(concurring)—I disagree with the majority's determination that failure to disclose the fact that the yogurt mix was readily available to nonfranchisees was not a violation of the Franchise Investment Protection Act (FIPA).
The act makes it unlawful for one to omit "to state a material fact necessary in order to make the statements made in light of the circumstances under which they were made not misleading." (RCW 19.100.170(2)); footnote 2. The majority points out that the franchisor was "required to disclose only those facts which it could assume reasonably are material to the transaction and unknown to the *233other party." With this I agree. It then argues that since exclusivity had not been promised there was obviously no misstatement of a material fact. This analysis does not address the misleading aspect of the conduct proscribed by the statute.
It may be true that the particular yogurt mix was unique as that term is defined by Webster. Nevertheless, the statement that there was available a unique product to a franchisee who paid a fee and agreed to the terms of a franchise agreement is at the least misleading without disclosing the fact that the same product which is the essence of the franchise is available to anyone for the asking.
In my view this information would be a critical factor in deciding whether or not to purchase the franchise. The fact that there was no guaranty that they would have the only yogurt stand franchise in a given area does not buttress the majority's position. In such an event, the Morrises would be on a more equal footing with another franchisee burdened with comparable fees and restrictions imposed by the franchise agreement.
Nevertheless I agree with the majority's holding that the Morrises failed to establish that the damages they suffered resulted from this undisclosed material fact as well as all other aspects of the opinion. Consequently, I concur with the affirmance of the judgment below and the award of attorney’s fees on appeal.
Review granted by Supreme Court October 30, 1985.