Exclusively Yours

In August, as General Nutrition Companies, franchisor of General Nutrition Centers, was presenting its franchisees with a settlement to a class action lawsuit, The New York Times ran an article describing the facts of the case and why some franchisees were not pleased with the proposal.

Brought up in the suit were charges of territory violations and unfair competition by GNC against its franchisees. GNC, its franchisees allege, opened company-owned stores near franchised locations and charged less for products, causing some franchisees to lose customers or go out of business.

Cases like this that make a push for the protection of franchisee territories seem like a good cause, but are they? Are there times when having an exclusive territory doesn't benefit the franchisee or franchisor? Franchise Zone spoke with Robert Nye, franchise attorney and professor of law at The John Marshall Law School in Chicago, about this controversial issue and found that there are no easy answers to these questions.

Franchise Zone: What are the benefits of exclusive territories for franchisees?

Robert Nye: The benefit to a franchisee is to assure the franchisee there will be no encroachment on its customers or its customer base or its geographical territory by the franchisor or by another franchisee in that system. A franchisee would want that assurance against encroachment because if there are sales increases resulting from the franchisee's efforts in that territory, the franchisee wants to get the benefit of those sales increases, and that's natural, normal and to be expected and desired.

Are there any benefits for the franchisor?

There are a couple of legal benefits as well as practical ones. States sometimes, in certain industries, require that there be exclusive territories; for example, a winery or brewery franchise would be in violation of some state statutes by not giving exclusive territories to its wholesalers and distributors.

Secondly, as far as the law is concerned, even when a franchisor is not required by law to give an exclusive territory to a franchisee, there are states that have by statute made it unlawful for a franchisor to "compete unfairly" with the franchisee within a "reasonable area." If there is going to be a problem for a franchisor, even if a franchisor doesn't typically give an exclusive territory, it might be reasonable for the franchisor to consider granting an exclusive territory so that the franchisor and franchisee both know what that "reasonable area" is that's mentioned in some of those statutes.

Some of the practical reasons for granting an exclusive territory, from the point of view of the franchisor, have to do with the very nature of the franchise relationship. When a franchisor grants an exclusive territory to a franchisee, the franchisor knows that that franchisee has the incentive to build sales, to build a customer base and increase it in that particular territory, and that helps not only the franchisee but also the franchisor and the entire franchise system. The franchise relationship is an interesting one-the franchisor has a lot of control over what the franchisee does but is also dependent upon the progress and the sales and the activity of the franchisee in order to expand and prosper.

What are the drawbacks to exclusive territories?

So far as a franchisee is concerned, the drawbacks might be if the exclusive territory is too small and then the franchisee is making sales in that particular area but wants to expand and can't. That doesn't mean the franchisee and franchisor can't negotiate for an expansion of the territory, but you start running into the problems of the franchisees in the next exclusive territory. A franchisee in a particular territory might also find the territory is too large and, under the franchise agreement, [have] obligated itself to certain minimum sales it can't make in that particular size territory.

Meanwhile, franchisors are going to be reluctant to grant an exclusive territory to a franchisee when the size or something about the territory demonstrates it ought to be served by more than one franchisee.

Today, there's a big concern in franchising about franchisors selling online. What do we do if a franchisor has granted an exclusive territory to a franchisee and then, through the franchisor's own Web site, sells the same product or services to persons who normally would have been serviced by the franchisee in that franchisee's exclusive territory? There have been claims already made that a franchisor is violating the franchise agreement and is encroaching on the franchisee's exclusive territory in that way. Lawyers are currently discussing and developing reasonable ways to accommodate both the needs and desires of the franchisee and the franchisor with respect to those kinds of online sales.

There's also the question of whether the franchisor would want to permit a franchisee to sell online [to customers who] otherwise would have been served within other franchisees' exclusive territories, and so there might be a violation of the exclusive territory provision in that way. These sorts of things need to be dealt with in light of current technology developments.