This blog examines earnings claims, options for disclosing, and consideration for earnings claims for selling franchises.
By: MJ Alto
In a job interview, would you ask how much the pay is before learning whether the position is suited for you? Would you make an offer on a house before a comprehensive walk through and learning about the building’s history? And you wouldn’t guarantee the buyer of your car that they will get another 100,000 miles out of the old’ girl without ever getting behind the wheel with them, would you? For anyone with an ounce of common sense and business savvy, “Of course not,” is the obvious answer to all of these questions. Yet when it comes to the sales of franchise business units and the disclosure of earnings claims information, the thinking is exactly the opposite: more often than not the franchisee who’s in the market to buy will prematurely ask for the information and the franchisor, anxious to advance the courtship, will eagerly oblige.
Should earnings claims be presented by a franchisor trying to sell to a hot lead and should a franchisee even ask for the information to begin with? Today, this is the question that is debated more than any other topic in the franchise industry, as franchisors who are frustrated with sales and legal challenges—or anything they don’t have a clear answer to—immediately reach for what they think is the silver bullet: earnings claims that will sell more units. Earnings claims have a legitimate purpose in the sales process, but it is important to remember that they are only one piece of the bigger sales puzzle used to connect with the next piece, and they should not be relied on as the be all and end all of selling. While earnings claims alone may—luckily or incidentally—prove to be effective from time to time, for every franchisor that narrowly escapes the legal ramifications of this decision, there are increasing numbers of others who will end up on the wrong side of the law because they provided information that was unfounded or loosely open to interpretation.
An earnings claim is any information a prospective franchisee receives which allows them to attempt to predict a range or level of potential sales, costs, income, or profits. Franchising exploded in the 1950s, growing from less than 100 companies that had employed franchising in their market operations to more than 900 companies that involved 200,000 franchise outlets in 1960. By the late 1960s, McDonald’s, Holiday Inn and Kentucky Fried Chicken were all approaching or surpassing their 1,000-unit mark and 100,000 new franchise businesses started. With this frenzy came fraudulent franchise sales and franchisees started to complain. As investor losses mounted, lawmakers enacted consumer protection statutes to regulate the offer and sale of franchises and contribute to a more responsible industry. Then, in 1979, the Federal Trade Commission (FTC) adopted regulations that addressed pre-sale disclosures to administer federal franchise law, requiring franchisors selling to provide a disclosure document to all potential franchisees. Formerly known as the Uniform Franchise Offering Circular (U.F.O.C.)—currently being replaced with the new Franchise Disclosure Document (FDD)—it requires that the document be presented to potential franchisees when the purchase of a franchise is discussed or 10 days before the franchisor receives the first payment from the franchisee.
One of the 23 items of disclosure the UFOC/FDD requires is earnings claims, which states: if a franchisor makes earnings claims, whether historical or forecasted, they must have a reasonable basis, and prescribed substantiating disclosures must be given to a potential investor in writing at the same time as the basic disclosures (Parts 436.1(b)-(d)). In the UFOC/FDD, a legal earnings claim, if made available, will be in Item 19 of the document, which is based completely on historical data from the company’s units and may include information such as: various costs, ranges of sales at actual locations, statistical data about operations, and any other pertinent financial information. Item 19 is legitimate because it is a formal, written, historical earnings claim. However, earnings claims that are not historical, written, or formally filed with the state, are not legal and cannot be accepted as legitimate. Under the New FTC Rule on Franchising, effective July 2008, it is even easier to make a legally compliant earnings claim. It expressly permits an earnings claim based on all of the system’s existing outlets or limited to only a subset of outlets that share a particular set of characteristics. As long as your claim has a reasonable basis, adequately discloses all material data assumptions, and you have written substantiation for the representation at the time it is made, it is legally compliant.
Don’t Ask, Don’t Tell
What does it say about a franchisee who is only concerned with the profit margin and what does it say about a franchisor who relies on the earnings claim card to make a sale? Many prospective franchisees are too infatuated with the notion that if they ask franchisors how much money they will make from the unit that all of the uncertainties of going into business will disappear. Publishing an earnings claims statement is at the sole discretion of franchisors. Although it is a very common and legal question, it is one best left unasked and unanswered because salespeople and franchisors cannot legally answer it, whether they jot down a number on a cocktail napkin, or casually reference a range of numbers in a conversation. Besides being illegal, the information would not be reliable. The only legal form of an earnings claim is found in the UFOC/FDD in Item 19 and it simply tells how well the franchise units performed in the past.
