Horizontal restraints refer to agreements or coordinated actions between competitors at the same level of the market structure—such as between two franchisees—that limit competition. These restraints are generally illegal under antitrust law unless they are justifiable and narrowly applied.
in franchising occur when two or more businesses operating at the same level of the supply chain—typically franchisees within the same brand or competing brands—coordinate to limit competition. Examples include price fixing, territory allocation, group boycotts, or agreements not to hire each other’s employees (no-poach agreements). These arrangements are scrutinized under U.S. antitrust laws, particularly the Sherman Antitrust Act, and are often considered per se illegal unless they are clearly pro-competitive and justifiable. While franchisors usually manage system-wide restrictions (vertical restraints), franchisees must avoid entering into unauthorized horizontal agreements that could trigger legal or regulatory action. The franchise agreement may also include clauses forbidding franchisees from engaging in activities that would result in unlawful horizontal restraints.
Also See Vertical Restraints
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The concept of horizontal restraints has been central to U.S. antitrust law since the early 20th century. Landmark cases such as United States v. Topco Associates and FTC v. Superior Court Trial Lawyers Association helped define the scope of illegal collaboration among competitors. In franchising, horizontal restraints became more relevant as multi-unit and multi-brand franchisees began negotiating and interacting across systems. Recent antitrust scrutiny has focused on “no-poach” clauses—agreements between franchisees not to recruit each other’s employees—which have been the subject of class-action lawsuits and government enforcement. Courts generally view horizontal restraints harshly because they undermine the competitive process.
| Aspect | Horizontal Restraints | Vertical Restraints |
|---|---|---|
| Parties Involved | Businesses at the same level (e.g., franchisee-to-franchisee) | Businesses at different levels (e.g., franchisor-to-franchisee) |
| Common Examples | Price fixing, territory allocation, no-poach agreements | Exclusive territories, supplier mandates, pricing controls |
| Legal Treatment | Often per se illegal under antitrust law | Evaluated under the “rule of reason” standard |
| Risk Level | High risk of legal exposure for all parties involved | Generally permitted if they promote brand consistency and competition |
| Purpose | Often restricts competition between similar businesses | Intended to maintain brand standards and customer experience |
| Regulatory Focus | Scrutinized by FTC and DOJ for anti-competitive behavior | Monitored but typically allowed if not overly restrictive |
Horizontal restraints are agreements or coordinated actions between businesses at the same competitive level—often franchisees—that reduce competition. These practices are generally unlawful and can lead to severe legal consequences. Franchisees must avoid any behavior that might constitute or suggest a horizontal restraint, and franchisors should monitor their systems to prevent such conduct and uphold compliance with antitrust regulations.
Private equity refers to investment capital from firms or funds that buy and manage businesses, often with the goal of improving profitability and selling them for a return. In franchising, private equity commonly acquires franchisor brands to expand operations or consolidate industry segments. These investments can impact franchisee relationships, leadership, and long-term strategies.
Private equity in the franchising industry typically involves the acquisition of a franchisor—or multiple franchisors—by a private investment firm. These firms seek to enhance the value of the business by improving operational efficiency, expanding the franchise network, upgrading systems, or combining multiple brands into a portfolio. Private equity investors are not involved in day-to-day franchise operations but influence high-level decisions such as executive leadership, brand positioning, and long-term growth strategies. While the franchise agreement does not usually mention private equity by name, the acquisition of the franchisor by a private equity firm can result in changes to policies, fees, or support systems. Franchisees may benefit from increased resources or suffer from reduced personalization and more aggressive expansion models, depending on the approach of the private equity firm.
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Private equity began playing a major role in franchising in the late 1990s and early 2000s, as firms recognized the steady cash flow and scalability of franchise systems. Brands such as Dunkin’, Anytime Fitness, Jamba Juice, and Mathnasium have all received private equity backing. Today, private equity is one of the most influential forces in franchising, with many firms managing multiple brands under one umbrella, known as a “multi-brand platform.” These portfolio strategies allow for shared services, operational efficiencies, and strategic cross-brand collaboration. However, the pressure to generate returns can also lead to cost-cutting, turnover in corporate leadership, or rapid franchisee onboarding that affects system stability.
| Aspect | Private Equity | Venture Capital |
|---|---|---|
| Stage of Investment | Mature or established businesses | Early-stage or startup companies |
| Ownership Stake | Often majority or controlling interest | Minority stake with high growth potential |
| Risk Profile | Lower risk with a focus on cash flow and optimization | High risk, high reward potential |
| Use in Franchising | Acquires franchisor systems or multi-brand platforms | Funds fast-growing franchisors seeking national scale |
| Exit Strategy | Resale, IPO, or recapitalization | IPO or acquisition by larger investors or PE firms |
| Example in Franchising | Roark Capital acquiring Dunkin’ Brands | VC funding Orangetheory Fitness during early growth |
Private equity plays a significant role in the evolution and expansion of modern franchise systems. While it brings capital, expertise, and growth opportunities, it can also alter the culture and strategic direction of a franchise brand. Franchisees should stay informed when a private equity firm acquires their franchisor, as changes in leadership or business focus may directly impact system operations and expectations. Understanding how private equity functions within franchising is key to anticipating and adapting to shifts in the franchise landscape.
