Blvd. of Broker Dreams pt. 2 NASAA Model Broker Act

By: Lane Fisher, Max Staplin and JoyAnn Kenny, Fisher Zucker

Two months ago, we provided an overview of the California’s proposed, IFA-supported Senate Bill No. 919 (prior article) through the lens of not just California franchise brokers, franchisors, and franchisees, but as a bellwether of increased regulation for franchise brokers across the country. On May 13, the North American Securities Administrators Association (“NASAA”) published a proposed Model Franchise Broker Registration Act (“Franchise Broker Act”) for public comment, and following tomorrow’s June 13 deadline the comments will be posted to

The Franchise Broker Act presents a high-level framework for franchise broker registration and disclosure that can be adopted by individual states. The proposed language draws from the State of Washington’s current broker registration requirements and includes some similarities to California’s proposed bill. The rationale behind the need for such a bill includes concerns over certain problematic broker practices as well as franchisee confusion over who a broker actually represents. As support for this framework, NASAA references a 2020 report by United States Senator Catherine Cortez Masto analogizing franchise brokers to real estate brokers that have more stringent licensing and continuing education requirements.

Contents of the Franchise Broker Act

The proposed Franchise Broker Act primarily focuses on registration requirements and makes it unlawful for a broker or broker representative to engage in the offer or sale of a franchise unless they are registered with the state. Notably, liability is also imposed on franchisors that utilize an unregistered broker or broker representative.

The registration process itself consists of an application form, payment of a fee, and consent to service of process and the jurisdiction and venue of the state’s courts. The Franchise Broker Act contemplates annual registration filings with amendments necessary upon a material change in the information presented in the application. Registrations can be revoked or suspended for a number of reasons, including deficiencies in the application, willful violations of the Act, relevant convictions or administrative actions, unethical behavior, or insolvency.

The Franchise Broker Act also includes language permitting a state to impose competency exams or experience requirements as well as continuing education requirements and financial and/or insurance requirements upon brokers.

While not as extensive on its face as the California bill, NASAA’s Franchise Broker Act does include a pre-sale disclosure requirement prior to any in-person meeting, virtual meeting, phone call, or email communication regarding a franchise opportunity. It also contemplates the disclosure of additional details regarding the franchise broker’s compensation upon or prior to providing the franchisor’s Franchise Disclosure Document to the franchisee prospect.

Finally, the proposed Franchise Broker Act includes recordkeeping requirements that permit state examinations or audits, as well as the requirement that franchisors file a notice with the state identifying the franchise brokers that they use (which is similar to the current requirement in Washington).

Overall, while this model statute is purposefully broad and leaves room for individual states to flesh out the details, it paints a fairly clear picture of NASAA’s intention to create both registration and disclosure requirements for franchise brokers and to hold franchisors accountable for ensuring that their brokers comply with these requirements.

As this picture comes into greater focus following this comment period and the development of specific bills proposed by individual states, it’s important for all stakeholders to work together to ensure that the ultimate regulatory framework achieves the intended results. To that end, we encourage franchisors, franchisees and brokers to consider the big picture issues (some of which are presented in the following section of this article) as they finalize their own comments and engage in ongoing conversations regarding this topic

Big Picture Issues for Franchisors, Franchisees, and Brokers

In addition to our own comments described in the following section, we believe it’s important for the legal arm of the franchising community to distill model statutory language and proposed regulatory frameworks into digestible topics that non-lawyers can evaluate. After all, it’s the franchisors, franchisees, and brokers will be the ones that ultimately feel the greatest impact of any new laws, and their voices should be the loudest when it comes to shaping these laws.

We encourage anyone in the franchising community that has not already done so to email their comments to NASAA by tomorrow.

They should be emailed to with a cc to,, and


For franchisors, we encourage you to consider the prospect of your liability for the acts of third-party brokers. The target of the Franchise Broker Act is problematic broker practices, and the registration and disclosure obligations fall squarely on the shoulders of brokers, but the currently-proposed language holds franchisors liable if they use the services of an unregistered broker or broker representative, even if the franchisor is unaware that the broker is not registered. We recommend advocating for the removal of franchisor liability entirely. Alternatively, as franchisor liability seems to be a key component of the model Act, we recommend supporting a framework along the lines of our Comment #3 below or one where the obligation to verify a broker’s registration status is reasonably limited (for example, franchisors must only verify the status once a year when they submit their FDD to a registration state).


