| Licensing, Technology Transfers, |
As so many franchise systems are perceived to be of degraded value due to life cycle stage, poor franchise system support or management, and especially attempts by franchisors to raise royalties and reduce benefits every time a franchise agreement comes up for renewal, franchisees' desire to leave the system and go independent increases. Often it is only the threat to put them out of business by enforcement of the post termination covenant not to compete that keeps them bound to the franchise. My review of the cases in which such covenants have been enforced tells me that lawyers for franchisees in many situations simply do not understand how to conduct litigation to overcome such covenants. Frequently, a lawyer representing a franchisee will not have much experience dealing with unfair competition issues, which is essentially what a covenant not to compete case is all about. And so, many highly relevant avenues of probative evidence are simply never recognized and never pursued.
If you are a franchisee with this kind of problem, and you do not have access to a lawyer with a great deal of experience dealing with covenants not to compete, you may refer your attorney to this guide for assistance.
The intent of this guide is to provide your attorney with a compendium of covenant issues, with some discussion of the significance of each. How to actually obtain and prepare the evidence required to prevail is another story. This tutorial assumes that, once your lawyer knows the issue and its importance, obtaining and presenting the required evidence in an admissible format is something the lawyer already knows how to do. Knowing what to look for and where to look for it and how to present it to the court is a trial lawyer's stock i