HB-6100, As Passed Senate, July 21, 2010
SENATE SUBSTITUTE FOR
HOUSE BILL NO. 6100
A bill to amend 1981 PA 118, entitled
"An act to regulate motor vehicle manufacturers, distributors,
wholesalers, dealers, and their representatives; to regulate
dealings between manufacturers and distributors or wholesalers and
their dealers; to regulate dealings between manufacturers,
distributors, wholesalers, dealers, and consumers; to prohibit
unfair practices; to provide remedies and penalties; and to repeal
certain acts and parts of acts,"
by amending sections 11, 12, 13, and 14 (MCL 445.1571, 445.1572,
445.1573, and 445.1574), sections 11 and 12 as amended by 1983 PA
188, section 13 as amended by 1998 PA 456, and section 14 as
amended by 2000 PA 239.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
11. (1) Upon the termination, cancellation, nonrenewal,
or
discontinuance of any dealer agreement, Subject to section 12,
if a manufacturer terminates, cancels, does not renew, or
discontinues a dealer agreement for any reason other than a reason
described in section 10(c), or if a dealer agreement is terminated,
canceled, nonrenewed, or discontinued as a result of coercion by
the manufacturer, the manufacturer shall pay the new motor vehicle
dealer
shall be allowed fair and reasonable compensation by the
manufacturer
or distributor for all of
the following:
(a)
All new current model year motor vehicle inventory
purchased
from the manufacturer or distributor, which has not been
materially
altered, substantially damaged, or driven for more than
300
miles and all new motor vehicle inventory not of the current
model
year which has not been materially altered, substantially
damaged,
or driven for more than 300 miles, provided the noncurrent
model
vehicles were purchased from the manufacturer or distributor
and
drafted on the dealer's financing source or paid for within 120
days
of the effective date of the termination, cancellation, or
nonrenewal.
Each vehicle in the new motor
vehicle dealer's
inventory that meets all of the following:
(i) The vehicle is new, undamaged, not materially altered, and
unsold.
(ii) The vehicle is a current model year vehicle or a vehicle
from the model year preceding the current model year.
(iii) The vehicle was purchased from the manufacturer or another
dealer of the same line make in the ordinary course of business
before the dealer received notice of the termination,
discontinuance, cancellation, or nonrenewal of the dealer agreement
under section 10.
(iv) The vehicle has less than 750 miles registered on the
odometer.
(b) Supplies and parts inventory purchased from the
manufacturer
or distributor and listed in the manufacturer's or
distributor's
current parts catalog.
(c)
Equipment , furnishings, and signs purchased from the
manufacturer. or
distributor.
(d)
Special tools purchased from the manufacturer or
distributor
within 3 years of the date of in
the 3-year period
preceding the effective date of the termination, cancellation,
nonrenewal, or discontinuance of the dealer agreement.
(e) Data processing programs, software, and equipment that a
manufacturer required that a terminated new motor vehicle dealer
obtain or purchase for communication of sales, service, warranty,
or other information between the dealer and the manufacturer; that
the terminated dealer used exclusively for the make or line of
vehicle and location covered by the terminated dealer agreement to
manage or report data to the manufacturer; and that meets 1 of the
following:
(i) It was purchased by the dealer in the 2-year period
preceding the date of the termination, discontinuance,
cancellation, or nonrenewal of the dealer agreement.
(ii) It was leased by the dealer before the effective date of
the termination. However, a manufacturer is only responsible under
this subparagraph for the amounts remaining to be paid or paid in
advance on the dealer's lease for a period that does not exceed 2
years.
(f) The net cost of any upgrades or alterations made by a
terminated new motor vehicle dealer to the dealership facilities if
the manufacturer required the upgrades or alterations and the
upgrades or alterations were made in the 2-year period preceding
the effective date of the termination of the dealer agreement. In
determining fair and reasonable compensation under this
subdivision, the manufacturer may offset any amounts paid by the
manufacturer to subsidize or otherwise assist the dealer in making
the upgrades or alterations.
