How can a really sweet deal turn into a really bad nightmare? That is perhaps what two franchise founders are saying to each other about now. Michael and Kathy Butler (collectively the “Butlers”) are seasoned public relations folks. Michael Butler has had his own PR firm for 30 years. The Butlers came up with the idea to open a retail store that offered PR and marketing services to small businesses. They liked the concept so much, they decided to franchise it. They called the franchise the PR Shop. They contracted with a franchise broker to sell PR Shop franchises. The broker did a good job. A franchise prospect in New York wound up buying 20 franchise outlets.
Then the nightmare began. New York requires franchisors to complete a franchise registration prior to the offering or selling of franchises in the state of New York. PR Shop filed a franchise registration. But, it was not complete or effective at the time that the PR Shop franchises were sold to the prospect in New York. This was uncovered by the prospect turned franchisee. He called the state of New York wanting to complain about 20 PR Shop franchises.
Go no further. The franchise registration was not effective when the franchisee bought the franchises. The franchisor must offer the franchisee rescission. Rescission means, pretend like the franchise agreement was never signed and the franchisee gets all his money back.
One problem, by this time the franchise has dissolved. The franchise’s founders (the Butlers) have filed personal bankruptcy. This whole thing cannot be written off that easy. Can it? Really? No. The case is In re Michael L. Butler and Kathy H. Butler v. John Mangione. The bankruptcy court did not look fondly upon the Bulters’ conduct. The court found that Michael and Kathy Butler were personally liable to John Mangione, the New York franchisee. And, the Butler’s liability to Mr. Mangione was not dischargeable in bankruptcy. The Butlers must repay Mr. Mangione his initial franchise fees, for all 20 franchises + interest + Mr. Mangione’s attorney’s fees totally $714,000.
The Butlers broke state law by not completing the franchise registration prior to selling the franchises in New York. The Butlers did not hold the initial franchise fees in escrow as instructed by the state. Failure to put the initial franchise fees in escrow, in the court’s opinion, was akin to stealing. The Butlers committed fraud by misrepresenting to the franchisee that PR Shop was registered in New York. The court did not take a soft approach in this case.
Lesson from the Court: Register it before you sell it or the deal may be unraveled post facto.