Does the arbitrator for All Dogs Unleashed have to disregard the terms of the agreement?
All_Dogs_Unleashed Franchise · 2025 FDDAnswer from 2025 FDD Document
T THERE ARE OTHER PARTIES IN THE ACTION OR PROCEEDING. This waiver is effective even if a court of competent jurisdiction decides that the**
arbitration provision in this Agreement is unenforceable. Each party agrees that it has had full opportunity to consult with counsel concerning this waiver, and that this waiver is informed, voluntary, intentional, and not the result of unequal bargaining power.
- (b) Damage Waiver. Each of the parties EXPRESSLY WAIVE(S) ANY CLAIM FOR PUNITIVE, MULTIPLE AND/OR EXEMPLARY DAMAGES; except that this waiver and limitation does not apply with respect to (a) your obligation to indemnify us under any provision of this Agreement, or (b) any claims we bring against you and/or your guarantors and/or your owners for unauthorized use of the Marks, unauthorized use or disclosure of any Confidential Information, unfair competition, breach of your confidentiality or non-competition covenants under this Agreement, and/or any cause of action under the Lanham Act, and we are entitled to receive an award of multiple damages, attorneys' fees and all damages as provided by law.
- (c) Each of the parties EXPRESSLY AGREE(S) THAT IN THE EVENT OF ANY FINAL DETERMINATION, ADJUDICATION OR APPLICABLE ENACTMENT OF LAW THAT PUNITIVE, MULTIPLE AND/OR EXEMPLARY DAMAGES MAY NOT BE WAIVED, ANY RECOVERY BY ANY PARTY IN ANY ARBITRATION OR OTHER FORUM MUST NEVER EXCEED 2 TIMES ACTUAL DAMAGES, except that we may recover more than 2 times our actual damages if you commit acts of willful trademark infringement or otherwise violate the Lanham Act, as provided by law.
- (d) No Class or Collective Actions. You agree that any arbitration, or, if applicable, litigation, between you (or any of your owners or guarantors), on the one hand, and us or any All Dogs Unleashed Franchise Related Party, on the other hand, will be on that party's individual claim and that the claim or claims subject to arbitration and/or litigation must not be arbitrated or litigated on a class-wide, associational or collective basis.
Source: Item 23 — RECEIPTS (FDD pages 49–158)
What This Means (2025 FDD)
Based on the 2025 All Dogs Unleashed Franchise Disclosure Document, the agreement outlines specific waivers related to damages but does not explicitly state that an arbitrator must disregard the terms of the agreement. Instead, the document emphasizes adherence to the agreement's provisions while allowing for certain limitations and modifications.
The agreement includes an express waiver of any claim for punitive, multiple, and/or exemplary damages, with specific exceptions for the franchisee's obligation to indemnify All Dogs Unleashed, or claims brought by All Dogs Unleashed against the franchisee for unauthorized use of marks, confidential information, unfair competition, or breaches of confidentiality or non-competition covenants. In these exceptional cases, All Dogs Unleashed is entitled to receive an award of multiple damages, attorneys' fees, and all damages as provided by law.
Furthermore, the agreement stipulates that if a final determination or applicable law prevents the waiver of punitive, multiple, or exemplary damages, any recovery by any party in arbitration or other forum must not exceed two times actual damages. However, All Dogs Unleashed may recover more than two times its actual damages if the franchisee commits acts of willful trademark infringement or violates the Lanham Act. These stipulations suggest that the arbitrator must consider and apply the terms of the agreement, including the limitations and exceptions related to damages, rather than disregard them entirely.
The All Dogs Unleashed agreement also includes clauses about waivers and delays, stating that the franchisor's waiver of any breach or failure to exercise rights does not constitute a waiver of future compliance with the agreement's provisions. This reinforces the importance of adhering to the agreement's terms throughout the franchise relationship and in any dispute resolution process.