(g) The net cost of any furnishings the manufacturer required
that a terminated new motor vehicle dealer purchase in the 2-year
period preceding the effective date of the termination of the
dealer agreement. In determining fair and reasonable compensation
under this subdivision, the manufacturer may offset any amounts
paid by the manufacturer to subsidize or otherwise assist the
dealer in purchasing those furnishings.
(2)
Upon the termination, cancellation, nonrenewal, or
discontinuance
of a dealer agreement, In
addition to the payment of
compensation under subsection (1), subject to section 12, if a
manufacturer terminates, cancels, does not renew, or discontinues a
dealer agreement for any reason other than a reason described in
section
10(c), the manufacturer or
distributor shall also pay to
the
new motor vehicle dealer a sum in
equal monthly installments an
amount
equal to the current, fair
rental value of his or her its
established place of business for a period of 1 year from the
effective date of termination, cancellation, nonrenewal, or
discontinuance, or the remainder of any lease, whichever is less.
However,
the payment required by this subsection shall not apply to
any
termination, cancellation, nonrenewal, or discontinuance made
pursuant
to section 10(c).This
obligation is subject to both of the
following:
(a) (3)
The requirement of paying an
annual obligation to pay
a
new motor vehicle dealer fair rental
value pursuant to under this
subsection
(2) shall apply applies only to the extent that the new
motor vehicle dealer's established place of business is used for
performance of sales and service obligations under the
manufacturer's
or distributor's dealer agreement.
(b) (4)
In the event that termination is by the dealer, If the
new motor vehicle dealer terminates a dealer agreement, the
manufacturer
is only required to make the payment
required by under
this
subsection (2) is required only if
the new motor vehicle
dealer
makes available to the manufacturer or distributor and the
manufacturer accepts use and possession of the premises free of any
claims of others for the 1-year period, except for use by the
dealer for closing his or her business.
(5)
In the event that termination is by the dealer, the
payment
required by subsection (2) shall not exceed $20,000.00
unless
provided otherwise by contract entered into between the
parties.
(3) In addition to the payment of compensation under
subsection (1), subject to section 12, if a manufacturer
terminates, cancels, does not renew, or discontinues a dealer
agreement for any of the following reasons, the manufacturer shall
pay the new motor vehicle dealer fair and reasonable compensation
for the goodwill of the dealer:
(a) The ownership, operation, or control of all or part of the
business of the manufacturer changes, whether by sale or transfer
of assets, corporate stock, or other equity interest, assignment,
merger, consolidation, combination, joint venture, redemption, or
operation of law.
(b) All or part of the business operations of the manufacturer
are terminated or suspended or cease.
(c) The manufacturer discontinues a line make.
(4) (6)
This section shall does not
relieve a new motor
vehicle dealer, lessor, or other owner of an established place of
business from the obligation of mitigating damages.
Sec.
12. (1) Compensation A
manufacturer shall pay the
compensation
for new motor vehicle inventory under
section 11(1)(a)
shall
be paid, if possible, within 30 days after the effective date
of
the termination, cancellation, nonrenewal, or discontinuance,
provided
that the new motor vehicle dealer has met all reasonable
requirements
of the dealer agreement with respect to the return of
the
new motor vehicle inventory. Compensation for and items
of
personal
property required by under
section 11(1)(b), 11(1)(c), and
11(1)(d)
shall be paid 11(1) within 90 60 days after the effective
date of the termination, cancellation, nonrenewal, or
discontinuance, provided that the new motor vehicle dealer has met
all reasonable requirements of the dealer agreement with respect to
the return of the new motor vehicle inventory and repurchased
personal property, including providing clear title to the
repurchased personal property.
(2) All of the following apply in determining the amount of
fair and reasonable compensation under section 11(1):
(a)
Fair and reasonable compensation pursuant
to under section
11(1)(a) shall be not less than the new motor vehicle dealer's net
acquisition cost.
(b) Fair and reasonable compensation pursuant to for supplies
and
parts inventory for purposes of section
11(1)(b) shall be is
the
amount stated in the manufacturer's or distributor's current
parts price list.
(c) Fair and reasonable compensation pursuant to for purposes
of
section 11(1)(c), and
11(1)(d) shall be (d), and (e)
is the fair
market value of the personal property described in those
subdivisions.
