these risks are clearly manageable so long as franchisors do not simply ignore them. Franchisors will probably need to adapt their ways of working for multi-unit / multi-brand franchisees but if care is taken we believe it will be worthwhile.

How can franchisors best engage with multi-unit/multi-brand franchisees?
To be successful in the UK market most foreign brands need to invest a good deal or time and money adapting the concept to the UK market or finding a developer or master franchisee with sufficient faith in the brand to make that investment for them. For well-known legacy brands that may be possible but for many smaller brands that is often a struggle. By partnering with a successful multi-unit/multi-brand operator, such franchisors can effectively pilot and adapt their brand to the UK market on a relatively low risk manner. Of course, it is critical that this new style relationship is properly structured and documented. A classic joint venture is unlikely to work but a subordinated equity type relationship is a proven way of structuring an effective catalyst for such a relationship.

A subordinated equity arrangement is a variation on the traditional joint venture model adapted for the franchise industry. In a subordinated equity arrangement, a franchisor takes a minority shareholding in a franchisee company but the primary relationship between the parties remains that of franchisor and franchisee rather than as joint venture parties. The franchisor exercises the usual controls over the franchisee under the franchise agreement rather than by holding board and shareholders meetings under a joint venture agreement. A special purpose vehicle is set up with the multi-unit franchisee as the majority shareholder and the franchisor holding a minority stake. Multi-unit franchisees favour this arrangement as the franchisor “has skin in the game” and it will encourage the franchisor to establish a “boots on the ground” presence locally to help set up the new concept. The franchisor benefits by having the greater rewards that equity participation brings and also, in some cases, the option to buy out the franchisee company once the concept is established at a pre-agreed valuation.

If a foreign brand already has a master franchisee in the UK accessing good unit franchisees is always a challenge. Potentially good operators can find it difficult to obtain the required capital to invest in a franchised business and many of those with the available capital do not fit the brand profile or are unlikely to be good operators. Also, managing a large number of individual franchisees spread the length and breadth of the country is a stretch for many developing franchise concepts. Engaging with multi- unit/multi-brand franchisees could be a solution to this challenge for master franchisees.

New start up UK based franchisors can also take advantage of multi-unit/multi-brand franchisees. Proving a concept and establishing the first 10 or so franchise outlets is a hard and slow process for new franchisors. One potential solution to this is partnering with a multi-unit/multi-brand franchisee and leveraging off of its operational expertise and infrastructure. Clearly this type of relationship is very different from the classical franchisor/ franchisee relationship but, properly structured – perhaps through a subordinated equity structure (as mentioned above),this could enable brands that will otherwise struggle to get over the sustainability threshold as regards the number of outlets, to leap frog over those market entry barriers and establish themselves as a successful and credible brand much more quickly and with fewer difficulties than would usually be the case.

The way forward
So, in conclusion, the UK franchising market has evolved, in an almost Darwinian fashion, to offer franchisors the opportunity to take advantage of a new “gene pool” of relevant expertise and capital that handled appropriately can greatly add to their chances of success. Foreign franchisors and UK start-ups should consider developing their brand in the UK using multi-unit / multi-brand franchisees rather than appointing a master franchisee.

The key is to ensure that the relationship with them is captured in an appropriate legal mechanism. Joint Ventures rarely succeed, particularly between franchisors and their franchisees. Instead, subordinated equity structures and other specially developed relationships can be used to ensure a full alignment of interests and mutually attractive exit strategies.