AAFD: Excellence in Organizational Governance

Mr. Robert Purvin, chair of the American Association of Franchisees and Dealers, has spent two decades building an organization to change the dynamics of franchising. That is more than most of his critics here on Blue MauMau can say.

Any of us can tear down a house. Few can build one.

Early Tuesday morning Don Sniegowski reported in almost real time on the AAFD awards dinner. The report was a positive reflection not only on the transparency of the AAFD but also on the collaborative and pragmatic approach of that organization. Both Mr. Purvin and the Blue MauMau raspberry gallery misinterpreted the article, and the fallout to the article says much about both sides.

Mr. Purvin’s response was to take the microphone at lunch on Tuesday and strongly criticize Don's op-ed piece and set forth a defense of Mr. Purvin’s approach. Significantly, Mr. Purvin not only mentioned that members of the AAFD disagreed with his position, but at one point during Mr. Purvin’s speech, Mr. Michael Webster, a member of the AAFD Standards Committee, interjected, “I couldn’t disagree with you more.” Mr. Purvin then urged the assembly to not only attend the Standards Committee meeting that afternoon, but to respond to the Blue MauMau article.

The afternoon meeting (and the following morning session) saw considerable discussion not merely of resolving the Cuppys matter but also of the wider issue as to lessons learned and changes to be made. There were several agenda items preceeding the Cuppys discussion, and at several points oblique references were made to the implications of the public debate.

When the Cuppy’s matter was brought up, there was time allotted for public comment. I took issue with Mr. Purvin’s recitations of the facts regarding the history of Cuppy’s, and the counsel for Cuppy’s in turn took the floor to disagree with me. No Cuppy’s franchisee chose to attend, but both Mr. Purvin and Mr. Webster discussed input they had received from aggrieved franchisees. Both also specifically mentioned that they took seriously the information provided by Sean Kelly and that this information would factor into the AAFD decision.

Mr. Purvin noted that he had received 12 specific complaints regarding Cuppy’s. One of those was arguably outside the cognizance of the AAFD. He discussed the status on the other complaints. In response to the floor discussion, he noted that the AAFD was looking to revise Chapter 6 of the Fair Franchising Standards to prevent a recurrence of the delay in returning unearned monies as seen in the Cuppys case.

Mr. Webster felt there were multiple issues which needed to be addressed. He bluntly stated in the meeting,  “There were certain material facts that were not disclosed during the accreditation process and had those facts been known, the outcome [of the certification] would have been different.”

Mr. Webster indicated that the initial decision in the Cuppy’s accreditation will not influence his report on how the AAFD should deal with the future accreditation; indeed, he intends to personally verify the factual assertions being made by the franchisor. During the course of the conference several members of the Board of Directors indicated that Cuppy’s past conduct raised serious concerns which would have to be addressed since the AAFD’s institutional credibility was involved.

For those who have not attended a meeting, I point out that not only does the AAFD have a tripartite membership structure of attorney, franchisor, franchisee, but also voting is structured in a manner which ensures that any proposal must gain support from all constituencies.

As a result, the process is collaborative and pragmatic. The need to build consensus means that each constituency must step into the shoes of the other.

Like many founders, Mr. Purvin is not lacking in ego and forcefulness. But Mr. Purvin has set up an organizational structure which is the most transparent and collaborative in franchising. That’s not a bad legacy, and the success of the AAFD will depend on those from both franchisor and franchisee communities who choose to work together and find solutions—not those who offer only snarky comments with no solutions.

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At the risk of being snarky...

Cuppy's Coffee AAFD award claimRE: AAFD: Excellence in Organizational Governance

Has the AAFD "awarded Cuppy's Coffee with the highest score ever achieved for Fair Franchising Standards"?

That's the claim that remains on the upper right corner of the Cuppys.com home page.

It's ironic that AAFD apologists never tire of explaining the intricacies of "contract accreditation" here, yet still haven't gotten around to explaining it to their accreditee... one year later.

I guess the AAFD's excellence in organizational governance has not yet extended to governing use of their trademark, or preventing exaggeration by those who, by their own admission, don't follow AAFD guidelines.

