Blogs

Emerging Companies Insider

The Emerging Companies Insider blog focuses on recent and developing areas of the law affecting startup and emerging growth companies and their investors, including choice of entity, shareholders’ agreements, issuance of equity to employees, preparing for and executing a capital raise, exit strategies and the JOBS Act and its impact on how companies can and should raise capital from investors.

Franchise Law Update

For those with an interest in the world of franchising, the Franchise Law Update blog will become a regular stop for you. Our bloggers discuss not only the regulatory aspects of franchising, but also diverse topics such as business finance, employment, litigation and the protection of intellectual property including trademarks and copyrights. We understand that while franchising has its unique aspects, franchise businesses confront the same opportunities, changes and challenges as any other business.

Recent Blog Posts

  • Did the D.C. Circuit Overrule or Uphold Browning-Ferris? Yes. On December 28, 2018, the D.C. Circuit Court of Appeals issued an opinion in the Browning-Ferris case. In this much anticipated decision, the Court of Appeals concluded that the National Labor Relations Board’s decision to enumerate a new joint employer test was a valid exercise of its authority. The Court of Appeals held, however, the NLRB failed to properly apply the newly created test. Consequently, while the Court of Appeals didn’t completely abrogate the NLRB’s ruling, the opinion frankly raises... More
  • Does GDPR Apply to Your Brand? Fresh Answers Here. Submitted by Odia Kagan, Partner & Chair of GDPR Compliance and International Privacy. Does the EU General Data Protection Regulation (GDPR) apply to my brand? This is a question with which many U.S.-based franchisors have been grappling since the GDPR took effect on May 25th. Six months later, the European Data Protection Board (EDPB) has issued, for public comment, guidelines on the territorial scope of GDPR. Below is a breakdown of the major questions and takeaways for US-based franchisors: 1. Do you have an... More
  • It’s Deja Vu All Over Again at the NLRB Copyright: vician / 123RF Stock Photo With apologies (and props) to the great Yogi Berra, it’s deja vu all over again at the National Labor Relations Board.  The Board has extended the commenting period on its proposed joint employer rulemaking for a second time. Comments to the proposed rule may now be submitted until January 14, 2019. And the Board will accept replies to comments submitted in the original comment period through January 22, 2019. We have blogged about this important issue... More
  • Ample Planning Cannot Always Save Franchisors from Taxes Out-of-state franchisors beware of opening a franchise in New Mexico due to the recent decision in A&W Restaurants, Inc. v. Taxation and Revenue Department of the State of New Mexico and the potential for tax liability. The Taxation and Revenue Department of the State of New Mexico (“Dept.”) assessed over $29,000 in unpaid taxes against A&W Restaurants, Inc. (“A&W”) arising from its collection of royalty fees from several New Mexico franchisees. In 2007, the New Mexico legislature amended the definition of... More
  • Are You Doing the Right Due Diligence as You Grow Your System? In our last post, we examined some of the types of risk that come with growth. In this post, we discuss some forms of diligence that may be used to better manage that risk. Diligence on Legal Matters Are there operating hour ordinances that might affect the business? How about limitations on operating hours or days by the landlord? For foreign expansion, the inquiry is whether it is even legal to sell the goods and services in the foreign market. In the... More
  • Reducing Your Risk When Growing your System Growth can be expensive, but it is always more expensive when the expansion is taken without risk assessment. Whether domestic or foreign, many risks can be reduced or avoided by proper consideration of differences between where you are now, and where you want to go. For illustration, the examples here will be for foreign expansion, but the same issues confront domestic expansion as well. Many factors need to be taken into account in new territories. National chains offer localized products in particular... More
  • What “Never” To Negotiate in Franchise Agreements – Part 4 The Fox Rothschild associate team of Megan Center and Alex Radus recently gave a presentation at the International Franchise Expo in New York City on the “Top Ten Provisions to ‘Never’ Negotiate in a Franchise Agreement”.  We have prepared a summary of this presentation in four separate blog posts.  The first post focused on central themes of franchise negotiation, the second post addressed protecting the confidentiality of franchise negotiations, and the third post addressed the first five of our top... More