(3) All of the following apply to the determination of fair
rental value of a new motor vehicle dealer's established place of
business under section 11(2):
(a) The manufacturer and dealer shall make a good faith effort
to agree to the fair rental value of the premises, taking into
consideration the adequacy and desirability of the premises for
dealership operations and the fair market value of the premises.
(b) If the manufacturer and the new motor vehicle dealer agree
on the fair rental value within 30 days after the effective date of
the termination, cancellation, nonrenewal, or discontinuance of the
dealer agreement, that valuation is conclusive and binding on the
manufacturer and the new motor vehicle dealer.
(c) If the manufacturer and dealer cannot agree to the fair
rental value of the premises under subdivision (a) within 30 days
after the effective date of the termination, cancellation,
nonrenewal, or discontinuance of the dealer agreement, the fair
rental value of the premises shall be determined by 3 qualified
real estate appraisers. All of the following apply to the
determination of fair rental value under this subdivision:
(i) The dealer and manufacturer shall each select a qualified
real estate appraiser within 60 days after the effective date of
the termination, cancellation, nonrenewal, or discontinuance of the
dealer agreement, and those appraisers shall select a third
qualified real estate appraiser.
(ii) Within 150 days after the effective date of the
termination, cancellation, nonrenewal, or discontinuance of the
dealer agreement, each of the 3 appraisers selected under
subparagraph (i) shall complete an appraisal of the fair rental
value of the premises, and the median appraisal shall be the fair
rental value of the premises for purposes of this subsection.
(iii) The manufacturer and the dealer are each responsible for
50% of the costs of the appraisals under this subdivision.
(4) All of the following apply in determining the fair and
reasonable compensation for a new motor vehicle dealer's goodwill
under section 11(3):
(a) If a successor manufacturer offers a dealer agreement to a
dealer whose dealer agreement with the manufacturer is terminated,
canceled, not renewed, or discontinued and the terms of the
proposed dealer agreement are substantially similar to the terms
offered by the successor manufacturer to other new motor vehicle
dealers of the same line make, the manufacturer that terminated,
canceled, did not renew, or discontinued the dealer agreement is
not required to pay any compensation under section 11(3) for the
dealer's goodwill.
(b) If subdivision (a) does not apply, the manufacturer and
dealer shall make a good faith effort to agree to fair and
reasonable compensation for the dealer's goodwill, based on the
fair market value of that goodwill on the day before the
termination, cancellation, nonrenewal, or discontinuance of the
dealer agreement.
(c) If the manufacturer and the new motor vehicle dealer agree
on fair and reasonable compensation within 30 days after the
effective date of the termination, cancellation, nonrenewal, or
discontinuance of the dealer agreement, that agreement is
conclusive and binding on the manufacturer and the new motor
vehicle dealer.
(d) If the manufacturer and dealer cannot agree to fair and
reasonable compensation for the dealer's goodwill under subdivision
(b) within 30 days after the effective date of the termination,
cancellation, nonrenewal, or discontinuance of the dealer
agreement, the amount of fair and reasonable compensation for the
dealer's goodwill shall be determined by 3 qualified appraisers.
All of the following apply to the determination of fair and
reasonable compensation under this subdivision:
(i) The dealer and manufacturer shall each select a qualified
appraiser within 60 days after the effective date of the
termination, cancellation, nonrenewal, or discontinuance of the
dealer agreement, and those appraisers shall select a third
qualified appraiser.
(ii) Within 150 days after the effective date of the
termination, cancellation, nonrenewal, or discontinuance of the
dealer agreement, each of the 3 appraisers selected under
subparagraph (i) shall complete an appraisal of the fair market
value of the dealer's goodwill on the day before the termination,
cancellation, nonrenewal, or discontinuance of the dealer
agreement, and the median appraisal of that fair market value shall
be the fair and reasonable compensation for the goodwill for
purposes of this subsection.
(iii) The manufacturer and the dealer are each responsible for
50% of the costs of the appraisals under this subdivision.