Franchisees are the primary beneficiary of the Franchise Broker Act, so it’s important that the resulting framework actually solves the issues that carry the most weight with franchisees. We are guessing that franchisees are less concerned with the ins and outs of the broker registration process than they are with making sure that they get all of the information that they need to determine whether or not to purchase a franchise. Whether it’s a better need to understand the broker’s relationship with the franchisor, the broker’s history and background, or the role of brokers generally, we recommend that franchisees make their voices heard when it comes to the desired contents of any mandated broker disclosure documents.


In addition to the nuts and bolts of incorporating the registration and disclosure process into their day-to-day operations, broker networks should consider the prospect of vicarious liability based on individual actors. As noted in our Comment #4 below, the model Franchise Broker Act does not provide clear guidelines regarding the liability for an entire network if one of their individual brokers makes a sale while not registered in a particular state, and seems to open the door for an entire network to lose their registration if one of their individual brokers commits one of the prohibited acts (filing an incomplete application, willful violations of the Act, relevant convictions or administrative actions, etc.). We recommend that broker networks consider how they will realistically ensure compliance by all of their individual broker representatives in proposing a structure for the registration process and the ability to cure any issues that arise.

Our Comments

Generally, even though it’s arguable that franchise brokers need to be regulated to the same degree as real estate brokers, we agree that some level of regulation will prove beneficial to the franchise industry. As noted above, the language proposed by NASAA is broad and leaves many of the material terms undefined. States will undoubtedly supplement the model Franchise Broker Act with additional statutory and regulatory language. For our line-by-line notes regarding some of the specific provisions that warrant additional clarification and/or revision, please click here, and here are our more general comments:

1) Definition of Franchise Brokers – The suggested definition of franchise brokers includes anyone that “directly or indirectly” engages in the offer or sale of a franchise and receives any consideration from a franchisor. The preamble to the Franchise Broker Act contemplates that a “franchise broker” also includes individuals that locate or evaluate the qualifications of franchisees or manage the prospect pipeline for franchisors, in addition to more traditional sales functions. However, as the primary concerns regarding brokers revolve around representations to franchisees as well as confusion over who they represent, we believe that the definition should be limited to individuals or entities that interact with franchisee prospects, even if such interaction is indirect.

2) Franchisee Referral Fee Threshold – The definition of who will be deemed to be a franchise broker carves out current franchisees of the franchisor, but only if the franchisee does not receive more than $1,000 in referral fees or other consideration in a calendar year. While we agree that some sort of threshold is necessary to guard against franchisees that effectively take on a second job selling franchises, we think this $1,000 threshold is too low as it could interfere with a franchisor’s bona fide referral program and increasing this threshold to $10,000 would not undermine the intent of this requirement.

3) Franchisor Liability – As noted above, the Franchise Broker Act provides for franchisor liability if the franchisor uses an unregistered broker or broker representative. We believe that adding a knowledge component would be prudent as it insulates franchisors that unknowingly use a broker that they reasonably believe to be registered (e.g., if a broker has its registration suspended and fails to notify the franchisor).

4) Vicarious Liability for Broker Networks – With the growing influence of larger broker networks and franchise sales organizations (FSOs), we believe that it’s important for any applicable statute to consider the consequences that a prohibited act of one individual broker representative would have on the registration status of an entire network. At a minimum, we believe that broker networks should have the ability to cure certain technical defects of their individual brokers (such as failure to pay a renewal fee). More generally, we think that adding clarity around the interrelated liability of individual broker representatives and broker networks in the next draft of the statute will help the impacted groups get a better understanding of the processes and procedures they will need to implement.

5) Recordkeeping Timeframe – Similar to the referral fee threshold, we are not opposed to requiring that franchise brokers maintain accurate records about their sales activities. However, the 10-year requirement imposed by the Franchise Broker Act seems excessive and we would recommend reducing this to 5 years.

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