Can They Really Do That? Franchisees' Liability for Lost Future Royalties after Store Failure
In its recent decision of Meineke Car Care Centers, Inc. v. RBL Holdings, LLC, et al., Case No. 09-2030, Bus. Franchise Guide (CCH) ¶ 14,586 (decided April 14, 2011), the United States Court of Appeals for the Fourth Circuit provided valuable guidance on one of the most important legal issues for franchisors and franchisees. Specifically, if a franchisee closes franchised businesses that it can no longer afford to operate, can its franchisor obtain a judgment for “lost future royalties” that it would have earned had the businesses continued to operate?
In this Meineke case, the trial court had granted summary judgment dismissing the franchisor’s claim, on the bases that: (1) the franchise agreement did not state that the franchisee would be liable for royalties even if the business closed, and (2) even if Meineke had the right to seek lost future profits due to the franchisee’s closure of the stores, the claim failed because Meineke could not prove that it was “reasonably certain” that such profits would have been realized if the stores had not been closed. The U.S. Court of Appeals disagreed on both points and remanded the case for trial on Meineke’s claim.
On the first point, the court held that the parties are not required to specify in the Franchise Agreement all categories of potential damages each could seek as a result of the other’s breach. Rather, the standard is whether, at the time of entering into the agreement, “lost profits may reasonably be supposed to have been within [the parties’] contemplation as a probable result of [the franchisee’s] premature closure of the Shops.” A specific statement in the Franchise Agreement that the franchisee would be liable for all royalties throughout the term of the agreement would have been powerful evidence of the parties’ understanding when they signed the contracts. However, it was not the only admissible evidence of the parties’ “contemplation” on that issue, and therefore a factual dispute on that point existed – making it an issue for the jury to decide.
On the second point, the court emphasized that the royalties payable to Meineke were calculated from a percentage of the Stores’ gross revenue, not net profits. The court found that Meineke had demonstrated “with reasonable certainty” that, except for the franchisee’s breach of the agreements by closing the Shops, some revenue and therefore some lost royalties would have been realized. Thus, a trial was necessary to determine the amount of those lost “profits” with reasonable certainty.
However, at the trial, it would be relevant in making that determination how long it would have been “commercially feasible” to continue to operate each of the Shops, based on its historical net profits to the owner. In other words, the fact finder’s decision of how long it was “commercially feasible” to expect the franchisee to keep the doors open would determine the amount of the lost future royalties damages.
The takeaways:
- the only way that a franchisee and its personal guarantors can be sure that they will not be liable for lost future royalties if the franchise fails is to insist upon language in the franchise agreement eliminating (or limiting) the franchisor’s right to those damages.
- if a franchised store ceases operations and truly “goes dark” due to ongoing net operating losses, at trial on a claim for lost future royalties the franchisor will need to be able to demonstrate that it was “commercially feasible” for the franchisee to remain open and, if so, provide some reasonable basis for the fact finder to determine how long the store should have remained open.
Given the uncertainty and fact intensive nature of such a case, it is probably in the best interests of both the franchisor and the franchisee to directly address the issue in the written agreement the franchisor’s right to “lost future royalties” and an agreed upon method to calculate those “damages.”
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