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30 Franchise L.J. 1 (2010-2011)

handle is hein.journals/fchlj30 and id is 1 raw text is: QUARTERLY JOURNAL OF THE FORUM ON FRANCHISING VOLUME 30, NUMBER I * SUMMER 2010 In This Issue The Forum Provides Tools to Support Our Sophisticated Specialty......................................2 CHRISTOPHER P. BUSSERT Inexperience and franchise law make a particularly bad combination, as evidenced by Nebraska v. Orr, a case in which an attorney found out the hard way that drafting franchise documents is not the same as drafting standard contracts. With the help of Forum resources, however, the type of nightmare arising from Orr can be put to rest. How Waiver, Modification, and Estoppel May Alter Franchise Relationships ..................3 KERRY L. BUNDY AND Scorr H. IKEDA Franchise agreements are not always as good as their word. As franchise relationships develop, the franchisor sometimes institutes temporary plans or relaxes certain requirements. Waiver, modification, and estoppel then act on those agreements in ways not intended when the agreements were executed. What's a franchisor to do? Puerto Rico's Dealer and Franchise Statute Adapts to the Latest Developments in Law, Commerce, and Technology ............................ 10 MANUEL A. PIETRANTONI AND RICARDO F. CASELLAS Puerto Rico is a business haven for franchisees and deal- ers. Or is it? Law 75 mandates just cause for termination of a franchise or distribution agreement, so many view it as a protectionist law for franchisees and dealers. But the Puerto Rico Civil Code, federal copyright and trademark laws, and judicial interpretations of just cause could be at odds with the still-evolving Law 75. Survey of Daubert Challenges in the Context of Franchise Liability Experts ......................... 17 CHRISTINA L. FUGATE, BRIAN I PAUL, AND JAMEs L. PETERSEN Expert testimony has been expertly challenged under Daubert. Proposed expert testimony can be excluded for multiple reasons. However, courts will admit franchise liability expert testimony if it adheres to Rule 702 guide- lines. Overcoming a Daubert challenge is not impossible if you know the type of testimony allowed and the attri- butes that qualify an expert in the eyes of the court. Microfranchising: A Business Approach to Fighting Poverty .......................................... 24 DEBORAH BURAND AND DAVID W KOCH Poverty afflicts a large number of people worldwide, but franchising on a small level can help alleviate the prob- lem. Whereas commercial franchising primarily benefits franchisors, microfranchising benefits those at the base of the economic pyramid-by creating job opportuni- ties. Although such scalable business opportunities have inherent challenges, the rewards can be great. Franchisor Direct Liability .............................35 JAY HEWITT Vicarious liability only goes so far in litigation against a franchisor. Recognizing this, plaintiffs favor direct liabil- ity claims, in which the franchisor is alleged to be neg- ligent independent of negligence by the franchisee. The amount of control a franchisor exerts over its franchisee is a critical factor in judicial decisions involving direct liability claims. The author addresses ways franchisors can prevent and, if necessary, address such litigation. Franchise (& Distribution) Currents.............43 JASON J. STOVER, C. GRIFFITH TOWLE, AND DAVID M. BYERS A detailed review of recent franchise and distribution law. Franchise Law Journal (ISSN: 8756-7962) is published quarter- ly, by season, by the American Bar Association Forum on Fran- chising, 321 North Clark Street, Chicago, Illinois 60654-7598. Franchise Law Journal seeks to inform and educate members of the bar by publishing articles, columns, and reviews concern- ing legal developments relevant to franchising as a method of distributing products and services. Franchise Law Journal is in- dexed in the Current Law Index under the citation FRANCHISING. Requests for permission to reproduce or republish any material from the Franchise Law Journal should be sent to copyright@ abanet.org. Address corrections should be sent to coa@abanet.org. The opinions expressed in the articles presented in Franchise Law Journal are those of the authors and shall not be construed to represent the policies of the American Bar Association and the Forum on Franchising. Copyright @2010 American Bar Association. Produced by ABA Publishing.

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