General Business and Finance Blog

Evaluating franchise attorneys and evaluating franchise consultants can seem a daunting task. But the firm a company selects to assist its entry into franchising, refine existing franchise efforts or make franchise opportunity investment decisions will have profound consequences. While asking for a list of references is one approach (and when is anyone ever dumb enough to provide a bad reference?) there are more objective criteria that are not dependent on selectively disseminated information.

By addressing the nine Franchise Questions, topics and subcategories of information discussed below, you will eliminate virtually 95% of the individuals or firms you are considering. Then efforts can concentrate on evaluating the 5% cream of the crop (especially franchise attorneys) that truly merit consideration:

A. FRANCHISE EXPERT:
The #1 factor in evaluating so-called expertise – are the principals really franchise experts? There are objective criteria to determine this:

(1) Have they qualified and been allowed to testify as a franchise expert in court and arbitration proceedings? Being involved as a franchise expert in the franchise litigation process gives a sensitivity and radar for detecting and avoiding future franchise problems.

(2) How many books on franchising have been written by the principals?

(3) How many franchise articles have been published in journals or magazines?

(4) What is their franchise-related teaching experience? (see topics E and F below)

(5) What is their depth of experience in the franchise industry? (see next topic below)

B. EXPERIENCE IN THE FRANCHISE INDUSTRY:
(1) Length of time the firm has operated exclusively in the franchise industry?

(2) Experience on both sides of the franchise fence – working with franchise companies (franchisors) as well as with individual investors (franchisees) who have purchased a franchise?

(3) Past experience principals have owning and operating a franchised business? This factor is absolutely critical. If the principals have owned and operated a franchise, they bring a unique perspective and radar for avoiding future franchise relationship problems from disgruntled franchise owners.

C. COMPREHENSIVE TRAINING & ONGOING SERVICES; CONTROL SYSTEMS:
(1) Can (and will) the firm train your personnel to operate and manage your new franchise company? Remember, you’re entering an entirely different business, one requiring new skills and abilities. If this topic is not addressed in detail, you might as well earmark the franchise fees received when you sell franchises for a future franchise litigation war chest;

(2) Will the firm help you review and update operational (franchise operations manual) and legal documentation (franchise offering circular) on an ongoing basis?

(3) Has the firm developed, and will they help you put into place, franchise marketing, sales control and legal compliance programs during the critical implementation (start-up) phase of your franchise program?

The existence of these programs is essential to ensure only the cream of franchise applicants are allowed to enter the network, and to create a series of documented files should a dispute arise in the future. Most of the legal risk in franchising occurs during the franchise marketing cycle when franchises are sold. If your company’s done a good job here with these programs, then you’ve eliminated most of the risk.

D. LEGAL: FRANCHISE ATTORNEY
(1) Is the law practice devoted exclusively to franchise law?

(2) Total number of franchise disclosure documents (formerly called franchise offering circulars) drafted and reviewed?

(3) Experience filing franchise registrations and working with state examiners in all 14-plus franchise registration states?

(4) Experience represeting franchise companies as well as persons buying a franchise? Knowing both sides of the fence is a tremendous asset.

E. ACADEMIC: UNIVERSITY & COLLEGE
Experience teaching franchise courses at graduate and undergraduate university levels?

F. ACADEMIC: PROFESSIONAL
Experience teaching franchise courses to franchise attorneys and general practice attorneys?

G. BLEND OF BUSINESS & LEGAL SKILLS:
Specialist franchise attorneys and law firms produce tight legal agreements (sometimes overly so leading to future franchise relationship problems) and usually adequate franchise offering circulars. Setting aside the overly tight contract issue, the problem is most franchise attorneys – franchise lawyers are not capable of making sound, strategic business decisions and providing practical, ongoing advice. Some franchise consultants, on the other hand, have good business sense, but lack the requisite legal skills. Questions:

(1) Does the firm have the proper blend of business savvy and in-house franchise legal expertise? It’s always a big plus if the franchise attorney also has an MBA. You can do a Google search with these twin attributes (franchise attorney MBA) and narrow the field considerably.

(2) Can the firm produce good legal documentation (franchise disclosure documents) and help you edit (or create) consistent operational documents (such as the franchise operations manual, training program, etc.) If your franchise agreement says “x” but your franchise operations manual or advertising materials say “y” about the same issue, be prepared to pay hefty franchise litigation fees and deal with franchise litigation attorneys in the future.

