Wiggin and Dana's nationally recognized Franchise and Distribution Practice Group offers a unique value proposition to our franchise and distribution clients: a deep bench of experienced lawyers at all levels and price points, working in a firm that is not burdened with the bureaucracy and overhead of many of our competitors. For nearly four decades, clients have turned to Wiggin and Dana's franchise lawyers to represent them in complex, sophisticated matters, whether they be transactional, regulatory, or litigation.
The firm's Franchise and Distribution Practice Group is consistently recognized by its peers and national publications for excellent client service and results. The Practice Group is nationally ranked by Chambers; the firm's franchise lawyers regularly receive top rankings in Chambers, Benchmark Litigation, the Franchise Times, and Best Lawyers; and BTI Consulting Group recognized the firm's associates in 2017 as some of the best in the nation. Lawyers in our Practice Group consistently serve in leadership positions in the American Bar Association (ABA) Forum on Franchising and write and contribute to books, articles, papers, and presentations on franchising for the ABA and the International Franchise Association.
We are franchise and distribution counsel to industry leaders, regularly representing prominent companies such as Doctor's Associates Inc. (the Subway® franchisor); Goddard Systems, Inc. (The Goddard School®); Wireless Zone, LLC; and Maaco Franchising, Inc. Our wide-ranging industry experience, which includes attorneys who have worked in-house for some of the world's largest franchisors, allows us to provide practical, real-world advice and solutions to franchisors and manufacturers of all sizes, industries, and business sectors. These include quick service restaurants, automotive aftermarket, hospitality and hotels, health care, early childhood education, consumer buying clubs, tax preparation, wireless communication, pest control, real estate brokerage, live action role playing, and alcoholic beverage distribution. We understand the issues that franchisors encounter, and consequently we are able to provide high-quality, creative, and cost-effective advice to our franchise and distribution clients.
Our regulatory and transactional services encompass the full breadth of issues affecting franchise and distribution systems. The firm guides companies on the initial decision whether to franchise, counsels on the myriad state and federal registration and disclosure laws, prepares franchise agreements and disclosure documents, develops internal policies and best practices for managing a franchise and distribution system, and assists franchisors in navigating relationships with franchisees, franchisee associations, suppliers, and other third parties. Our practice further extends to structuring and executing asset and stock transactions, the acquisition and sale of franchise systems, and advising on associated real estate matters.
Representative regulatory and transactional matters include
- Advising a large franchisor of over 300 units, concerning its due diligence and disclosure obligations in connection with its acquisition.
- Providing a large quick-service restaurant chain with assistance in developing and implementing a workout program for struggling franchisees.
- Serving as national franchise counsel to one of the largest medical-linen laundry and delivery chains in the U.S., including advising on relationship issues, system-wide franchise and ancillary contracts, internal and external policies, practices and system-standards franchise terminations, transfer, non-renewals, and litigation.
- Assisting a large, well-known quick-service restaurant franchisor with over 2,000 units, in reviewing and overhauling its franchise agreements and providing day-to-day advice on regulatory issues spanning multiple legal disciplines.
- Assisting franchisors to expand internationally by negotiating multi-unit development agreements, obtaining discretionary transactional exemptions, and working with local counsel to comply with applicable foreign laws.
Similarly, our franchise litigators have developed a reputation in the franchising community as the lawyers to contact when the stakes are the highest. We frequently represent franchisors, distributors, and manufacturers in litigating and arbitrating complicated, potentially bet-the-business or consumer disputes, including contract, false advertising, intellectual property, franchise statute, and Unfair and Deceptive Practice Act claims; consumer and franchisee mass or class actions; and vicarious liability, fraud, and other tort claims. The breadth and skill of our litigators is best shown in our track record of representative engagements, which include
- Representing a cell-phone store franchisor in a lawsuit brought by 120 franchisees (approximately 1/3 of the system) claiming that the franchisor breached their franchise agreements and committed various torts by impermissibly collecting a royalty on certain transactions. We succeeded in having the case transferred to the franchisor's home forum, successfully moved to have 10 of the franchisees' 13 claims dismissed, and then defeated a motion for preliminary injunction brought by 35 plaintiffs.
- Representing the Subway® franchisor in a well-publicized class action involving the length of footlong subs. The firm initially reached an injunctive-only class settlement before having to file any responsive pleadings or produce any formal discovery. Based on the record the firm developed before the matter settled, the Seventh Circuit reversed the settlement approval, finding that the record demonstrated that the underlying claims lacked merit. On remand, plaintiffs voluntarily dismissed the lawsuit. In re Subway Footlong Sandwich Marketing & Sales Practices Litigation, 869 F.3d 551 (7th Cir. 2017).