(5) (3)
In the event If a payment required
under subsection
(1)
is not made within 90 days as
provided in subsection (1)the
60-
day period described in that subsection, then beginning on the day
after the expiration of that 60-day period, interest shall accrue
thereafter
on all amounts due the new motor
vehicle dealer at a
rate
of 12% 6% per annum.
(6) As used in this section:
(a) "Qualified appraiser" means an independent individual who
is qualified by experience and ability to value the goodwill of a
business.
(b) "Qualified real estate appraiser" means a certified
general real estate appraiser or a state licensed real estate
appraiser, as those terms are defined in section 2601 of the
occupational code, 1980 PA 299, MCL 339.2601.
Sec.
13. A manufacturer , importer, or distributor shall not
require any new motor vehicle dealer in this state to do any of the
following:
(a)
Order , or
accept delivery of any new motor vehicle, or a
part or accessory of a new motor vehicle, equipment, or any other
commodity
not required by law which was that
is not voluntarily
ordered by the new motor vehicle dealer. This section does not
prevent
the manufacturer or distributor from requiring that new
motor vehicle dealers carry a reasonable inventory of models
offered
for sale by the manufacturer. or distributor.
(b) Order or accept delivery of any new motor vehicle with
special features, accessories, or equipment not included in the
list price of the new motor vehicle as publicly advertised by the
manufacturer. or
distributor.
(c) Participate monetarily in any advertising campaign or
contest,
or purchase any promotional materials, display devices, or
display decorations or materials, or pay or assume directly in
connection with the sale of a new motor vehicle any part of the
cost of a refund, rebate, or discount made by or lawfully imposed
by
the manufacturer or distributor to or in favor of a consumer,
unless voluntarily agreed to by the dealer.
(d)
Enter into any agreement with the manufacturer or
distributor
or do any other act prejudicial to
the new motor
vehicle dealer by threatening to terminate a dealer agreement or
any contractual agreement or understanding existing between the
dealer
and the manufacturer. or distributor. Notice in good faith
to any dealer of the dealer's violation of any terms or provisions
of
the dealer agreement shall does
not constitute a violation of
this act.
(e) Change the capital structure of the new motor vehicle
dealership or the means by or through which the dealer finances the
operation of the dealership, if the dealership at all times meets
any reasonable capital standards determined by the manufacturer in
accordance with uniformly applied criteria.
(f) Refrain from participation in the management of,
investment in, or the acquisition of, any other line of new motor
vehicle vehicles
or related products at
or in any of the following:
(i) At a location different from the location used by the
dealer for the sale or service of new motor vehicles or related
products
of the manufacturer, provided that if the
dealer maintains
a reasonable line of credit for each make or line of vehicle,
remains in compliance with reasonable facilities requirements,
remains in substantial compliance with capital requirements, and
makes no change in the principal management of the dealer.
(ii) In facilities at the same location as, but separated from,
the facilities used by the dealer for the sale or service of new
motor vehicles or related products of the manufacturer, if the
dealer maintains a reasonable line of credit for each make or line
of vehicle, remains in compliance with minimum space requirements
and reasonable facilities requirements, remains in substantial
compliance with capital requirements, and does not make a change in
the principal management of the dealer.
(iii) Unless the manufacturer otherwise objects based on other
reasonable business considerations, in the same facilities used by
the dealer for the sale or service of new motor vehicles or related
products of the manufacturer, if the dealer maintains a reasonable
line of credit for each make or line of vehicle, remains in
compliance with reasonable facilities requirements, remains in
substantial compliance with capital requirements, and does not make
a change in the principal management of the dealer. The
manufacturer has the burden of proving reasonable business
considerations for purposes of this subparagraph.
(g) Change the location of the new motor vehicle dealership or
make
any substantial alterations to the dealership premises, where
to
do so would be if changing
the location or making the
alterations is unreasonable.