(3)Can the firm provide competent and practical ongoing advice in critical areas like effective franchise marketing, media decisions, interviewing franchise buyers, adopting the best franchise organizational structure, implementing a franchise advisory council, etc? Mistakes made in these areas can easily cost the franchise company tens, if not hundreds of thousands of dollars.

H. CONTRACT FAIRNESS:
Does the firm give you an option of choosing between:
(a) an hourly rate and
(b) a flat contract amount, where you don’t have to worry about accumulated hours and an unknown total amount?

I. RED FLAGS – BEWARE OF ANY OF THE FOLLOWING:

• Combination teams where one entity does one part of the project and another the other part. For example, a consulting firm does planning, and operational documentation, while an attorney “they know very well” writes the legal documentation.

• Or, a variant of the above, the company in the “fine print” of its contract, requires your attorney (who you obviously have to pay) to review and approve everything they do because the company (it says) is not rendering legal advice. Actually, by providing documents that affect legal rights, they are rendering legal advice, but in an illegal manner. It’s called the unauthorized practice of law. You end up paying two attorneys – yours and theirs. Besides the expense, it sets you up for future franchise problems. Their attorney represents who? The franchise packaging group, of course, and definitely not you. He or she is typically a recent law school graduate who hasn’t figured out what they’re doing is illegal and could cause them to lose their license to practice law. Besides that, they represent the franchise consulting group, whose interest is to churn as many franchise packages per year as possible. You end up with a bad franchise disclosure document and sloppy franchise operations manuals. To save time, the franchise agreement gets watered down so it’s easier to push through some franchise registration states. Some of the “t’s” may be crossed and some of the “i’s” dotted, but not most of them. The end product are documents that set you up for future franchise litigation difficulties.

• Firms that advise you to franchise your business, and they’ve never seen your business! You’d be surprised how often this happens.

• Firms that say they’ll write your franchise operations manual for you. How someone, who knows absolutely nothing about your business, could ever come close to anything but a mediocre product at best, is a frightening thought. The use of boilerplate manuals produced by consulting groups is yet another future litigation time bomb. You are the true expert in your business. With competent guidance and editing, you’ll be able to produce a professional and workable operations manuals, if you don’t have these already.

• Pricing quotes that seem exceedingly high or low (especially “do-it-yourself” franchise kits).

• If you are buying a franchise, BEWARE of any attorney recommended by the franchise company. Even worse, beware of franchise companies who say you don’t need to use an attorney. There are a couple of these online.

• Firms (or individuals) that have EVER been sued for fraud, misrepresentation, the unauthorized practice of law or violating any franchise law. DON’T FORGET TO ASK THIS CRITICAL QUESTION!!

©1990-2008, Kevin B. Murphy, B.S., M.B.A., J.D. – all rights reserved

For more informaton, consult the Franchise Foundations website.