- Representing the former private equity owner of a buying club franchisor in a class action brought in federal court alleging (Racketeer Influenced and Corrupt Organizations Act (RICO) and FDUTPA claims and in a state court mass action alleging a panoply of common law and franchise statutory claims. The firm was able to get the federal case transferred to the franchisor's home forum and then convinced that federal court to dismiss the claims. After the franchisor's bankruptcy concluded, the state court matter settled. Elite Advantage, LLC v. Trivest Fund, IV, LP, 2016 WL 7409687 (N.D. Ind. Jan 14, 2016) (granting motion to dismiss); 2015 WL 4982997 (S.D. Fla. Aug. 21, 2015 (granting motion to transfer).
- Representing a medical device manufacturer in a breach of contract and Lanham Act false advertising case brought by its largest competitor, and obtaining summary judgment on the contract claim and partial summary judgment on the Lanham Act claim.
- Representing various clients, including franchisors, in TCPA class actions based on text messages that were purportedly sent without the recipients' consent.
- Winning a jury trial for the Schlotzsky's franchisor in the Western District of Texas, which defeated antitrust claims and preserved the franchisor's control over the system's supply chain, and later winning the appeal before the U.S. Court of Appeals for the Fifth Circuit.
- Winning a bench trial for the Subway® franchisor, defeating an attempt by the franchisee trustees of an advertising trust to require the franchisor to fund the trust in perpetuity, and establishing the franchisor's control over advertising of the Subway® brand ($600 million+ per year).
- For almost three decades, successfully enforcing the arbitration clause of a quick-service restaurant franchisor in the face of myriad attacks on its enforceability and applicability, including litigating and winning arbitration issues before the U.S. Supreme Court, multiple state courts, U.S. Courts of Appeals, and federal District Courts. See, e.g., Doctor's Associates, Inc. v. Repins, 2018 WL 513722 (D. Conn. Jan 22, 2018); Doctor's Associates, Inc. v. Burr, 2016 WL 7451620 (D. Conn. Dec. 28, 2016); Lee v. Doctor's Associates, Inc., 2016 WL 7332982 (E.D.Ky. Dec. 16, 2016); Doctor's Associates, Inc. v. Tripathi, 2016 U.S. Dist. LEXIS, 177595 (D. Conn. Nov. 3, 2016), (recommended ruling) and 2016 WL 7410782 (recommendation adopted); Doctor's Associates, Inc. v. Keating, 72 Conn. App. 310 (Conn App. Ct. 2002); Subway Equipment Leasing Co. v. Forte, 169 F.3d 324 (5th Cir. 1999); Doctor's Associates, Inc. v. Hamilton, 150 F.3d 157 (2d Cir. 1998); Doctor's Associates, Inc. v. Distajo, 107 F.3d 126 (2d Cir. 1997); Doctor's Associates, Inc. v. Stuart, 85 F.3d 975 (2d Cir. 1996); Doctor's Associates v. Casarotto, 517 U.S. 681 (1996).
In addition to its core Franchise and Distribution Practice Group, Wiggin and Dana has expertise in many other areas likely to affect the businesses of our franchise and distribution clients, including trademark registration, real estate, labor and employment, corporate structuring, immigration, and taxation.
We understand that outside counsel fees do not drive client profits, and we believe in a lean staffing approach. We do not throw bodies at matters—we staff them with the minimum number of lawyers to get the job done. Fewer lawyers with greater knowledge of the matter results in better communications with, and results for, our clients. Our success results from our ability to
- Offer skilled franchise law practitioners who possess a wide variety of experience and price points.
- Work closely with our clients to understand their business objectives and then apply legal strategies appropriate for achieving them.
- Staff matters leanly with attorneys at the appropriate level of experience and expertise for the project. We do not have multiple layers of lawyers working on matters, which ensures that the responsible Partner has direct involvement and gains a working knowledge of his/her matters.
- Set reasonable hourly rates and do our best to complete tasks and achieve results efficiently and quickly.
- Search for ways to avoid unnecessary expense and where appropriate, work with clients to develop alternative fee arrangements.
- Recognize that obtaining positive results and managing costs are not inconsistent.
- Try cases frequently in courts and before arbitrators. Although not all cases go to trial, we are always prepared and willing to try cases when appropriate. Our ability and willingness to take our cases to term enables our lawyers to gain leverage when negotiating settlements.
Finally, our culture sets us apart. We believe that the right result for the client is always paramount and that lawyers can provide excellent legal representation while being decent, collegial, ethical, and professional toward clients, colleagues, and adversaries.