Good point

Sean's question as to what exactly it means to have an "accredited contract" is a good one, and I agree that the AAFD must clarify this. At the Wednesday session, this was discussed at some length and I suspect that after Mr. Webster is done with his report this will be one of the topics in September. As is, my understanding is that AAFD recipients will have to give prospects a separate page which explains what accreditation means.

Paul Steinberg
Franchisee Attorney, New York City, Ph: 212-529-5400

Take that off your website! You are lying!

Cuppy's needs to take that award off their website. That is false advertisment, Dale even stated at the AAFD meeting that they do not live up to AAFD Fair Franchising Standards, so stop the lies and get it off your website! You are misleading many people out here.

At the risk of being hypocritical.....

Sean Kelly, On your website, www.franchisepick.com, you have the following banner headlines:

FRANBEST

OPPORTUNITIES/TOP NEW FRANCHISES

Listed beneath these headings are arguably some of the worst franchise opportunities on the planet, including Cuppy's. Maybe someone looked at your website and decided from the homepage to buy a Cuppy's and send their money to a real estate company....Oops.

iSOLD IT

SNAPPY AUCTIONS

THE UPS STORE

QUIZNOS

CUPPY'S / JAVA JO'Z

MARY KAY (MLM)

Don't Choose these!

Look at Sean's statement. If you are looking for a terrible future, or no return on your investment choose Cuppy's. Or... You can choose Cuppy's if you don't have a clue what you are doing, because neither do they. They say they are "learning with you". You don't need someone that is learning, you need someone that knows what they are talking about. They should not charge a franchise fee, because in reality you don't get anything for it except someone calling you to say how are you doing today? Don't believe their lies.....

Re: At the risk of being hypocritical.....

Yeah, Sean, maybe Cuppy's, UPS and Quiznos should advertise on their websites that Franchisepick.com has selected Cuppy's as a FRANBEST opportunity and a TOP NEW FRANCHISE....

It seems the AAFD's mistake is not realizing that their contract accreditation could be used as a mask in a holdup. How they respond in the coming months to close that loophole and terminate the connection with Cuppy's will be critical to their future credibility, and the credibility of their awards. Like the gun shop that sells the gun to someone claiming the need for protection and then sees it used in a homicide, the AAFD is not liable but should obviously do everything they can to try to prevent further bloodshed through the use of its product.

Free ski mask with purchase

The ski mask analogy might hold up if the ski masks were sold in the summer at a handgun store... or given free with purchase of a Saturday Night Special.  Maybe a better analogy would be head shops selling glass pipes that are clearly "for novelty purposes only."  

What you're missing is that the contract accreditation is a product sold as a franchise marketing tool.  It's a badge of credibility to help assure franchisees to feel confident that they're investing with a reputable & fair company. Do you think that franchisors go through the process to feel good that they're doing the right thing?  Is that why it's plastered all over the franchisor's marketing materials?

The AAFD is (partly) in the business of selling franchise tools.  They are either effective sales tools - in which case they bear some responsibility for the product's use - or they are selling ineffective sales tools - in which case they ought to fess up.

I doubt too many of the attornies in the AAFD would advise their clients that it's OK to allow 3rd parties to misrepresent or misuse their trademarks.  My layman's understanding is that if one does not exercise quality control over the use of one's mark, that it's weakened or becomes unprotectable.  The misrepresentation of the AAFD accreditation has been kicked about here for months.  I would imagine that you'd be firing off cease & desist letters immediately for your clients;  when it comes to Cuppy's Coffee, it's always a matter of what will play out in the weeks and months to come...  You'd think this was the freaking Pentagon with all the high level, closed door meetings necessary to determine whether "stealing" is technically "unfair."

You can comb all my sites and articles all you want.  It won't change the fact that "innocence by impotence" is not a very compelling defense for an organization supposedly devoted to fair franchising.

Sean Kelly
seankelly[at]ideafarm.net
Franchise  Pick
Franchisor Marketing

Ski Masks or Rebates

Sean, here is what I don't understand about your position.  Pre-AAFD, the Cuppy's contract had a non refundable franchise fee.  Post-AAFD, the franchise fee was refundable.   Apparently, the vast majority of prospects were able to take advantage of this.  What do you say was wrong with this?