Avoiding the top 7 business financing mistakes is a key component in business survival.If you start committing these business financing mistakes too often, you will greatly reduce any chance you have for longer term business success.The key is to understand the causes and significance of each so that you’re in a position to make better decisions.>>> Business Financing Mistakes (1) – No Monthly Bookkeeping.Regardless of the size of your business, inaccurate record keeping creates all sorts of issues relating to cash flow, planning, and business decision making.While everything has a cost, bookkeeping services are dirt cheap compared to most other costs a business will incur.And once a bookkeeping process gets established, the cost usually goes down or becomes more cost effective as there is no wasted effort in recording all the business activity.By itself, this one mistake tends to lead to all the others in one way or another and should be avoided at all costs.>>> Business Financing Mistakes (2) – No Projected Cash Flow.No meaningful bookkeeping creates a lack of knowing where you’ve been. No projected cash flow creates a lack of knowing where you’re going.  Without keeping score, businesses tend to stray further and further away from their targets and wait for a crisis that forces a change in monthly spending habits.Even if you have a projected cash flow, it needs to be realistic. A certain level of conservatism needs to be present, or it will become meaningless in very short order.>>> Business Financing Mistakes (3) – Inadequate Working CapitalNo amount of record keeping will help you if you don’t have enough working capital to properly operate the business.That’s why its important to accurately create a cash flow forecast before you even start up, acquire, or expand a business.Too often the working capital component is completely ignored with the primary focus going towards capital asset investments.When this happens, the cash flow crunch is usually felt quickly as there is insufficient funds to properly manage through the normal sales cycle.>>> Business Financing Mistakes (4) – Poor Payment Management.Unless you have meaningful working capital, forecasting, and bookkeeping in place, you’re likely going to have cash management problems. The result is the need to stretch out and defer payments that have come due.This can be the very edge of the slippery slope.I mean, if you don’t find out what’s causing the cash flow problem in the first place, stretching out payments may only help you dig a deeper hole.The primary targets are government remittances, trade payables, and credit card payments.>>> Business Financing Mistakes (5) – Poor Credit ManagementThere can be severe credit consequences to deferring payments for both short periods of time and indefinite periods of time.First, late payments of credit cards are probably the most common ways in which both businesses and individuals destroy their credit.  Second, NSF checks are also recorded through business credit reports and are another form of black mark.Third, if you put off a payment too long, a creditor could file a judgement against you further damaging your credit.Fourth, when you apply for future credit, being behind with government payments can result in an automatic turndown by many lenders.It gets worse.Each time you apply for credit, credit inquiries are listed on your credit report.  This can cause two additional problems.  First, multiple inquiries can reduce you overall credit rating or score.  Second, lenders tend to be less willing to grant credit to a business that has a multitude of inquiries on its credit report.If you do get into situations where you’re short cash for a finite period of time, make sure you proactively discuss the situation with your creditors and negotiate repayment arrangements that you can both live with and that won’t jeopardize your credit.>>> Business Financing Mistakes (6) – No Recorded ProfitabilityFor startups, the most important thing you can do from a financing point of view is get profitable as fast as possible.Most lenders must see at least one year of profitable financial statements before they will consider lending funds based on the strength of the business.Before short term profitability is demonstrated, business financing is based primary on personal credit and net worth.For existing businesses, historical results need to show profitability to acquire additional capital.The measurement of this ability to repay is based on the net income recorded for the business by a third party accredited accountant.In many cases, businesses work with their accountants to reduce business tax as much as possible but also destroy or restrict their ability to borrow in the process when the business net income is insufficient to service any additional debt.>>> Business Financing Mistakes (7) – No Financing StrategyA proper financing strategy creates 1) the financing required to support the present and future cash flows of the business, 2) the debt repayment schedule that the cash flow can service, and 3) the contingency funding necessary to address unplanned or unique business needs.This sounds good in principle, but does not tend to be well practiced.Why?Because financing is largely an unplanned and after the fact event.It seems once everything else is figured out, then a business will try to locate financing.There are many reasons for this including: entrepreneurs are more marketing oriented, people believe financing is easy to secure when they need it, the short term impact of putting off financial issues are not as immediate as other things, and so on.Regardless of the reason, the lack of a workable financing strategy is indeed a mistake.However, a meaningful financing strategy is not likely to exist if one or more of the other 6 mistakes are present.This reinforces the point that all mistakes listed are intertwined and when more than one is made, the effect of the negative result can become compounded.

