1, Bye Dep. (Id. Ex. Ex. at 74.). 66, 69, 54-55; Def.’s Mot. (Def.’s Mot. Ex. On June 3, 1998, Nationwide offered Plaintiff the position of Financed Community Agent (“FCA”) at a salary of $65,000 per year, contingent on Plaintiff passing a number of employment screens and completing certain training and licensing programs. Ex. 3.) In this agreement, Plaintiff agreed that Nationwide could increase its premiums without any prior notice to Plaintiff and could eliminate lines of business or stop writing insurance in Michigan altogether, without notice to or consent from Plaintiff. at 72.) Plaintiff acknowledges that he understood and agreed to this provision, but he “assumed” that Nationwide, would not ever let its agents “go bankrupt” because “that’s not the right thing to do.” (Id. 1, Bye Dep. (Def.’s Mot. 2.) On June 29, 1998, Plaintiff signed an FCA Agreement under which Nationwide placed Plaintiff in an agency location, paid his salary and bonuses and paid over $200,000 per year to cover his expenses, including office lease, furnishings, utilities and marketing expenses while Plaintiff continued to learn the business of selling insurance. (Def.’s Mot. 69.) Plaintiff understood that Nationwide was a mutual insurance company, owned by its policyholders, and that Nationwide would act under this provision, and even leave an entire market without notice to its agents, if it was in the best interests of its policyholders to do so. 69, 70-71, 73.) Plaintiff acknowledged, however, that there was never an agreement or writing between himself and Nationwide in which Nationwide made any such agreement not “to pull the carpet up from under [him].” (Id.
400, 410 (E.D. 1997). A statement that, at the time it is made, cannot be said “from its nature” to be true or false cannot be the basis for a claim in fraud. Cook v. Id. Supp. However, the court concluded that such statements that related to competition between independent and in-store franchises in the then-existing market were actionable. at 549, 551. Little Caesar Enter., Inc., 972 F. Mich. In Little Caesar, the court found that defendant’s real estate manager’s statements regarding whether certain independent franchises were in competition with in-store franchises were not actionable to the extent that they related to future competition.
(Def.’s Mot. (Pls.’s Resp. 1, Bye Dep. 5.) Plaintiff provides no evidence that Nationwide believed such a “scheme” — having failing agencies all over the State of Michigan — would be a good business decision. C, Sheffieck Dep. 143, 149, 154; Pls.’s Resp. Ex. Plaintiff offers no evidence to support the allegation that Nationwide set its agents up to fail. There is no question that the numbers in the pro forma were projections and assumptions and that Plaintiff agreed that the results forecasted appeared, at the time they were made, to be achievable. Plaintiff has not offered one iota of evidence that Nationwide “leverage[d] the agent’s own investment of time and money in the business” to expand market share. While Nationwide may have set its goals too high for Michigan, and failed to achieve its hoped-for growth in this market, Plaintiff has not produced evidence that this was done with the specific intent to defraud Plaintiff. Ex. 22-24.) While Plaintiff claims that the state growth targets placed in the pro formas by Nationwide were unrealistic, and that the premium rate increases forced on the agents made these targets unattainable, Plaintiff does not claim that these figures were ever hidden from him.
(Compl. All three elements must be present in order for a relationship to be governed by the MFIL. ¶ 57.) Under MCL 445.1502(3), a “franchise” is defined as “a contract or agreement, either express or implied, whether oral or written, between 2 or more persons to which all of the following apply: (a) A franchisee is granted the right to engage in the business of offering, selling, or distributing goods or services under a marketing plan or system prescribed in substantial part by a franchisor; (b) A franchisee is granted the right to engage in the business of offering, selling, or distributing goods or services substantially associated with the franchisor’s trademark, service mark, trade name, logotype, advertising, or other commercial symbol designating the franchisor or its affiliate; (c) The franchisee is required to pay, directly or indirectly, a franchise fee. Plaintiff claims that Nationwide violated the Michigan Franchise Investment Law (“MFIL”), MCL 445.1501 et seq., by employing devices, schemes and artifices to defraud in its sale or offer of a franchise.
The Nationwide agency agreements themselves do not speak to a fee and Plaintiff was not obligated to participate in the CAP Loan program as a condition to becoming a Nationwide agent. Plaintiff has not alleged facts sufficient to create a genuine issue of material fact in support of his claim that he was required to pay a franchise fee consistent within the reasoning set forth in Hamade. Subsequent market developments cannot transform an agreement that was not subject to the MFIL at its inception into a franchise subject to the requirements imposed by the MFIL.” Hamade v. Sunoco, Inc. The fee is the profit from the book obtained by Nationwide.” (Pls.’s Resp. When the agent fails, which, according to Plaintiffs’ theory, he or she is going to do, Nationwide takes the enhanced book of business, sells it for more than it credits the defaulted former agent and then makes more money off the same book with the new agent. “Because the MFIL seeks to protect prospective franchisees by imposing various requirements on the franchisor in connection with the offer and sale of a franchise, see MCL 445.1504(1), whether a contract or agreement constitutes a franchise for purposes of the MFIL must be determined from the circumstances present at the time of the offer or sale. Nationwide is entitled to summary judgment on Plaintiff’s MFIL claim. Supp. See Bucciarelli, supra 662 F. App.145, 159 (2006). R & M, 271 Mich. Under MCL 445.1503(1), a “franchise fee” is defined as “a fee or charge that a franchisee or subfranchisor is required to pay or agrees to pay for the right to enter into a business under a franchise agreement, including but not limited to payments for goods and services.” Was Plaintiff required to or did he agree to pay a fee or charge to Nationwide for the “right to enter into a business under a franchise agreement?” Plaintiff articulates the following theory in support of his argument that he paid a franchise fee: “Plaintiffs contend that Defendant churns agents. Because Plaintiff has not provided evidence that he paid a franchise fee, the Court concludes that the MFIL is not applicable to Plaintiff’s claims against Nationwide. 18.) Although the logic of this alleged business theory escapes the Court, it is clear that the “profit” occurs, if at all, after the agent has been “churned” and therefore cannot possibly be paid for the right to enter into the agreement, which of necessity would have to be paid at the inception of the agreement. 2d at 819.[ 12 ] In fact Plaintiff was free to use whatever means he chose to finance his acquisitions and expansions, in which case such “profit” would presumably never be realized.
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