  • Fox Rothschild Comments on NLRB Proposed Joint Employer Rulemaking My esteemed colleague Tami McKnew today filed the following comment on the NLRB proposed joint employer rulemaking, 83 FR 46681: The proposed rule specifically acknowledges the effects of the 2015 shift in joint employer analysis evident in the Board’s decision in Browning-Ferris Industries, 362 NLRB No. 186 (“Browning-Ferris”). Following the Browning-Ferris decision, franchisors, temporary employment firms, contract employers and others whose businesses necessitate some degree of interaction with and arguable control over non-employed workers found themselves as joint employers, despite decades... More
  • What “Never” to Negotiate in Franchise Agreements – Part 3 The Fox Rothschild associate team of Megan Center and Alex Radus recently gave a presentation at the International Franchise Expo in New York City on the “Top Ten Provisions to ‘Never’ Negotiate in a Franchise Agreement”. A summary of this presentation will be prepared in four separate blog posts. The first post focused on central themes of franchise negotiation, and the second post addressed protecting the confidentiality of franchise negotiations. This installment details the first five of our top ten provisions... More
  • Time to Reconsider No Poaching Agreements? Yes, Emphatically. Renewed Efforts to End No Poaching Provisions Franchisors need to review their franchise agreements and take immediate action in response to the recent onslaught of legal action over “naked no poaching” provisions in franchise agreements. In a typical franchise agreement, a franchisor will prohibit a franchisee from poaching its or its other franchisees’ employees during the term of the franchise agreement and for a period of time after the franchise agreement ends. Until now, these provisions were fairly commonplace. Franchisors argue these provisions... More
  • You’re Invited: Austin’s Startup Community Global Impact: Featuring SXSW and Central Texas Angel Network The American Bar Association is holding its upcoming 2018 Business Law Section Annual Meeting at the Austin Convention Center in Austin, TX, from September 13 to 15. Fox partners Emily Yukich and Matt Kittay are organizing a panel discussion entitled “Austin’s Startup Community Global Impact: Featuring SXSW and Central Texas Angel Network.” The panel will feature Claire England (Executive Director of the Central Texas Angel Network (CTAN)) and Chris Valentine (SXSW Pitch Event Producer). It will provide unique insights regarding Austin’s early... More
  • The Taxman Cometh (for Your Internet Sales) On Fox’s Franchise Law Update blog, partners John Gotaskie and Elizabeth Sigety reviewed the U.S. Supreme Court’s decision in South Dakota v. Wayfair, in which the court reversed longstanding precedent blocking states from requiring that sellers with no physical presence in their state collect and remit sales taxes on goods shipped to in-state consumers. The precedent had been a boon to the e-commerce industry. We invite you to read John and Elizabeth’s examination of the decision: The Taxman Cometh (for Your Internet Sales) ... More
  • SEC: Bitcoin Is Not Governed by Securities Laws Our colleague Kristen Howell has published an alert reporting on an important development in the cryptocurrency industry. The U.S. Securities and Exchange Commission has declared that Bitcoin, Ethereum and other coins operating on truly decentralized platforms are not securities. The agency’s reasoning was revealed in remarks by William Hinman, Director of the SEC’s Division of Corporate Finance, at the Yahoo Finance “All Markets Summit: Crypto” on June 14. Hinman explained that since the value of cryptocurrency is not based on the expectation... More
  • Four Considerations for Advisor Option Grants Startup clients often rely on independent contractors and advisors during their early stages but do not have the cash to pay them, so they turn to equity compensation. Stock options are a great incentive tool, but founders should consider the following before issuing options to advisors or independent contractors: How Much?: Most founders grant early advisors and contractors options that cover anywhere from 0.10% to 1% of the company’s fully diluted stock on a case-by-case basis. Founders should consider (i) how... More
  • Los Angeles Startups: Join Us April 24 for an HR Boot Camp! Attention all Los Angeles area emerging companies! Want to get the most out of your people and your investment? Focus on your company’s HR and corporate governance. Join Fox Rothschild Employment and Corporate attorneys Sahara Pynes and Emily Yukich as they host a free workshop for startups and emerging companies. Enjoy breakfast on us as you learn how to keep growing businesses on track, create invested teams, manage risk and cultivate top-notch culture. When:  April 24, 2018, 8:30am – 10:00am Where:  Fox’s Los Angeles Office  10250 Constellation Blvd.  Suite... More