Does the Bananas Smoothies Frozen Yogurt agreement include a waiver of exemplary damages?
Bananas_Smoothies_Frozen_Yogurt Franchise · 2025 FDDAnswer from 2025 FDD Document
Under Minn. Rule 2860.4400J, (1) a franchisee cannot waive any rights, (2) the franchisee cannot consent to the franchisor obtaining injunctive relief, although the franchisor may seek injunctive relief, and (3) a franchisee cannot be required to consent to waiver of a jury trial. In addition, a court will determine whether a bond is required.
Minn. Stat. §80C.21 and Minn. Rule 2860.440J prohibit us from requiring litigation to be conducted outside Minnesota. In addition, nothing in the Disclosure Document or agreement can abrogate or reduce any of your rights as provided for in Minnesota Statutes, Chapter 80C, or your rights to any procedure, forum or remedies provided for by the laws of the jurisdiction.
Under Minn. Rule 2860.4400D, we are prohibited from requiring you to sign a general release.
No statement, questionnaire, or acknowledgement signed or agreed to by a franchisee in connection with the commencement of the franchise relationship shall have the effect of (i) waiving any claims under any applicable state franchise law, including, fraud in the inducement, or (ii) disclaiming reliance on any statement made by any franchisor, franchise seller, or other person acting on behalf of the franchisor. This provision supersedes any other term of any document executed with the franchise.
Source: Item 23 — RECEIPT (FDD pages 58–231)
What This Means (2025 FDD)
Based on the 2025 Bananas Smoothies Frozen Yogurt Franchise Disclosure Document, it is not explicitly stated whether the franchise agreement includes a waiver of exemplary damages. However, the document does state that under Minnesota Rule 2860.4400J, a franchisee cannot waive any rights. This suggests that any clause requiring a waiver of rights, including the right to pursue exemplary damages, may not be enforceable in certain jurisdictions like Minnesota.
Additionally, the FDD includes addenda for specific states like Indiana and New York, which modify or supersede certain disclosures in the main document. These addenda indicate that certain provisions that might be standard in the franchise agreement are subject to state-specific regulations and may not be enforceable in their original form. For example, in California, any provision disclaiming reliance on representations made by the franchisor is deemed contrary to public policy and unenforceable.
Therefore, while the Bananas Smoothies Frozen Yogurt FDD does not directly address the waiver of exemplary damages, prospective franchisees should carefully review the franchise agreement and any applicable state-specific addenda to understand their rights and limitations. It would be prudent to consult with a legal professional to determine the enforceability of any waiver clauses in their specific jurisdiction.