24 Franchise L.J. 1 (2004-2005)

handle is hein.journals/fchlj24 and id is 1 raw text is: URcANHISE
LAW JOUnRNAL

QT    I

AMERICAN

QUARTERLY JOURNAL OF THE FORUM ON FRANCHISING

Letter to the Editor: Franchise Lawyers
Should Practice Justice ...................... 2
L. SETH STADFELD
S ome agreed with Editor-in-Chief William L. Killion's
editorial in the spring 2004 issue in which he discussed
the role played by franchisors trial lawyers. Others did not.
In an impassioned response, reader Seth Stadfeld examines
the impact of Killion's approach on three situations-post-
term noncompete clauses, changing of system standards,
and vicarious liability claims-and concludes that fran-
chisor are not always right.
Editorial: One Person's Sense of justice Is
Another's Sense of Injustice .................. 3
WILLIAM L. KILLION
ditor-in-Chief Killion uses Seth Stadfeld's letter as the
basis for an analysis of social capital, the role of the
Forum, and franchise litigation. He postulates that a person-
al sense of justice should be left at the courthouse steps and
that strict contract interpretation will ultimately result in a
more equitable decision for everyone involved.
Retaining and Improving Brand Equity by
Enforcing System Standards ................... 10
EDWARD WOOD DUNHAM, JOSEPH SCHUMACHER, AND
G. ADAM SCHWEICKERT III
nforcing system standards is necessary to protect a
Efranchisor's marks and simply makes good business
sense. The authors discuss the Lanham Act and state
trademark statutes to describe why a compliance program
is necessary to keep system standards up to par. They also
suggest how to achieve franchisees' commitment. The
keys to success, all of which are discussed in detail, are
check, coach, check, and enforce.
Contractual Limitations of Action Periods in
Franchise Agreements ...................... 18
SANDY T. TUCKER
A contractual limitation of action provision in a franchise
agreement should never be routine. Careful drafting,
according to Sandy Tucker, includes evaluating (1) whether
to include such a provision in the first place; (2) what is to
be accomplished through the provision; (3) how to craft the
provision to meet these objectives; and (4) the impact of
law on the enforceability of the clause.

BAR  ASSOCIATION

VOLUME 24, NUMBER I  SUMMER 2004

Utilizing the Doctrine of Prior Material
Breach to End a Franchise Relationship ....... 23
W. MICHAEL GARNER AND SARAH A. JOHNSTON
P rior material breach has been defined as the breach of a
fundamental obligation of an agreement, such that the
failure to perform that obligation defeats the essential pur-
pose of the contract and excuses the nonbreaching party
from further performance. Simple to state and difficult to
apply to franchise agreements. The authors include a listing
of the top five reasons for material breaches for both
franchisors and franchisees.
The Operations Manual-Essential to Success ... 31
SCOTT   G. MCLESTER, SUSAN       H. MORTON, AND
KAREN B. SATTERLEE
A franchisor's operations manual is, or should be, the Bible
of the franchise relationship. Not only does the opera-
tions manual embody and convey to franchisees the existing
standards and requirements of the franchise system, it also
serves as the primary vehicle for system change. The authors
describe some of the legal problems that operations manuals
have created and suggest how a franchisor can make the most
of its operations manual while avoiding legal pitfalls.
Franchising (& Distribution) Currents ........ 42
MICHAEL J. LOCKERBY. EDITOR: CHRISTOPHER P. BUSSERT,
DIANE GREEN-KELLY, AND COURTLAND L. REICHMAN
summary of recent court cases affecting franchising
and distribution law.

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