(h) Prospectively assent to a release, assignment, novation,
waiver,
or estoppel which that would relieve any person from
liability imposed by this act; require that any dealer agreement be
governed by the laws of a state other than this state; or require
referral of any controversy between a new motor vehicle dealer and
a
manufacturer , importer, or distributor to be referred to a
person other than the duly constituted courts of this state, or of
the United States located in this state, if the referral would be
binding
upon on the new motor vehicle dealer. unless
the parties
agree
This subdivision does not
apply to an agreement between the
parties,
made at the time of a controversy, to
refer a the
controversy to a court of the United States located outside this
state
or agree at the time of the an
arbitration to conduct the
arbitration
either within in or outside of
this state. Such a A
provision in a dealer agreement that violates this subdivision is
void and unenforceable.
Sec.
14. (1) A manufacturer , importer, or distributor shall
not do any of the following:
(a) Adopt, change, establish, or implement a plan or system
for the allocation and distribution of new motor vehicles to new
motor vehicle dealers that is arbitrary or capricious or based on
unreasonable sales and service standards, or modify an existing
plan or system that causes the plan or system to be arbitrary or
capricious or based on unreasonable sales and service standards.
(b)
Fail If requested in
writing by a new motor vehicle
dealer,
fail or refuse to advise or disclose to
any new motor
vehicle
dealer having a dealer agreement, upon written request
therefore,
the dealer the basis upon on which new motor vehicles
of
the same line make are allocated or distributed to new motor
vehicle
dealers in the state and the basis upon on which the
current allocation or distribution is being made or will be made to
that new motor vehicle dealer.
(c) Refuse to deliver to a new motor vehicle dealer in
reasonable quantities and within a reasonable time after receipt of
a
the dealer's order, to any new motor vehicle dealer
having a
dealer
agreement for the retail sale of new motor vehicles sold or
distributed
by a manufacturer or distributor any
such new motor
vehicles
as that are covered by such the dealer
agreement and
specifically publicly advertised in the state by the manufacturer
or
distributor to be as available for immediate delivery. However,
the
failure to deliver any motor vehicle shall not be is not
considered a violation of this act if the failure is due to an act
of God, a work stoppage or delay due to a strike or labor
difficulty, a shortage of materials, a lack of manufacturing
capacity, a freight embargo, or other cause over which the
manufacturer
or distributor has no control. If the a manufacturer
or
distributor requires a new motor
vehicle dealer to purchase
essential service tools with a purchase price in the aggregate of
more than $7,500.00 in order to receive a specific model of
vehicle,
the manufacturer or distributor shall upon on written
request provide the dealer with a good faith estimate in writing of
the number of vehicles of that specific model the dealer will be
allocated
during that in the model year in which the dealer is
required
to purchase the tool. is
required to be purchased.
(d)
Increase prices of the
price of a new motor vehicles which
vehicle that the new motor vehicle dealer had ordered, and then
eventually delivered to, the same retail consumer for whom the
vehicle
was ordered, if the order was made prior to before the
dealer's
receipt of the a written official price increase
notification. A sales contract signed by a private retail consumer
and
binding on the dealer shall constitute constitutes evidence of
each
a vehicle order. In the event of manufacturer or
distributor
price reductions or cash rebates, the dealer shall pass on the
amount
of any reduction or rebate received by a the dealer shall be
passed
on to the private retail consumer. by
the dealer. Any price
reduction in excess of $5.00 shall apply to all vehicles in the
dealer's
inventory which that were subject to the price reduction.
A price difference applicable to new model or series motor vehicles
at the time of the introduction of the new models or the series
shall
not be is not considered a price increase or price decrease.
This
subdivision shall does not apply to price changes caused by
any of the following:
(i) The addition to a motor vehicle of required or optional
equipment pursuant to state or federal law.
(ii) In the case of foreign made vehicles or components,
revaluation of the United States dollar.
(iii) Any increase in transportation charges due to an increase
in
rates charged by a common carrier and transporters or
transporter.
(e)
Offer any refunds or other types of inducements of the
following
to any dealer for the purchase of
new motor vehicles of a
certain
new motor vehicle dealer of a
specific line make to be sold
to
this state or any political subdivision of this state without
making
the same offer available upon request to all other new motor
vehicle
dealers of the same line make: .
(i) Any specific model or series of new motor vehicles
manufactured for that line make.
