Strategic Lawsuit Against Public Participation, SLAPP

Franchisees tend to get SLAPP-ed around a lot

Yes it is a cheap and easy win that sends a message primarily to discourage future troublemakers. But it destroys any chance for dialogue or trust between the bully, the bullied, and the bystander.

This is the main reason you see a lowering quality of behavior by the stakeholders: franchisors, lawyers, franchisees, media, politicians, etc. There are no innocent bystanders in this life: you knew or should have been expected to know. A failure to act is an action.

Definition of a Strategic Lawsuit Against Public Participation, SLAPP is:

a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

Winning the lawsuit is not necessarily the intent of the person filing the SLAPP.

The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism.

The last bit is very important as it relates to the franchise industry:

A SLAPP may also intimidate others from participating in the debate. [Wikipedia]

Each trademark franchise system is a complex, long-standing group that has a well developed institutuional memory:

a collective of facts, concepts, experiences and know-how held by a group of people. As it transcends the individual, it requires the ongoing transmission of these memories between members of this group. Elements of institutional memory may be found in corporations, professional groups, government bodies, religious groups, academic collaborations and by extension in entire cultures.

Business format franchising, in general, has its own ideology [beliefs, norms, philosophy].

One Response to Strategic Lawsuit Against Public Participation, SLAPP

  1. Carol Cross says:

    Of course, the standard boilerplate franchise agreement permits franchisors to silence dissent from franchisees within their systems. The terms upon which franchisors can terminate franchisees are open to interpretation by the franchisor who uses his discretion in the interpretation of the written terms that incur default.

    The courts have tried to stop abuses of the termination clauses in franchise contracts but most often, the weaker party, the franchisee, is further silenced in the usual mandated arbitration and doesn’t have the financial or the emotional resources to fight the system.

    Franchisees, current and former, have somewhat recently been using Internet Sites devoted to franchise matters to air their grievances against the franchisor and the current regulation of franchising in the US. I just today learned of the FIRST SLAPP lawsuit against a poster. The Internet Site he posted on, Franchise Pick, of course, immediately removed his postings because the law on Internet posting of grievances is is not clear and the owner of the website does not want to be involved or be named in a lawsuit because he can’t afford the costs of representation in the US courts.

    Activists like Les Stewart understand the intimidation of the lawsuit that is meant to silence dissent or any education of the public but he is not silenced —–just more careful and articulate.

    The owner of the Bad Business Bureau Rip-Off Site in the US is sued all of the time but apparently he wins most of the time and he provides a valuable service to the public and protects the free speech of Americans when he wins these lawsuits that are filed against him.

    Apparently, the SLAPP lawsuits will be used to silence franchisees and website owners who allow beaten franchisees to air their grievances and to warn others, and to counter the often hundreds or thousands of positive advertisement and “constructive” earnings claims that the franchisor places on Internet. I suspect this lawsuit was filed to make the ex-franchisee more amenable to settlement in an arbitration that is coming up shortly.

    The franchisors, of course, are perfectly free to counter any negative comments with positive comments, etc., both on the Rip-Off Site and Franchise Pick, but they don’t of course, because they understand that they can freely use the law to silence dissent and defeat the franchisees because of their binding adhesory contracts that are upheld by the Courts, and their greater financial resources.

    Free speech then becomes too costly for franchisees and of course the courts may decide ultimately that free speech in public must not interfer with commercial activity or the confidential nature of arbitrations, etc.. that are NOT open to the view of the public and the checks and balances envisioned by those who wrote The Bill of Rights.

    I’m sure that this isn’t what our forefathers in writing The Constitution of the United States and the Bill of Rights had in mind when they gave us the Seventh Amendment to a jury trial for civil matters that would include commercial disagreements.

    I’m sure the Boston Tea Party was about commercial activity and the unfairness of the Crown.

    The Federal Arbitration Act of the United States is unconstitutional, in my opinion, when it permits the mandated arbitration in boilerplate contracts in which weaker parties who have signed boilerplate unbargained contracts have to overcome law that has been promulgated to help the stronger party who, in franchising, is the franchisor, who is considered to serve the greater good.

    I don’t think arbitration is unconstitutional when AFTER a dispute comes up between the two parties, the parties then AGREE to arbitrate rather than to litigate in the Courts.

    I think the anti-SLAPP laws in California and some of the other states are a move in the right direction but much too late for so many of us. Too little —Too Late!


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