Low cost franchise refers to a franchise opportunity that requires a relatively small initial investment, often under $150,000, including franchise fees, equipment, and working capital. It is designed to make franchise ownership more accessible to a wider range of investors. In franchising, low cost franchises appeal to entrepreneurs seeking affordable business entry points, but they often come with higher risk factors.
Low cost franchise opportunities are franchise businesses that have a lower initial investment compared to traditional or large-scale franchise models. These franchises may operate from home, online, mobile units, kiosks, or small leased spaces, and often have minimal staffing, equipment, and infrastructure needs. While the lower entry price can make franchising more financially accessible, it often also means that the business has smaller brand recognition, lower revenue potential, thinner profit margins, and less operational support. Prospective franchisees must carefully assess whether the long-term earning opportunities justify the initial savings. Many low cost franchises succeed, but statistically, they face a higher potential for failure compared to larger, more established franchise systems with greater brand strength and operational support.
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The concept of a low cost franchise gained popularity during economic downturns, especially during the 1980s and again after the 2008 financial crisis, when entrepreneurs sought affordable, lower-risk ways to control their careers. Franchisors responded by developing leaner business models that required less upfront investment. Over time, industries such as cleaning services, mobile food trucks, health and wellness coaching, and business consulting emerged as common categories for low cost franchises. While these models made franchise ownership more attainable, they also highlighted the challenges of competing without the deep financial, marketing, and staffing resources available to higher-cost franchise systems.
Low cost franchise opportunities offer a more affordable path into franchise ownership, lowering barriers to entry for aspiring entrepreneurs. However, the lower investment often correlates with reduced brand strength, limited support systems, and higher operational risks. Careful due diligence, realistic financial planning, and a strong personal commitment are essential for turning a low cost franchise into a long-term success story.
Substantive change refers to a material alteration in the information provided in a franchisor’s Franchise Disclosure Document (FDD) that significantly affects the franchise relationship. It requires prompt disclosure to prospective franchisees and often triggers re-registration or filing obligations. In franchising, a substantive change ensures that franchisees receive up-to-date and accurate information before making investment decisions.
Substantive change in franchising means a major modification to any important part of the franchisor’s disclosure documents or business operations that could reasonably impact a prospective franchisee’s decision to invest. Examples include changes in management, litigation status, fees, financial performance representations, or major franchise system modifications. When a substantive change occurs, franchisors are legally required to update their FDD and, in registration states, amend their state registration. Critically, after a substantive change, franchisors must re-disclose the updated FDD and restart the required waiting period under the "14-day rule," meaning the prospective franchisee must have the updated FDD for at least 14 full days before signing any binding agreement or paying any money. This process ensures that franchisees always make decisions based on the most current and accurate information available.
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| Step | Action Required | Notes |
|---|---|---|
| 1 | Identify the Substantive Change | Evaluate whether the change could impact a prospective franchisee’s decision to buy. |
| 2 | Update the Franchise Disclosure Document (FDD) | Incorporate all necessary changes into the FDD clearly and accurately. |
| 3 | File Amendment (if in a Registration State) | Submit the amended FDD to state regulators and await approval if required. |
| 4 | Re-Disclose Updated FDD to Prospects | Provide the updated FDD to any prospective franchisee before proceeding. |
| 5 | Restart the 7-Day Waiting Period | The prospect must have the updated FDD at least 7 full days before signing or paying anything. |
The concept of substantive change became prominent with the establishment of the Federal Trade Commission’s Franchise Rule in 1979, which emphasized full and accurate disclosure in franchising. As the industry expanded, regulators and courts recognized that merely providing an annual update was insufficient if significant events occurred mid-year. States like California and Minnesota led the movement by requiring mid-year amendments to franchise registrations. Today, detecting and disclosing substantive changes—and honoring the 7-day waiting period after redisclosure—is a standard and critical part of compliance protocols for all reputable franchisors.
