Ohio’s Business Opportunity Law was recently amended, significantly increasing the rights and remedies of franchise owners. The author of this post was privileged to be a member of the Committee of the Ohio Bar Association that drafted the new law.
No registration or other governmental filing by a franchisor is required in Ohio. However, unlike other states and federal law, the term “business opportunity” applies to most franchises under the Ohio law.
The Ohio law, like several other state laws, gives franchisees the right to sue for violation of disclosure laws without proof of fraud. Federal law does not give an injured franchisee the right to sue, although sometimes franchisees can use disclosure violations as the basis for a fraud claim in state court (fraud claims face various hurdles and can be unsuited to franchise disclosure litigation). A number of exemptions are included in the Ohio law, most notably an exemption for transactions involving larger franchisors (defined as a franchisor with more than $15 million in net worth and at least 25 franchises in place). However, unless an exemption applies, the Ohio law provides purchasers with various remedies for violations of the FTC rule, including rescission, triple damages and attorney fees.
In the past, out-of-state franchisors could avoid the Ohio law by specifying that a different state’s law would apply. A federal court decision had ruled that these “choice of law” provisions would be enforced over conflicting language in the Ohio law. However, the amended law includes language intended to overrule this court decision. As a result, the Ohio law will now apply to the sale of franchises located in Ohio, as well as to the sale of franchises, wherever located, under franchise agreements which specify that Ohio law applies.
Another common feature of franchise agreements is the requirement that disputes be resolved outside Ohio, often by arbitration. The amended law includes language restricting such provisions. While arbitration clauses will presumably still be enforceable, the revised law requires that the disputes be adjudicated inside Ohio.
These protections of the revised Ohio franchise law provide improved benefits and remedies to Ohio citizens, and perhaps our model will be followed in other states.