Are the remedies available to BNC for understatements by a Benihana franchisee exclusive?
Benihana Franchise · 2024 FDDAnswer from 2024 FDD Document
18.7 Franchisee acknowledges and agrees that any failure to comply with the covenants and agreements in this Article 18, or with the covenants and agreements in Article 6 with respect to the Marks, will result in irreparable injury to BNC for which no adequate remedy at law may be available, and, therefore, BNC will be entitled, in addition to any other remedies BNC may have at law or in equity, to obtain specific performance of, or an injunction against the violation of, the requirements of this Article 18 and such requirements of Article 6, without showing actual or threatened damage and without the necessity of posting bond.
18.7.1 Franchisee agrees to pay all court costs and reasonable attorney's fees incurred by BNC in obtaining specific performance of, or an injunction against violation of, the requirements of this Article 18 or Article 6.
18.8 Franchisee expressly agrees that no claim Franchisee may have or assert against BNC, whether or not arising from this Agreement, will constitute a defense to the enforcement by BNC of the covenants in this Article 18.
Source: Item 23 — Receipts (FDD pages 74–576)
What This Means (2024 FDD)
Based on the 2024 Benihana Franchise Disclosure Document, the remedies available to Benihana for a franchisee's failure to comply with trade secret and restrictive covenant agreements are not exclusive. Benihana retains the right to pursue all available remedies at law or in equity.
Specifically, Benihana can seek specific performance or an injunction against a franchisee violating trade secret and restrictive covenant requirements. This means Benihana can ask a court to order the franchisee to specifically fulfill their obligations or to stop certain prohibited actions. Benihana does not need to demonstrate actual or threatened damage to obtain such an injunction and is not required to post a bond.
Furthermore, the franchisee is responsible for covering all court costs and reasonable attorney's fees incurred by Benihana in obtaining specific performance or an injunction. The agreement also stipulates that any claims the franchisee may have against Benihana will not serve as a defense against Benihana enforcing these covenants. This ensures Benihana can enforce these provisions without being hindered by potential disputes the franchisee might raise.