USA Trends and Developments Contributed by: Carmen D. Caruso, Carmen D. Caruso Law Firm
produces substantial anti-competitive effects in the relevant market. See Ohio v Am Express Co , 585 US 529, 541–42 (2018). Those effects may be proven with direct evidence (eg, increased prices, reduced output or diminished quality) or with indirect evidence (eg, market power coupled with some ground for believing that the restraint could harm competition). Id. Where substantial anti-competitive effect is shown, the bur - den shifts to the franchisor to establish a pro-compet - itive justification, and upon making such a showing the franchisee can still argue that the restraint’s objec - tives could be achieved through substantially less restrictive means. Id at 542. This is a heavy burden. These claims are fact-intensive and expensive, and franchisees frequently lose because vertical restraints may promote inter-brand competition even when they restrict competition among franchisees or dealers selling the same brand. See Sylvania , 433 US at 49, 51–55; Leegin Creative Leather Prods , Inc v PSKS , Inc , 551 US 877, 889–92 (2007). The continued impact of Sylvania is difficult to exagger - ate. With reduced fear of antitrust liability, franchisors are more powerful in relation to their franchisees or dealers to the point that many franchisees question whether they are truly independent businesses. The Crazy Quilt of US Franchise Law Franchise regulation in the United States is a “crazy quilt”. There is no comprehensive federal franchise relationship statute. The Federal Trade Commission (FTC) Franchise Rule prohibits franchise sellers from disseminating financial performance representations unless: • the franchisor has a reasonable basis and written substantiation; • the representation is included in Item 19 of the disclosure document; and • there is a clear and conspicuous admonition that a new franchisee’s individual financial results may differ from any stated representation. (See 16 CFR Sections 436.5 and 436.9.) Franchisees who believe they were misled in the sales process generally resort to state-law claims for fraud or mis - representation under common law or under state franchising or consumer protection laws (“Little FTC
Acts”) that vary widely across the country (as there is no private right of action for alleged violations of the FTC Franchise Rule). In these cases, franchisees must typically overcome the disclaimers, “no reli - ance” clauses and integration clauses included by franchisors in most franchise agreements, and, more likely than not, the franchisee’s strongest claim will be based on the omission of material information that allegedly caused an otherwise truthful FDD to be materially misleading. Historically the FTC Franchise Rule did not regulate franchise relationships during the term of the franchise agreement or at its expiry. Post- Sylvania , post-sale issues – eg, restrictions on products, services and suppliers, encroachments, restrictions on selling the business, terminations, non-renewals and post-term covenants – are left largely to state law and to the parties’ franchise agreements, which are typically contracts of adhesion. The resulting patchwork var - ies from state to state, creating compliance complex - ity for multi-state systems and uneven protection for franchisees. In 2024, the FTC took its first steps towards regulat - ing franchise relationships post-sale by issuing guid - ance to clarify that franchisors cannot introduce new or increased fees through operations-manual chang - es or other post-sale mechanisms without appro - priate FDD updates and disclosures; however, the Commission stopped short of requiring franchisors to secure the agreement of current franchisees to these changes, and thus current franchisees remain unprotected. Relatedly, the North American Securi - ties Administrators Association’s 2025 guidance pres - sures franchisors to update FDDs promptly when economic inputs shift construction and fit-out costs, labour, financing, technology fees, supplier rebates and advertising-fund economics, but again this does benefit current franchisees. In 2024, the FTC also took the position that non-dis - paragement, confidentiality or goodwill clauses that effectively prevent franchisees from communicating with government agencies may constitute unfair or deceptive acts. The FTC Franchise Rule expressly prohibits franchisors from disclaiming or requiring a prospective franchisee to waive reliance on any rep -
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