If you were to start committing any of the following 3 business financing mistakes too often, you would greatly reduce your chances of long-term business success. And to be a success in business you have to think long-term. Track record and reputation in business is earned over time.  A good business track-record is largely judged on financial success and financial success in business is assessed largely through the examination of business accounts. Good business accounts demonstrate to banks, financiers, colleagues etc., that you are a bankable business person and will lead them to put their faith and money into you and your business ventures.By not committing any of the following 3 business finance mistakes you will, at the very least, have good financial indicators and be able to respond to the businesses financial position in time. The key here is to understand both the causes and significance of each. Business Financing Mistake # 1 – No Monthly BookkeepingRegardless of the size of your business, inaccurate record keeping creates all sorts of issues relating to cash flow, planning, and business decision making. In a word, your business is doomed if you are not doing monthly bookkeeping.Bookkeeping services are dirt cheap compared to most other costs a business will incur. Bookkeeping should be done on a monthly basis along with Management Accounts so that your financial records are always up to date and you can view the financial status of the business (Profit and Loss, Balance Sheet etc.,)Once a bookkeeping process gets established, the cost and time involved usually goes down.  By itself, this one mistake tends to lead to all the others in one way or another and should be avoided at all costs.Business Financing Mistakes # 2 – No Projected Cash Flow & BudgetHaving no meaningful bookkeeping creates a lack of knowledge on where you are. And having no projected cash flow and budget creates a lack of knowledge about where you’re going.  Without keeping score, a business tends to stray further and further away from its targets and, invites a crisis that eventually forces the business to change it monthly spending and cash-management habits.A projected cash flow first and foremost needs to be realistic. You should project both a best-case and worst-case scenario based on projected sales and business expenditures. It’s a good idea to aim for the best-case scenario but know how the business would respond should the worst-case scenario transpire.Business Financing Mistakes # 3 – Inadequate Credit ControlThere’s nothing worse than making sales, doing the work, sending your customer an invoice and then not getting paid on time…or worse still not getting paid at all! It’s a well-established fact that the longer a debt isn’t collected the less chance it will be collected. Typical credit terms in most established business are 30 days. However, due to a culture amongst some customers of paying late and small business not operating strict credit control, a business can often not get paid on time and fast run out of cash. So how do you avoid this? Well, there are numerous steps you can take but the following 3 steps will help ensure you always get paid…and paid on time.1.Appoint someone in the business to be in charge of credit control. It’s vital that someone is responsible for sending out invoices and statements; reminding the customer that payment is due, handling queries on invoices etc.2.Reinforce your payment terms and conditions on your contracts, on your website, on your invoices etc. It’s important that customers are aware of your payment terms and the consequences of late payment (cessation of service, interest charges etc.,)3.Send your invoices on time and include a statement of the account with each invoice. If you don’t send your invoice out at the end of each month how can you expect to get paid before the end of the following month.In a world of tightening credit from banks, strict business finance practices are required even more. You can’t expect your bank to extend your overdraft or facilitate a term loan if you are guilty of any of the 3 above financing mistakes.There’s so much more to business finance and money management than I have covered in this article that I could write a whole book on it! But for the moment if you are starting out or taking over the running of a business and are experiencing working capital or cash-flow difficulties than I would first start investigating these 3 key areas and see that they are being managed diligently. If you do this, than many of your cash-flow difficulties will begin to disappear and your business finances will improve quickly (assuming your business proposition is sound in the first place and sales are strong). Find out more about business, personal finance and wealth creation strategies by signing up NOW at www.MillioniareMindsetSecrets.com.

Evaluating franchise attorneys and evaluating franchise consultants can seem a daunting task. But the firm a company selects to assist its entry into franchising, refine existing franchise efforts or make franchise opportunity investment decisions will have profound consequences. While asking for a list of references is one approach (and when is anyone ever dumb enough to provide a bad reference?) there are more objective criteria that are not dependent on selectively disseminated information.

By addressing the nine Franchise Questions, topics and subcategories of information discussed below, you will eliminate virtually 95% of the individuals or firms you are considering. Then efforts can concentrate on evaluating the 5% cream of the crop (especially franchise attorneys) that truly merit consideration:

A. FRANCHISE EXPERT: The #1 factor in evaluating so-called expertise – are the principals really franchise experts? There are objective criteria to determine this:

(1) Have they qualified and been allowed to testify as a franchise expert in court and arbitration proceedings? Being involved as a franchise expert in the franchise litigation process gives a sensitivity and radar for detecting and avoiding future franchise problems.

(2) How many books on franchising have been written by the principals?

(3) How many franchise articles have been published in journals or magazines?

(4) What is their franchise-related teaching experience? (see topics E and F below)

(5) What is their depth of experience in the franchise industry? (see next topic below)

B. EXPERIENCE IN THE FRANCHISE INDUSTRY: (1) Length of time the firm has operated exclusively in the franchise industry?

(2) Experience on both sides of the franchise fence – working with franchise companies (franchisors) as well as with individual investors (franchisees) who have purchased a franchise?

(3) Past experience principals have owning and operating a franchised business? This factor is absolutely critical. If the principals have owned and operated a franchise, they bring a unique perspective and radar for avoiding future franchise relationship problems from disgruntled franchise owners.

C. COMPREHENSIVE TRAINING & ONGOING SERVICES; CONTROL SYSTEMS: (1) Can (and will) the firm train your personnel to operate and manage your new franchise company? Remember, you’re entering an entirely different business, one requiring new skills and abilities. If this topic is not addressed in detail, you might as well earmark the franchise fees received when you sell franchises for a future franchise litigation war chest;

(2) Will the firm help you review and update operational (franchise operations manual) and legal documentation (franchise offering circular) on an ongoing basis?

(3) Has the firm developed, and will they help you put into place, franchise marketing, sales control and legal compliance programs during the critical implementation (start-up) phase of your franchise program?

The existence of these programs is essential to ensure only the cream of franchise applicants are allowed to enter the network, and to create a series of documented files should a dispute arise in the future. Most of the legal risk in franchising occurs during the franchise marketing cycle when franchises are sold. If your company’s done a good job here with these programs, then you’ve eliminated most of the risk.