Substantive change is a key compliance trigger in franchising, requiring franchisors to update their disclosure documents and re-disclose to prospects. Whenever a substantive change occurs, franchisors must ensure they restart the 7-day waiting period under federal law, giving prospective franchisees time to fully review the updated information. Timely and transparent handling of a substantive change protects both the franchisor and the franchisee, supporting a fair and lawful sales process.
Fee deferral status refers to an arrangement where young and inexperienced franchisors are required by registration states to delay collecting certain fees, usually initial franchise fees, until specific conditions are met, often after a franchise agreement is signed. It can help franchisors comply with franchise registration requirements before full approval is granted. In franchising, fee deferral status is a regulatory tool that allows conditional franchise sales activity without immediate payment collection.
Fee deferral status in franchising occurs when a franchisor is permitted to sign franchise agreements but must defer collecting any money—including initial franchise fees—until the franchisor’s registration or renewal is fully approved by the state. This status typically arises during the pending registration or renewal periods when a franchisor’s documents are under review by state examiners. Under fee deferral status, a franchisor may execute agreements and prepare franchisees for operations but cannot legally receive payment until full registration approval is granted. This mechanism allows franchise development to continue without violating franchise sales laws, provided that all regulatory deferral rules are strictly followed and no fees are collected early, even informally.
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The concept of fee deferral status emerged as a practical solution in states with strict franchise registration laws, such as California and Minnesota, to accommodate the sometimes lengthy review periods for franchise registration renewals. Lawmakers and regulators recognized that franchisors and franchisees needed flexibility to move forward with agreements without jeopardizing compliance. Fee deferral status provided a balanced approach: allowing legal contract execution while preventing any monetary exchange until proper regulatory oversight was completed. Today, franchisors often use fee deferral status strategically during renewal seasons to avoid losing valuable prospects while still honoring legal requirements.
Fee deferral status allows franchisors to legally continue signing franchise agreements without collecting fees while their registration or renewal is pending approval. It is a carefully regulated tool designed to balance operational progress with legal compliance. Used properly, fee deferral status helps franchisors maintain momentum without breaching important franchise laws.
In the context of franchise registration, dark refers to a franchisor’s status when it is not currently approved or registered to offer or sell new franchises in a disclosure state. A dark status typically results from an expired, withdrawn, or pending franchise registration application, and prohibits new franchise sales in that jurisdiction until approval is reinstated.
When a franchisor is described as dark in a franchise disclosure or registration state, it means the franchisor is not legally authorized to offer or sell franchises in that state due to the lack of an active and approved registration. Disclosure states—also known as registration states—require franchisors to file and receive approval of their Franchise Disclosure Document (FDD) before engaging in any franchise sales activities within their borders. If the registration expires, is under renewal review, is withdrawn, or has been denied, the franchisor is considered “dark” and must pause all franchise sales in that state.
Being dark in a state does not necessarily indicate wrongdoing or a permanent issue; it may be temporary and procedural, such as awaiting state approval during the annual renewal process. However, operating or soliciting franchisees while dark is a serious legal violation that can result in penalties, rescission rights, or litigation. Franchisors must track their registration status closely to avoid inadvertently marketing or selling in states where they are not currently approved.
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The term dark began as a reference to individual franchise units that had ceased operations but evolved in legal and franchise development circles to also describe a franchisor’s inability to sell in a regulated state. As more states adopted franchise registration requirements, franchisors needed to coordinate multiple filing deadlines and approval processes. The idea of a franchisor being “dark” in a state became a shorthand used by legal and development teams to identify jurisdictions where sales activity must be paused.
Especially during annual renewal periods (usually around April and May), many franchisors experience short dark periods while their registration applications are under review. This status requires internal communication and strict compliance measures to ensure no offers are made in violation of state law.
In franchise registration states, being dark means a franchisor is not currently authorized to offer or sell franchises due to a lapsed or pending registration. This status can be temporary but carries serious compliance implications. Staying aware of registration deadlines and avoiding franchise sales while dark is essential to maintaining legal and ethical franchise operations.
The Large Investor Exemption is a legal provision under the FTC Franchise Rule that allows franchisors to forego providing a Franchise Disclosure Document (FDD) when the franchisee is making a qualifying large investment, subject to certain federal and state requirements. This exemption assumes that such investors have the sophistication to evaluate franchise opportunities independently. Its application, however, varies by state.
The Large Investor Exemption allows franchisors to bypass the federal requirement to provide an FDD when the franchisee is investing at least $1,165,300 (as of the most recent FTC adjustment). To qualify, the investor must confirm in writing that they meet or exceed the investment threshold, and the amount must be paid before operations commence. The FTC justifies this exemption on the grounds that large investors are capable of performing due diligence without the need for mandated disclosure.
