Boroian Attorney Responds to South Beach Jury Verdict
MIAMI – After a jury reached its verdict in favor of five South Beach Franchising master franchisees on nine counts against Donald Boroian and his 35-year old franchise development firm on October 9, attorney Carl F. Schoeppl, Schoeppl & Burke, responded today for his defendant clients. “We believe that the court should have directed a verdict on all counts and committed error in letting the case go to the jury,” he stated. 
The jury issued its unanimous decision on nine counts under “fraud in the inducement and concealment” and “negligent misrepresentation and omission” claims. Robert Einhorn, Zarco Einhorn Salkowski & Brito, representing the franchisees said it was a total victory saying, “We are gratified that the jury held Donald Boroian and Francorp responsible for their deceptive and fraudulent business practices in this case.”
Einhorn also asserted that the jury’s decision sends a clear message to Francorp and other franchise “packaging houses” that they will be held accountable for the preparation of false and misleading franchise documents for their clients. He said franchising consultants cannot engage in the unauthorized practice of law but added, “Although the unauthorized practice of law issue wasn’t a separate claim in the case it was evidence that supported the negligence and the unfair and deceptive trade practices act claims.” Einhorm further explained that even though there is no official finding on it, it could be assumed that the jury concluded that by entering its verdict on everything claimed.
But according to Schoeppl, the court granted a directed verdict in Francorp and Don Boroian’s favor on two of the counts in the complaint, which are under Illinois’ law. He said count 10 of the complaint was for the unauthorized practice of law, a negligence per se count. Count 11 was on the Illinois unfair and deceptive trade practices count.
In summarizing the litigation, Einhorn previously stated that Boroian and his company completely stepped out of the role of being a franchise consultant to become his client's partner, her joint venturer and her legal counsel. But Schoeppl said, “The court also rejected the joint venture theory on all counts that the plaintiffs had raised, which favored Francorp and Boroian.”
Schoeppl explained that they have now filed a motion for a new trial, a motion to set aside the jury verdict and a motion for a directed verdict. The current status of the case is that they have scheduled a hearing on December 18, and the attorneys for the South Beach franchisees have agreed to that date. “Our position is going to be made in front of the court and, hopefully, the judge will look at our position favorably. If he does, it is possible that he could set aside the jury verdict and direct a verdict on all the other counts in favor of Francorp and Mr. Boroian. If the court does not do that, then our intentions are to appeal,” Schoeppl stated.
South Beach Franchising was developed by Francorp to promote and sell health and lifestyle products by granting exclusive rights to master franchisees in order to sell franchises in geographic areas. The lawsuit alleges that Boroian and Carol (Meyers) Brothers, a long-term friend and business associate who brought the program to Boroian, induced people to buy into the system based on misrepresentations they gave about the company and its owner's checkered background.
As previously reported, following a mediation session two weeks prior to the trial, Boroian refused to offer anything to settle the case. After the jury verdict was presented he vowed to appeal the decision. But in response Einhorn said, “Even if he takes an appeal, that doesn’t stop us from going in and collecting the judgment. We’ll aggressively pursue all avenues including pursuing Francorp clients who owe money to the firm.” Einhorn said he knew Boroian had a large book of receivables, and that is something they would go after if necessary.
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Related Reading:
- Jury Nails Boroian in South Beach Trial on All Counts, Including Fraud
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Practicing law alleged (Franchise Times Magazine: September, 2008)
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South Beach case moves forward (Franchise Times Magazine: June ...
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