D. LEGAL: FRANCHISE ATTORNEY (1) Is the law practice devoted exclusively to franchise law?

(2) Total number of franchise disclosure documents (formerly called franchise offering circulars) drafted and reviewed?

(3) Experience filing franchise registrations and working with state examiners in all 14-plus franchise registration states?

(4) Experience represeting franchise companies as well as persons buying a franchise? Knowing both sides of the fence is a tremendous asset.

E. ACADEMIC: UNIVERSITY & COLLEGE Experience teaching franchise courses at graduate and undergraduate university levels?

F. ACADEMIC: PROFESSIONAL Experience teaching franchise courses to franchise attorneys and general practice attorneys?

G. BLEND OF BUSINESS & LEGAL SKILLS: Specialist franchise attorneys and law firms produce tight legal agreements (sometimes overly so leading to future franchise relationship problems) and usually adequate franchise offering circulars. Setting aside the overly tight contract issue, the problem is most franchise attorneys – franchise lawyers are not capable of making sound, strategic business decisions and providing practical, ongoing advice. Some franchise consultants, on the other hand, have good business sense, but lack the requisite legal skills. Questions:

(1) Does the firm have the proper blend of business savvy and in-house franchise legal expertise? It’s always a big plus if the franchise attorney also has an MBA. You can do a Google search with these twin attributes (franchise attorney MBA) and narrow the field considerably.

(2) Can the firm produce good legal documentation (franchise disclosure documents) and help you edit (or create) consistent operational documents (such as the franchise operations manual, training program, etc.) If your franchise agreement says “x” but your franchise operations manual or advertising materials say “y” about the same issue, be prepared to pay hefty franchise litigation fees and deal with franchise litigation attorneys in the future.

(3)Can the firm provide competent and practical ongoing advice in critical areas like effective franchise marketing, media decisions, interviewing franchise buyers, adopting the best franchise organizational structure, implementing a franchise advisory council, etc? Mistakes made in these areas can easily cost the franchise company tens, if not hundreds of thousands of dollars.

H. CONTRACT FAIRNESS: Does the firm give you an option of choosing between: (a) an hourly rate and (b) a flat contract amount, where you don’t have to worry about accumulated hours and an unknown total amount?

I. RED FLAGS – BEWARE OF ANY OF THE FOLLOWING:

• Combination teams where one entity does one part of the project and another the other part. For example, a consulting firm does planning, and operational documentation, while an attorney “they know very well” writes the legal documentation.

• Or, a variant of the above, the company in the “fine print” of its contract, requires your attorney (who you obviously have to pay) to review and approve everything they do because the company (it says) is not rendering legal advice. Actually, by providing documents that affect legal rights, they are rendering legal advice, but in an illegal manner. It’s called the unauthorized practice of law. You end up paying two attorneys – yours and theirs. Besides the expense, it sets you up for future franchise problems. Their attorney represents who? The franchise packaging group, of course, and definitely not you. He or she is typically a recent law school graduate who hasn’t figured out what they’re doing is illegal and could cause them to lose their license to practice law. Besides that, they represent the franchise consulting group, whose interest is to churn as many franchise packages per year as possible. You end up with a bad franchise disclosure document and sloppy franchise operations manuals. To save time, the franchise agreement gets watered down so it’s easier to push through some franchise registration states. Some of the “t’s” may be crossed and some of the “i’s” dotted, but not most of them. The end product are documents that set you up for future franchise litigation difficulties.

• Firms that advise you to franchise your business, and they’ve never seen your business! You’d be surprised how often this happens.

• Firms that say they’ll write your franchise operations manual for you. How someone, who knows absolutely nothing about your business, could ever come close to anything but a mediocre product at best, is a frightening thought. The use of boilerplate manuals produced by consulting groups is yet another future litigation time bomb. You are the true expert in your business. With competent guidance and editing, you’ll be able to produce a professional and workable operations manuals, if you don’t have these already.

• Pricing quotes that seem exceedingly high or low (especially “do-it-yourself” franchise kits).

• If you are buying a franchise, BEWARE of any attorney recommended by the franchise company. Even worse, beware of franchise companies who say you don’t need to use an attorney. There are a couple of these online.

• Firms (or individuals) that have EVER been sued for fraud, misrepresentation, the unauthorized practice of law or violating any franchise law. DON’T FORGET TO ASK THIS CRITICAL QUESTION!!

©1990-2008, Kevin B. Murphy, B.S., M.B.A., J.D. – all rights reserved

For more informaton, consult the Franchise Foundations website.