Exiting franchisees are dealt with in an engineered fashion.

March 4, 2016

The model is similar to what happens to the contents of your toilet when you flush it.

The maximum value ($, labour, reputation) to the franchisor is extracted thanks to the franchise bar.


What advice might Taleb give the CDN Target and Tim Hortons franchisees who are thinking of “lawyering up”?

February 4, 2015

Someone once called me franchising’s black swan.

Taleb Kahneman

In science, you need to understand the world; in business you need others to misunderstand it.

What does Nassim Nicholas Taleb define as a “sucker”:

The sucker’s trap is when you focus on what you know and what others don’t know, rather than the reverse.

Suckers think you cure greed with money, addiction with substances, expert problems with experts, banking with bankers. economics with economists, and debt crises with debt spending.

We favor the visible, the embedded, the personal, the narrated, and the tangible; we scorn the abstract. What they call “risk” I call opportunity; but what they call “low risk” opportunity I call a sucker problem.

I have no pecuniary interest in these schmozzles, only a few friends and their staff that I care about.

You are rich if and only if money you refuse tastes better than money you accept.


What is the Canadian Franchise Association doing to protect the 1,100 CDN franchisees and 96,000 employees at Tim Hortons?

February 1, 2015

The Canadian Franchise Association says it …advocates on behalf of franchisors and franchisees in Canada

CFA

Tim Hortons is a member of the CFA. The CFA’s Code of Ethics says that their members’ should treat each other with fairness.

Tony Martin former ON MPP and MP made certain recommendations from his experiences during the public hearings which led to Ontario’s 1st franchise law.

News Release
April 4, 2000

Investigate Franchise Association Abuses: Martin

Tony Martin, MPP

Tony Martin, MPP, Sault Ste. Marie
New Democratic Party
News Release
Legislative Assembly of Ontario, Canada

INVESTIGATE FRANCHISE ASSOCIATION ABUSES: MARTIN

TORONTO – The Consumer and Commercial Relations Ministry should investigate the Canadian Franchise Association over its failure to help Ontario franchise holders, NDP MPP Tony Martin said today.

The CFA is advising the Conservative government on proposed changes to provincial laws governing franchise agreements. But the association is under fire from hundreds of its own members for its indifference to their complaints, the NDP Critic for Consumer and Commercial Relations said in the Legislature today.

“The CFA has been of no help to many hundreds of entrepreneurs who lost their shirts in shoddy franchise deals,” Martin said. “Instead of taking the CFA’s advice this government should be sending in ministry staff to thoroughly investigate this association’s failures.”

Martin raised the case of Brenda Hope, a mother of two from Coldwater who lost $90,000 as a Chemwise Inc., franchisee. For more than a year, the CFA has refused to look into Hope’s complaints, although it endorsed Chemwise as a member.

Similarly, the CFA has refused to accept a registered letter from Bulk Barn franchisees who have a series of complaints against the franchisor. Martin was also refused when he tried to deliver the letter. The Sault Ste. Marie MPP called on Consumer and Commercial Affairs minister Bob Runciman to act now to protect small businesspeople.

“Perhaps the minister can convince the CFA to live up to its responsibilities to mediate franchise disputes. If he can’t, we need a full-scale probe of this group. It’s the least we can do for hard-working families who lose everything in dubious franchise deals,” Martin said.

The MPP has proposed his own legislation, Bill 35, that is far tougher than the government’s Bill 33. The Martin Franchise Bill would require full-disclosure of franchise contracts, a dispute resolution mechanism, the right to associate and the freedom to source products outside of the chain when not trademark related.

-30-

Also: Martin’s questions directed to the CFA during their Mar 2000 expert witness testimony.

Source

CFA National Sponsors


Why do stressed franchisees often look so stupid, so “frozen”?

January 31, 2015

Like a “deer caught in a car’s headlights”?

Waking the Tiger

Dr. Peter A. Levine in his 1997 book, Waking the Tiger: Healing Trauma, suggests that under threat, franchisees are behaving perfectly naturally:

Chapter 1: Shadows From a Forgotten Past

 Nature’s Plan

A herd of impala grazes peacefully in a lush wadi [valley]. Suddenly, the wind shifts, carrying with it a new, but familiar scent. The impala senses danger in the air and become instantly tensed to a hair trigger of alertness. They sniff, look, and listen carefully for a few moments, but when no threat appears, the animals return to their grazing, relaxed yet vigilant.

