I recommend that franchisors save all records relating to dealings with franchisees and prospective franchisees. The basis for this recommendation are record retention requirements under federal and state franchise laws and also "best practices."
The only record retention requirements in the FTC Franchise Rule apply to:
1. a sample copy of each FDD used (for a period of 3 years after the last date used);
2. a copy of each signed FDD receipt relating to a completed sale (for a period of at least 3 years, presumably from the date of the receipt); and
3. written substantiation of any financial performance representations made in Item 19 (no specific retention period, but it is a violation of the FTC Franchise Rule to fail to provide it to the FTC upon reasonable request).
16 CFR Sections 436.6(h) & (i) and 436.9.
As an example of some franchise laws, California requires in general terms that “every franchisor or subfranchisor offering franchises for sale in this state shall at all times keep and maintain a complete set of books, records, and accounts of such sales.” CA Corporations Code Section 31150. This statute applies only to “sales” (and not to prospective sales) but the retention period is potentially forever (“at all times”).
As another example, Maryland state franchise law is much more detailed:
A. Records to Be Maintained. A franchisor offering or selling a franchise in the State shall maintain complete and accurate records of offers and sales of franchises, including but not limited to:
(1) Offering circulars;
(2) Advertising;
(3) Correspondence with franchisees and prospective franchisees;
(4) Past and present operations manuals;
(5) Training records;
(6) Training manuals; and
(7) Copies of executed agreements.
B. Form of Records. The records may be maintained on photographic or electronic media, but shall be printed if the Commissioner so orders.
C. Retention Schedule. The records described in §A of this regulation shall be maintained at an office readily accessible to the franchisor for 5 years.
COMAR 02.02.08.15. This statute applies to “offers and sales” (not just sales), and specifically includes correspondence with prospective franchisees.
Apart from any statutory requirements for franchise record retention, I suggest that it is "best practices" to retain an electronic copy of ALL communications with prospective franchisees for at least the limitations period under the applicable statute of limitations plus a couple of years to be safe. The burden of proof under state franchise laws regarding compliance with applicable law usually rests with the franchisor by statute. So, it is best to keep the proof of compliance for years past the time when the proof might be needed.