(ii) Any incentives, rebates, bonuses, promotional items, or
other similar benefits payable to the new motor vehicle dealer for
selling new motor vehicles or purchasing new motor vehicles from
the manufacturer.
(iii) Any consumer rebates, vehicle price reductions, or
interest rate reductions or other changes to finance terms that
benefit the consumer.
(iv) Any program that provides marketing and sales assistance
to new motor vehicle dealers, including, but not limited to,
internet listings, sales leads, marketing programs, and dealer
recognition programs.
(f) Release to an outside party, except under subpoena or in
an administrative or judicial proceeding to which the new motor
vehicle
dealer or the manufacturer or distributor are parties, any
business,
financial, or personal information which that has been
provided
by the dealer to the manufacturer, or distributor, unless
the
new motor vehicle dealer gives his or her written consent.
(g) Deny a new motor vehicle dealer the right to associate
with another new motor vehicle dealer for any lawful purpose.
(h) Directly or indirectly own, operate, or control a new
motor vehicle dealer, including, but not limited to, a new motor
vehicle dealer engaged primarily in performing warranty repair
services on motor vehicles pursuant to the manufacturer's warranty,
or a used motor vehicle dealer. This subdivision does not apply to
any of the following:
(i) The ownership, operation, or control by a
manufacturer or
distributor
of a new motor vehicle dealer for a
period of not more
than 24 months during the transition from 1 owner or operator to
another. The circuit court may extend the 24-month time period for
an additional 12 months upon receipt of an application from a
manufacturer
or distributor and a showing of good cause.
(ii) The ownership, operation, or control of a new motor
vehicle
dealer or a used motor vehicle
dealer by a manufacturer or
distributor
while it is being sold under a bona
fide contract or
purchase option to the operator of the new motor vehicle dealer or
the used motor vehicle dealer.
(iii) The direct or indirect ownership by a manufacturer of an
entity that owns, operates, or controls a new motor vehicle dealer
of the same line make franchised by the manufacturer, if all of the
following conditions are met:
(A) As of May 1, 2000, the manufacturer for a period of not
less than 12 months has continuously owned, directly or indirectly,
1 or more new motor vehicle dealers in this state.
(B) All of the new motor vehicle dealers selling the
manufacturer's motor vehicles in this state trade exclusively in
the manufacturer's line make.
(C) As of January 1, 2000, not fewer than 1/2 of the new motor
vehicle dealers of the line make within this state own and operate
2 or more new motor vehicle dealer facilities in the geographic
territory or area covered by the franchise agreement with the
manufacturer.
(D) For a manufacturer or any entity in which the manufacturer
has more than a 45% ownership interest, the manufacturer or entity
has not acquired, operated, or controlled a new motor vehicle
dealer that the manufacturer did not directly or indirectly own as
of May 1, 2000.
(iv) The acquisition by a manufacturer of a used motor vehicle
dealer's license for the purpose of selling motor vehicles to
nonretail buyers.
(i) Sell any new motor vehicle directly to a retail customer
other than through its franchised dealers, unless the retail
customer is a nonprofit organization or a federal, state, or local
government or agency. This subdivision does not prohibit a
manufacturer from providing information to a consumer for the
purpose of marketing or facilitating the sale of new motor vehicles
or from establishing a program to sell or offer to sell new motor
vehicles through the manufacturer's new motor vehicle dealers.
(j) Prevent or attempt to prevent by contract or otherwise any
new motor vehicle dealer from changing the executive management of
a
new motor vehicle dealer unless the manufacturer, or distributor,
having the burden of proof, can show that the change of executive
management will result in executive management by a person or
persons who are not of good moral character or who do not meet
reasonable, preexisting, and equitably applied standards of the
manufacturer. or
distributor. If a manufacturer or distributor
rejects a proposed change in the executive management, the
manufacturer
or distributor shall give written notice of its
reasons to the dealer within 60 days after receiving written notice
from the dealer of the proposed change and all related information
reasonably
requested by the manufacturer, or distributor, or the
change
in executive management shall be is considered approved.