Finally, the Cuppy's contract did grade extremely well.  However, I am of the personal opinion that I would rather have a lower graded contract with an active and powerful IndFA. 

Michael Webster PhD LLB
Franchise News

A "fair" contract can be an instrument of deception...

Michael:

A "fair contract" that's not adhered to - but is instead used to create false trust - is nothing more than an instrument of deception.  The AAFD has effectively provided that, and deserves credit for providing an award with real-world benefit to fly-by-night franchisors.  I just don't believe it has anything to do with "fair franchising."

Pre-AAFD Java Jo'z contracts had refundable deposits.  People gave their money to Morg Morgan and then were unable to get their refunds returned.

Post-AAFD Cuppy's Coffee contracts also have a refundable fees.  People gave their money to Morg Morgan's company and again were unable to get their refunds returned.

Everyone except the AAFD seems to realize that Cuppy's Coffee and Elite Manufacturing don't refund "refundable" payments no matter what's in the contract. 

12 people came to the AAFD and stated that their franchise fees (and rest of their deposits) were not being returned.  Most of them were forced to agree to gag orders, and partial or protracted payments for their interest-free loans to post-AAFD Cuppy's Coffee.  Hardly fair franchising.  Bob Purvin was clearly on the franchisor's, not the franchisee's, side.  Uncle Bob would like you to believe that the silence of the "sheep" is a sign of success.

Several of others still haven't seen a dime. Even you have criticized their due diligence with the old "nanny state" line.  Unfortunately, some of their due diligence included a failure to understand that the AAFD, SBA and IFA logos on a franchise website are actually warning signs.

Sean Kelly

seankelly@ideafarm.net

Franchise  Pick
Franchisor Marketing

Treating Franchisees Unfairly in coffee industry

12 people complained to the AAFD- and what was the outcome? Partial payments when they gave a full deposit? How unfair is that? Do you think Bob Purvin was paid by Cuppy's? Who in their right mind would not have common sense to see that Cuppy's has been an issue since it was created? They keep turning it over to different management because the business is not operating correctly at all.

Refunds

Sean writes: "Pre-AAFD Java Jo'z contracts had refundable deposits.  People gave their money to Morg Morgan and then were unable to get their refunds returned.

Post-AAFD Cuppy's Coffee contracts also have a refundable fees.  People gave their money to Morg Morgan's company and again were unable to get their refunds returned.

Everyone except the AAFD seems to realize that Cuppy's Coffee and Elite Manufacturing don't refund "refundable" payments no matter what's in the contract."

Sean, you are not correct.  The Cuppy's franchise contract, available at Caleasi, which was pre AAFD, states that the franchisee fee was not refundable.  Bob says that post AAFD, the contract provided for refunds. 

Now, I know that some people wanted their refund immediately.  They didn't get it, and from what I have seen, I would have recommended to any litigate that reasonable monthly payments, four or five, would be acceptable. 

Sean, are you in possession of any information which would show that a written settlement agreement had been breached? 

Sean also writes: "Most of them were forced to agree to gag orders, and partial or protracted payments for their interest-free loans to post-AAFD Cuppy's Coffee.  Hardly fair franchising.  Bob Purvin was clearly on the franchisor's, not the franchisee's, side.  Uncle Bob would like you to believe that the silence of the "sheep" is a sign of success."

The AAFD does have a Standard on gag orders, and the settlement agreements will have to conform to that Standard.  If the terms of repayment are not what a reaonsable litigator might have insisted upon, that is important to the investigation.  The Board will have to review these settlement agreements.

Look, everyone feels badly for anyone who has lost a sizeable amount of money in a commericial transaction that went wrong.  I don't mean to diminish that empathy by pointing out that sending a deposit cheque to a construction company before being approved by the bank for overall construction loan is a risky move.  You would ordinarily place deposit money in an attorney's trust account.  It wasn't done - now everyone has to share part of the blame.  Nobody looks good - including the AAFD.  But, I believe, that it is time to move on, get your money and stop kicking yourself.  Am I wrong about that?

Michael Webster PhD LLB
Franchise News

Re:Refunds

Michael

I'm confused with the following statement:

'Bob says that post AAFD, the contract provided for refunds.'