Does any relationship that is based on only money work? Earnings claims should be used as only one more piece of information that is considered when deciding whether to buy. The franchisee who puts emphasis first on the financial aspects of the opportunity ultimately will not be a happy franchise owner because they are not putting enough importance on the entire business by asking themselves how it gels with their personal and professional goals, how hard they want to work to promote the business, and if they have the skills and disposition to own and operate the enterprise while also looking to the future. For the franchisee who wants the most return for the least commitment and may think they have stumbled across a get-rich-quick scheme, once the blush of young love wears off—-even if the earnings claims information is accurate—so will the interest, commitment and all likelihood of success. Earnings claims are not a guarantee, they are an indicator. When a franchisor is shoved into the earnings claims corner, he should ask himself: what does this say about the investor? Earnings claims are only one small part of the decision-making process and a solid investor will first investigate the prospect by thoroughly researching the company, spending time at the business, asking present and former franchisees questions and having their concerns addressed so they feel confident that they are comfortable with the business model, the value of the franchise and how it fits with their objectives and abilities. Only then is a prospect in a position to understand the numbers and able to decide for themselves if the purchase is a sound investment for them.
It is illegal and impossible for anyone during the buying process to tell a prospective buyer that they will earn as much as the company’s leading franchisee. Brokers or franchisors who try and use the earnings claims angle to induce the buyer into signing are relying on this false crutch because they do not have the franchise knowledge and expertise to methodically build the value of the franchise brand and systems, and earnings claims always seems like a simple answer for improving what is actually a flawed sales process that focuses only on the numbers—not whether the franchisee will be good at running the business.
If You Must Talk Money
Until all contingencies of the contract are complete, it is illegal to talk about earnings claims that are not provided in writing in item 19. When earnings claims are introduced it is imperative that they contain only estimates or historical figures detailing the level of sales, expenses and/or income a prospective franchisee might realize as the owner, and that the franchisor has a “reasonable basis” for the earnings claim at the time the statement is prepared. When used as they were originally intended—to help franchisees set proper expectations for budgeting—earnings claims can be a valuable tool for both the franchisor and the buyer. But, they should never be the lead engine of the sales process. At best, they are one component that should be weighted, positioned and timed so that they are presented in the proper context and as part of a refined sales process that intuitively leads the buyer to make a decision based on critical thinking and closely evaluated goals and objectives. It is important to remember that the oneness for presenting earnings claims accurately and responsibly falls on the shoulders of the franchisor who should rely on legal and accounting experts to put together truthful earnings claims and sign-off forms that cannot be challenged later, thereby unraveling the claim. Even then, a written earnings claim does not lessen liability and is not full proof: there are countless examples of franchisees who later said the written claim was not consistent with what they were told verbally by sales people.
Besides earnings claims, there are also many other options for getting information regarding earnings. The UFOC/FDD explains fees and fee structures in sections 5-6. For information that will help the franchisee project how well their investment will do in their community, item 7 provides specifics on now much needs to be invested to become a franchisee and the investment chart includes information on types of locations, staff size, equipment and inventory. Item 19—the actual earnings claims section—provides a formal, written historical earnings claim, should the franchisor choose to provide this information. Directly after that, item 20 lists current and former franchisees and their contact information—a priceless research tool for getting factual information about how their unit has performed, based on their customer base and where they are located and what products and services sold the best. Item 21 often includes financial statements regarding unit performance, which when combined with the data from item 20, is indicative of what a franchisee can expect from their investment.
Staying completely away from presenting earnings claims is the safest and most effective way to sell franchise business units. Instead, franchisors should focus on refining their sales team’s skills so that every prospect is given enough information to feel comfortable with their decision and confident that their skill set and professional goals line up with the particular industry and business they are interested in buying. At the same time, replacing the need for earnings claims by building the value of the franchise systems that come with the package, is the best way to help the prospective buyer clearly see for themselves the value of the investment—marketing expertise, management support, accounting systems, information technology resources, buying power and a proven business model are just a few of the benefits of franchising and why they will have an excellent chance of succeeding. This will result in steadfast agreements that result in content franchise owners who will add to the profitability of the brand.
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