However, while this exemption is recognized at the federal level, franchise registration states may interpret or apply it differently. Some states accept the FTC exemption outright, while others require state-specific filings or do not allow the exemption at all. Therefore, franchisors must carefully examine how each state handles the exemption before assuming it applies.
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The Large Investor Exemption was introduced in 2007 as part of the revised FTC Franchise Rule. Its intent was to modernize franchise regulations and make exemptions available for investors presumed to be more sophisticated. Over time, this exemption became a useful tool for franchisors working with high-net-worth individuals or investment firms. However, because franchise law in the U.S. operates under a dual regulatory structure—federal and state—its acceptance is not uniform across all jurisdictions.
In practice, franchisors often consult experienced franchise counsel to determine whether the exemption is recognized in the target state and what additional documentation, if any, must be filed. This ensures compliance and minimizes legal risk during franchise sales.
Below is how each of the 14 franchise registration states treat the Large Investor Exemption:
In all states, even if the exemption applies, franchisors are advised to retain written documentation from the franchisee confirming the level of investment and their understanding of the exemption.
The Large Investor Exemption allows franchisors to avoid standard disclosure obligations when working with well-capitalized franchisees, but its application varies widely among registration states. Understanding both federal requirements and individual state interpretations is essential before relying on this exemption. For franchisors aiming to use the Large Investor Exemption, proper documentation and legal consultation are key to compliance and successful franchise transactions.
Ethical franchising refers to the practice of conducting franchise relationships and agreements with honesty, transparency, and fairness. It emphasizes mutual respect, legal compliance, and the long-term success of both franchisor and franchisee. Ethical franchising avoids exploitative practices and prioritizes trust.
Ethical franchising is a standard of behavior and business practice within the franchise relationship that focuses on integrity, transparency, and fair dealings between franchisors and franchisees. This concept goes beyond legal compliance—it reflects a commitment to doing what is right, even when not required by law. For franchisors, this may mean offering full disclosure, supporting franchisees adequately, and not using their contractual power to disadvantage the franchisee. For franchisees, it includes honest representation, operational compliance, and working collaboratively within the brand system. In the context of the franchise agreement, ethical franchising is reflected in fair terms, reasonable performance standards, clear expectations, and dispute resolution methods that prioritize mutual benefit.
The concept of ethical franchising gained traction in the late 20th century as franchising expanded globally and industry stakeholders began advocating for best practices to reduce franchisee exploitation. Organizations like the International Franchise Association and the World Franchise Council began promoting ethical codes of conduct, emphasizing relationship health as essential to system success. Over time, as franchise disputes made headlines, both regulators and advocacy groups pushed harder for ethical approaches to balance the power dynamics inherent in franchise contracts. Today, ethical franchising is seen not only as a moral imperative but also as a commercial strategy to build strong, sustainable franchise networks.
Ethical franchising is the foundation of a healthy and sustainable franchise relationship, ensuring fairness and integrity in both the franchise agreement and day-to-day operations. By prioritizing transparency, legal fairness, and mutual respect, ethical franchising fosters trust and long-term success for everyone involved.
Short Definition:
In the context of franchising, "Family Expenses" refers to personal expenditures incurred by the franchisee and their immediate family that are not directly related to the operation of the franchise business.
Long Definition:
"Family Expenses" encompass all costs and financial commitments that pertain to the personal life of the franchisee and their family, such as household bills, personal debts, leisure activities, and education costs. These expenses are distinctly separate from business expenses and must not be confused with or improperly charged to the franchise business accounts as per standard franchise agreements. Proper management of family expenses is crucial to maintaining a clear financial boundary between the franchisee’s personal and business finances, which is essential for accurate bookkeeping and financial planning. Also see 'Personal Living Expenses'
History and Usage:
The differentiation between business expenses and family expenses became prominent as franchising models evolved to include detailed financial reporting and stricter compliance regulations. This distinction is crucial in maintaining transparency and accountability in the franchise relationship. It helps in ensuring that the franchisor can accurately assess a franchise's performance without the ambiguity of personal expenditures affecting the business's financial statements.
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Five Questions Often Asked:
Example Sentences:
Summary:
The concept of "Family Expenses" in franchising is foundational to ensuring a clear demarcation between personal and business financial practices. Properly managing these expenses not only helps maintain the integrity of financial reporting within the franchise but also safeguards the franchisee’s financial health by preventing the intermingling of funds. This distinction is essential for upholding the terms of the franchise agreement and fostering a successful, compliant franchise operation.
Franchised Unit is a franchise term that is used interchangeably with 'Franchised Outlet'.
To understand Franchised Unit, click here to go to Franchised Outlet
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