I'm reading the franchise agreement on Calaesi and in 5.01 of the franchise agreement it states that the initial franchise fee is non-refundable under any circumstances.  this was filed with CA in August 2007 (even though their UFOC expired in April 2007, according to their prior year filings), which would've been after the AAFD was involved. 

Are you telling me that the franchise agreement on Calaesi is different than what the AAFD has? 

 

 

AAFD Contract

jd; It is my understanding, because I don't have the graded contract in front of me, that the contract that the sub-committee graded is not on caleasi.  I believe that the caleasi contract is the original Cuppy's franchise contract -drafted by a well known franchisor firm.

Michael Webster PhD LLB
Franchise News

Re; AAFD Contract

Okay, so now I'm really confused.  The AAFD's news release that Cuppy's had a fair contract was on May 14, 2007.  The paperwork signed and delivered to CA was done on June 6, 2007. 

So, did Cuppy's register a different franchise agreement with the state of CA even after the 'fair' contract was approved by the AAFD?  If that's the case, isn't the AAFD worried that they did a 'bait & switch' on the franchise agreements?

Re; AAFD Contract

Okay, so now I'm really confused.  The AAFD's news release that Cuppy's had a fair contract was on May 14, 2007.  The paperwork signed and delivered to CA was done on June 6, 2007. 

So, did Cuppy's register a different franchise agreement with the state of CA even after the 'fair' contract was approved by the AAFD?  If that's the case, isn't the AAFD worried that they did a 'bait & switch' on the franchise agreements?

Caleasi

jd; You are raising a good point.  I suspect that the caleasi version of the contract is not what was signed by a number of franchisees.  Caleasi doesn't always produce the newest form of the franchise contract, as you know from other investigations into their db.  It would be very troubling if after June 6, 2007 anyone had the old franchise contract.

Michael Webster PhD LLB
Franchise News

re: caleasi

But Michael, the certificate signed by Doug Hibbing, the auditor and others were signed on June 6, 2007, which would mean that it wasn't submitted to the state until that time, correct?  That gives them 3-4 weeks (based on the AAFD's press release) to insert the new franchise agreement into their submittal to CA, which wouldn't be a hard thing to do.  If this isn't the same contract that was approved by the AAFD, I think you are looking at an entirely new issue with this company and their honesty with the AAFD.

jd doesn't understand AAFD accreditation

 jd:

The AAFD requires franchisors to have an accredited contract, not to use an accredited contract.

Most keep it in their safe deposit box, next to their alternative passports, fake nose-and-glasses, and papers for their next corporation.

Sean Kelly
seankelly@ideafarm.net

Franchise  Pick
Franchisor Marketing

Two UFOCs in 2007

jd; Take a look at how the UFOC changed from August 2007 to October 2007 - look at item 5 and you will see the change in the treatment of the initial franchise fee.

But, again you are making the good point that caleasi is hard to use.  You really have to pay attention to the red lined versions when doing your homework. 

Michael Webster PhD LLB
Franchise News

AAFD relevance

“Mr. Webster felt there were multiple issues which needed to be addressed. He bluntly stated in the meeting,  “There were certain material facts that were not disclosed during the accreditation process and had those facts been known, the outcome [of the certification] would have been different.”

Undisclosed material facts means AAFD due diligence was lacking in the Cuppy’s certification process or voluntary disclosure is substituted for what a prospective franchisee would assume to be due diligence.  If that is the case with Cuppy’s then what of the certification process for other franchisors who have gained accredited status.

“That’s not a bad legacy, and the success of the AAFD will depend on those from both franchisor and franchisee communities who choose to work together and find solutions—not those who offer only snarky comments with no solutions.”

A franchisor that recognizes value in and pursues a collaborative relationship with its franchise owners will do so with or without the AAFD.

Paul, I appreciate your support of quality franchising.

But, there are many paths to improving franchise quality, and they don't necessarily have to be encased by associations.

I'll include individual contributors when their work results in quality franchisors, franchisees well situated in good concepts, information aimed at franchise education and not sales, and any other effort that results in successful franchise relationships.

True, transparency was made obvious, but so were the errors behind it. That's what caused the response.