Seizing he moment, a stalking cheetah leaps from its cover of dense shrubbery. As if it were one organism, the herd springs quickly toward a protective thicket at the wadi’s edge. One young impala trips for a split second, then recovers. but it is too late. In a blur, the cheetah lunges toward its intended victim, and the chase is on at a blazing sixty to seventy miles an hour.

At the moment of contact (or just before), the young impala falls to the ground, surrendering to its impending death. Yet, it may be uninjured. The stone-still animal is not pretending to be dead. It has instinctively entered an altered state of consciousness shared by all mammals when death appears imminent. many indigenous peoples view this phenomenon as a surrender of the spirit of the prey to the predator, which, in a manner of speaking, it is.

Physiologists call this altered state the “immobility” or “freezing” response. It is one of the three primary responses available to reptiles and mammals when faced with an overwhelming threat. The other two, fight and flight, are much more familiar to most of  us. Less is known about the immobility response…

Tim Hortons franchisees know enough not to race to any brand lawyer to solve their problem.

  • They know that the franchise bar serves only franchisor interests: just like the lapdog franchisee advisory groups.

They stick with the few peers they trust and watch.


Which is the most powerful and misunderstood provision of the most-feared franchise law in the world?

January 13, 2015

Section 4, Right to Associate, Ontario, Canada’s Arthur Wishart Act (Franchise Disclosure) 2000.

Right to Associate

As sure as water flows downhill, this will lead to franchisee-led, not lawyer-thwarted:

  1. trademark-specific WordPress weblog (then a Wikidot.com wiki),
  2. small groups of franchisees commissioning research (sharing cost information),
  3. non-lawyer franchise expert coach consulting,
  4. an independent franchisee association (no franchise bar involvement),
  5. shared services, supply co-operative(s),
  6. non-franchise bar case preparation, and
  7. equity and gross margin protection.

The Right to Associate provision (the de facto CDN standard and what all franchisees in the world aspire to for justice) is one last conceptual obstacle preventing franchisees from taking their appropriate seat at the adult’s table.

Proof?: after 14-15 years, the CDN franchise bar has filtered each attempt to plead Right to Associate (trial and appeal), thereby, defeating the ON justices from activating its potential.

The ON Superior Court of Justice will make the link to Section 2 of the Canadian Charter of Rights and Freedoms.

ON Surperior Court of Justice

Cross-posted on the Canadian Alliance of Franchise Operators website (CDNafo.ca)


Your quest for franchisee justice will lead you to a “white knight” lawyer who will betray you.

September 2, 2013

The franchise bar appears to 1st time user franchisees as fundamentally fair, adversarial and zero sumThat is a dangerous myth.

(c) Walker Art Gallery; Supplied by The Public Catalogue Foundation

The economic incentives for the “franchisee-friendly attorneys” are to give the pretence of a fair fight (definition: an attempt to make something that is not the case appear true OED) since your being sold-out can be easily explained. Franchisee stupidity and shortsightedness is the most cited, least reality-based reason given.

Answer:

Your franchisee attorney will defect on 100% of all large cases because the franchise industry is effectively a single-payer industry for legal services (franchisors: +95%). As in other human waste treatment systems, the franchise bar functions to let pass the little cases go to trial (to keep the payers fearful and motivated) but skims off the large chunks for the elite 2 firms.

Question:

Why would any franchisor pay out 100% of a massive claim to a group of franchisees for multi-year bad faith dealings when they could cut two cheques (1. their own lawyers and 2. your attorney) to manage the case to a “satisfactory conclusion”? Would 10 per cent of what franchisees are owed be a reasonably figure?

If you were a rational, profit-maximizing multi-decade career Big Franchising professional (who has their own very high sunk costs invested in the status quo industry practices and structure, btw), Wouldn’t YOU just keep your mouth shut, turn a blind eye and play along, too?

There are ways to deal with these perfectly explainable and rational, multiple-level credence good dangers but you may need to start serving legitimate authority instead of the posers that scatter when the light switch goes on the industry.

Sir Galahad:The Quest of the Holy Grail,  Arthur Hughes, 1870.


