Are disputes arising from the Clayton Act subject to mediation for Boulder Designs?
Boulder_Designs Franchise · 2025 FDDAnswer from 2025 FDD Document
- i. disputes and controversies arising from the Sherman Act, the Clayton Act or any other Federal or state antitrust law;
- ii. disputes and controversies based upon or arising under the Lanham Act, as now or hereafter amended, relating to the ownership or validity of any Confidential Information, the Proprietary Marks or any other trademarks;
- iii. disputes and controversies relating to actions to obtain possession of the premises of the Franchised Business under lease or sublease.
Both parties will sign a confidentiality agreement reasonably satisfactory to Franchisor. Upon submission, the obligation to attend mediation in the county and state designated by Franchisor (currently McLellan County, Texas) is binding on both parties. Each party will bear his, her or its own costs for the mediation, except the mediation fee and the fee for the mediator will be split equally.
Any information disclosed by either party in mediation may only be used for those purposes and may not be used in any following litigation or arbitration. Mediation must be conducted in person, and no telephonic or electronic appearance by any of the parties or their counsel is permitted except for the purposes of scheduling mediation or discussing non-material mediation-related matters.
To initiate mediation, either Franchisor or Franchisee shall appoint one mediator and after appointment of the mediator, shall notify in writing the other of such appointment within three business days after selection of said mediator. The mediation shall be conducted in McLellan County, Texas as directed by the sole mediator. If an agreement is reached between the parties, then the signed award of the mediator shall be final and binding upon Franchisor and Franchisee and any other party to the mediation. Judgment may be entered upon the award of the mediator in any court having competent jurisdiction. If the first mediation between the Franchisor and Franchisee is not successful, both parties agree, prior to instituting any court action except as excluded within this Section, to participate in a second mediation session, and a third if necessary, which shall last at least eight hours or until an agreement is reached whichever occurs first.
Neither illness, Covid, inconvenience, weather, or any other reason shall serve to excuse your personal appearance for mediation.
Source: Item 22 — CONTRACTS (FDD page 50)
What This Means (2025 FDD)
According to Boulder Designs' 2025 Franchise Disclosure Document, disputes arising from the Clayton Act are subject to mediation. Specifically, disputes and controversies arising from the Sherman Act, the Clayton Act, or any other Federal or state antitrust law are included.
Both parties involved are required to sign a confidentiality agreement that is reasonably satisfactory to Boulder Designs. Once submitted, both parties are obligated to attend mediation in the county and state designated by Boulder Designs, which is currently McLellan County, Texas. Each party is responsible for their own costs, but the mediation fee and the mediator's fee will be split equally between the parties.
Information disclosed during mediation can only be used for mediation purposes and cannot be used in any subsequent litigation or arbitration. Personal appearance is required for mediation, and telephonic or electronic appearances are not permitted, except for scheduling or discussing non-material matters. To initiate mediation, either Boulder Designs or the franchisee must appoint a mediator and notify the other party in writing within three business days. If the initial mediation is unsuccessful, both parties must participate in a second and, if necessary, a third mediation session, lasting at least eight hours or until an agreement is reached. Excuses such as illness, COVID, inconvenience, or weather will not excuse personal appearance for mediation.
For prospective Boulder Designs franchisees, this means that if a dispute arises related to antitrust laws like the Clayton Act, they will be required to attend mediation in McLellan County, Texas. They will need to factor in the costs of travel and legal representation, in addition to splitting the mediation and mediator fees with Boulder Designs. The franchisee should also be prepared for multiple mandatory mediation sessions before pursuing other legal avenues.