There's a lot of good being done outside of associations and organizations, and in many cases that good has been done for longer than two decades. As an example, you yourself are proof of that in providing commentary to the public at this site. Many others provide the same service based on years of experience.

There's a lot wrong, and there’s plenty of room for plenty of helpers. Those who commented, and had every right to comment, are not necessarily 'snarky' folks snickering from seats outside of the pit. They live in the pit on a routine basis.

Nick Bibby is a franchise consultant and principal of the Bibby Group.

Trying to defend the AAFD is like...

trying to spitshine a turd.

The AAFD pretends to influence it does not possess. it pretends to credibility that it doess not have. In the franchise industry the AAFD is a laughing stock. The franchisor segment pretends to take it seriously because it is totally impotent and serves the purpose of safety valve for ranting. If it were effective it would be opposed by the IFA. 

In reality the AAFD raises no money of any consequence to enable any programs that have even the slightest prospect for  impact upon the lives of franchisees.

Throughout the history of the AAFD the lfie of franchisees has gotten worse, not better. Franchise agreements have gotten more draconian, not less. There has been a reduction in the availabiltliy of remedies to aid franchisees, not an increase in them. More people get fleeced, not fewer.

You cannot make the AAFD seem like a real franchise resource, no matter how many times you go to its meetings and no matter how many "standards" you and they publish.

What you might consider is deriding the AAFD for pretending to have influence in the franchisor community that it clearly does not have. It is a joke and nothing more. It will never be more than a joke. --

Richard Solomon, FranchiseRemedies.com,  has over 45 years experience with franchise litigation and crisis management. He is a graduate of The Citadel and The University of Michigan Law School

Defenders of the AAFD have a

Defenders of the AAFD have a bit of a Catch 22 situation, don't they?

If, as they claim, the AAFD name and endorsement has the marketing power to enhance the image of those deemed worthy of displaying it, then for the past year the AAFD has allowed its name, trademark and credibility to be used to benefit one of the most blatantly "unfair" franchise sales enterprises of recent years.

If the AAFD's award did NOT play a role in encouraging franchisees to wire their hard-earned savings into the financial blackhole that is Cuppy's/Java Jo'z/Emerald Coast/Elite Mfg, then Richard must be right and the AAFD logo that's plastered all over Cuppy's franchise marketing holds no significance whatsoever.

The AAFD can't have it both ways. They either helped perpetuate a fraud, or their endorsement has no significance.

Personally, I agree with Richard that the AAFD is not taken seriously by most within the franchise community. However, those new to the industry mistake the AAFD seal as being remotely connected to the concept of "Fair Franchising."

Cuppy's Coffee's franchise sales were dead in the water before being baptized and rebirthed by the AAFD and Uncle Bob, who assured us these Cuppy's boys were OK in his book.

The AAFD gave "Morg" Morgan and crew an alibi & cover story for all of the unreturned deposits received as Java Jo'z, and a fresh start on continuing the same practice throughout 2007. The Cuppy's boys were even able to up their price from $30K to $35,900 and eventually $39,500. Uncle Bob didn't so much as require them to escrow upfront payments in exchange for having free rein with the AAFD trademark.

With all due respect to Paul & Michael, the AAFD was no passive "non-party" that simply offered a "helping hand" in the past year, as Paul suggests. And Michael's statements that "For whatever reason, some propsective franchisees gave money to a construction company that for all they knew could have been insolvent...That was a bad decision." and "the AAFD has been instrumental in making some people's bad decisions turn out better." seem a tad ironic when the AAFD award was likely the reason they DID give their money to that shady construction company.

Paul Steinberg and Michael Webster have done as much as anyone to expose and put an end to this streetcorner shell-game. I suppose their comments are meant to try to keep the AAFD from collapsing completely. In my humble opinion, any "fair franchising" organization that doesn't have the cahones to take a stand against blatantly unfair franchising practices on their own doorstep - and has to convene months of committee meetings to discuss whether it's acceptable to steal people's deposits - ain't worth saving.  Franchise fraudsters have plenty of other resources catering to them.

Sean Kelly

seankelly[at]ideafarm.net

Franchise Pick
Franchisor Marketing

No Dilemma

Sean writes: "The AAFD can't have it both ways. They either helped perpetuate a fraud, or their endorsement has no significance."