Incentives favour franchisee attorneys defecting from their clients’ interests

October 5, 2012

The good grasp of the academic disciple of Law and Economics is necessary in understanding franchising.

Economics is (almost) all about incentives: A highly unified profession, serving a highly centralized, tightly disciplined franchisor-dominant industry  would lead the observer to predict very high levels of attorney-generated opportunism (self-interest + deceit) at the expense of their clients: individuals and groups of franchisees. The rational lawyer defects because that decision makes the best of a highly imperfect information situation.  The new franchisee bar member quickly realizes that economic survival depends on his or her obedience as a gatekeeper for the “team”, in stark contrast to a Canadian justice system that is more and more sympathetic to franchisee arguments.

Hadfield is required reading for franchisees considering contracting for such high-risk legal services (credence goods).

The Price of Law: How the Market for Lawyers Distorts the Justice System

Gillian Hadfield
USC Law School and Department of Economics
October 1999
Michigan Law Review, Vol. 98, No. 4, 2000

Abstract:
This paper begins with the question, Why do lawyers cost so much? The analysis is an investigation of the imperfections in the market for lawyers, imperfections that have been largely overlooked by focus on either the model of perfect competition or the impact of artificial barriers to entry into the provision of legal services. The paper catalogues multiple sources of imperfection: the nature of the incentives and mechanisms at work to determine the level of complexity in the system; the extent to which complexity and uncertainty make legal services into credence goods par exellence; the winner-take-all and tournament nature of the competition among lawyers; the sunk costs of lawyer-client relationships and hence the potential for opportunism and the limited potential for conventional market mechanisms to control opportunism; the incremental nature of legal fees–which structures legal expenditures as a sunk cost auction in which the cost of services can easily and rationally exceed the amount at stake; and three sources of monopoly–the familiar monopoly established by artificial barriers to entry, the “natural” monopoly arising from the limited supply of individuals in the economy with the cognitive skills necessary to engage effectively in competitive legal reasoning, and the state’s monopoly over coercive dispute resolution.

The analysis uncovers deeply disturbing implications for justice from the economics of the market for lawyers. The price dynamics of the system operate within the framework of a unified profession/unified legal system that essentially puts individual clients–with justice interests at stake–into a bidding contest with corporate clients with efficiency (more generally, market) interests at stake. Corporations by definition are aggregations of individual wealth and, as a consequence, are able to bid for the resources; they also are a richer feeding ground for the wealth extraction generated by the imperfections/monopoly aspects of the market for lawyers. This is not an ethical critique of lawyers; it is the implication of ordinary economic response to incentives structured by a non-competitive market.

The economic dynamics of the market for lawyers operate like a vacuum, drawing the resources of the system into the corporate sphere, in the service (from a public perspective) of efficiency, and away from the individual sphere, in the service of justice as in the relationships between the individual and the state, the market, the family, the community and so on. This stands on its head the lexicographic relationship between efficiency and justice: efficiency is of normative significance only to the extent it promotes individual welfare through just social relations.

The implications of the economic analysis in the paper are supported by the empirical evidence we have about the structure of the legal profession and the changes over the past several decades. The profession is roughly divided into two segments–one serving business clients and one serving individual clients. The business segment is populated by lawyers who graduated from elite institutions, who are well-connected and influential in the profession, who charge high fees and earn high incomes, and who are perceived to be in short supply. These lawyers work in large firms or high-end boutiques and are increasingly likely to be specialized. Their work is perceived to be of the highest level of prestige by all members of the profession. The personal segment is populated by lawyers who graduate from lower-tier schools, charge lower fees and often flat fees set in apparently competitive fashion providing largely routine, non-contested legal services such as house closings, uncontested divorces and wills. Their work is perceived, by them and the rest of the profession, as low prestige. Lawyers in this segment tend to work in solo practice or small general practice firms. The supply of lawyers in this segment is perceived to exceed demand, and there is evidence of un/underemployment and falling prices.

The allocation of total hours spent by lawyers on legal work is increasingly skewed towards the business segment of the profession, and thus towards the efficiency and away from the individual justice goals of the justice system. [my emphasis]

Number of Pages in PDF File: 84

Accepted Paper Series

Download from SSRN here.

 


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