Uh, Sean since the AAFD endorses getting professional advice about a franchise purchase, how could anyone have reaonably relied upon the AAFD's accreditation and not also followed the AAFD's advice?

Now, what is far more worrying is the number of solds but not opened in the Cuppy's franchise system, I believe Exhibit H on caleasi.

Michael Webster PhD LLB
Franchise News

Sean...you Gringo

Hey Sean:

It's cajones not cahones, you gringo! Next, you'll be calling them 'cigar-o cactus'.

hahaha.

That's the Amish spelling

 :)

Sean Kelly
seankelly[@]ideafarm.net

TGPPH :  The Franchise Alternative!

FUNNY...... AAFD & CUPPY'S... SPITSHINE TURDS

THAT IS HILARIOUS. I AM GLAD TO SEE SOMEONE THAT HAS BRAINS, AND COMMON SENSE. WHAT IN THE WORLD WAS THE AAFD THINKING EVEN ALLOWING CUPPY'S COFFEE TO SPEAK FOR ANY AMOUNT OF TIME AT THE SHOW? THAT WAS A WASTE OF CUPPY'S MONEY THAT THEY COULD USE ON ADVERTISING, HA HA..... I HAVE NEVER ONCE SEEN ANY ADVERTISEMENTS FOR CUPPY'S EXCEPT THEIR WEBSITE. I THINK BOTH AAFD AND CUPPY'S ARE GOING TO KEEP POLISHING THE TURD UNTIL IT SINKS!

Old NA contends...

"In reality the AAFD raises no money of any consequence to enable any programs that have even the slightest prospect for  impact upon the lives of franchisees".

On the contrary, Mr. Solomon, The AAFD has had and continues to have a tremendous positive impact on the franchisees who are members of the Meineke Dealers Association.  Without their guidance and assistance we would not have as fair a contract, we would not have as strong an independent franchisee association, we would not have the opportunity to participate in a nationwide healthcare program, and we would not have been able to continue to have informed, open and frank discussions with our franchisor about the future of our businesses. 

It is always interesting to see the visceral blogosphere response to the AAFD and how ironic is it that many lament the powerful impression of a contract accreditation that is awarded to a franchisor who otherwise acts improperly while others like yourself dismiss "Alvin and the Chipmunks" as an irrelevant joke. 

Of this we can be certain--no amount of sarcastic derision will dispel the passion that the members of the AAFD and Bob Purvin have for their stated mission, a passion and mission that ultimately should be applauded, not ridiculed. 

 

Meinek'e mind was made right by...

litigators - not by the AAFD.--

Richard Solomon, FranchiseRemedies.com,  has over 45 years experience with franchise litigation and crisis management. He is a graduate of The Citadel and The University of Michigan Law School

What Litigators Can and Cannot Do

Richard is simply wrong.  And wrong for important reasons.

Meineke's IndFA exists because of strong leadership, an opportunity to exercise collaborative franchising within a fair contract.  

Michael Hankes, counsel to the Meineke's Dealer Association, is the longest serving member of the Standards Committee.  Bob Einhorn, Michael Garner, and Carmen Caruso have all served on the Standards Committee.  These are all excellent litigators who also believe in fair franchising.

Several years ago, Carmen explained the franchise litigation paradox very well: every franchisee legal win is neutralized by clever drafting by franchisor counsel.  We saw this in the recent Domino's case: although for some franchisee's the POS system will not be mandatory, Domino's counsel noted that the new franchise agreement, which will apply to all renewals, will make the POS mandatory. Litigation bought a temporary victory.

Litigation relationship wins are always trumped by new drafting.  That is why we see a spiral of ever worsening franchise contracts.

Richard proposes no solutions and scoffs at the meager process made by the AAFD. 

It would be easy to write Richard off as a loud mouth no nothing Texan.  That would also be wrong.

He and others are right to wonder why collaborative franchising, despite its obvious appeal, has not caught on more. 

I don't know the answer.  I have some ideas, but over the next several years the Standards Committee is going to make more an concentrated effort to hear from people about their ideas for making franchise relationships work.

Even Richard will make contributions, I predict. 

Michael Webster PhD LLB
Franchise News

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