(k) Unreasonably withhold consent to the sale, transfer, or
exchange
of the a new motor vehicle
dealership to a qualified buyer
that is capable of being licensed as a new motor vehicle dealer in
this state.
(l) Fail to respond in writing to a request for consent to a
sale, transfer, or exchange of a new motor vehicle dealership
within
60 days after receipt of receiving
a written application
from the new motor vehicle dealer on the forms generally utilized
by
the manufacturer or distributor for such that purpose
and
containing
the information required therein in that application.
Failure
to respond to the a request for
consent within the 60 days
shall
be 60-day period is considered consent to the sale, transfer,
or exchange.
(m) Unfairly prevent a new motor vehicle dealer that sells,
transfers, or exchanges a new motor vehicle dealership from
receiving reasonable compensation for the value of the new motor
vehicle dealership.
(n) Unless the manufacturer enters into a written agreement
with the new motor vehicle dealer that clearly states the amount of
the incentive payments and the period of time during which the
incentive payments are paid, offer incentive payments to a new
motor vehicle dealer in consideration for a new motor vehicle
dealer's promise to do any of the following:
(i) Make material alterations to any facilities at the dealer's
place of business.
(ii) Construct new facilities for the conduct of the business
of the dealership.
(o) Require unreasonable improvements to a facility as a
condition to entering into or renewing a dealer agreement.
(p) Authorize a motor vehicle service and repair facility to
perform motor vehicle warranty repairs and recall work, unless the
work meets any of the following:
(i) Is required for emergency service of a vehicle.
(ii) Is work performed at a service center owned or operated by
a manufacturer on manufacturer-owned vehicle.
(iii) Is work performed by employees of a fleet operator on its
own vehicles.
(q) Own a motor vehicle service and repair facility, except
that a manufacturer may own a service and repair facility for the
repair of manufacturer-owned vehicles.
(r) Engage in conduct that meets all of the following:
(i) Materially affects a new motor vehicle dealer.
(ii) Is capricious, is not in good faith, or is unconscionable.
(iii) Causes damage to a new motor vehicle dealer.
(s) Impose unreasonable standards of performance on a new
motor vehicle dealer or require, attempt to require, coerce, or
attempt to coerce a new motor vehicle dealer to adhere to
performance standards that are not applied uniformly to other
similarly situated new motor vehicle dealers.
(t) Use or consider the performance of a new motor vehicle
dealer in selling the manufacturer's vehicles or the new motor
vehicle dealer's ability to satisfy any minimum sales or market
share quota or responsibility relating to the sale of the new motor
vehicles in determining any of the following:
(i) The new motor vehicle dealer's eligibility to purchase
program, certified, or other used motor vehicles from the
manufacturer.
(ii) The volume, type, or model of program, certified, or other
used motor vehicles that a new motor vehicle dealer is eligible to
purchase from the manufacturer.
(iii) The price of any program, certified, or other used motor
vehicle that the new motor vehicle dealer purchases from the
manufacturer.
(iv) The availability or amount of any discount, credit,
rebate, or sales incentive that the new motor vehicle dealer is
eligible to receive from the manufacturer in connection with any
program, certified, or other used motor vehicle offered for sale by
the manufacturer.
(u) Require that a new motor vehicle dealer provide its
customer lists or service files to the manufacturer, unless
necessary for the sale and delivery of a new motor vehicle to a
consumer, to validate and pay consumer or dealer incentives, or in
connection with the submission of a claim to the manufacturer for
services supplied by the new motor vehicle dealer for any claim for
warranty repairs. This section does not limit a manufacturer's
authority to require or use customer information to satisfy any
safety or recall obligation.
(v) Establish a performance standard or program for measuring
new motor vehicle dealer performance that may have a material
impact on a new motor vehicle dealer that is not fair, reasonable,
and equitable. For purposes of this subdivision, all of the
following apply if a manufacturer does not provide a complete
program description explaining the performance standard or program
details to a new motor vehicle dealer on or before the beginning of
the program:
(i) Within 10 days after receiving a request from the new motor
vehicle dealer, the manufacturer shall provide the new motor
vehicle dealer with a written description of how a performance
standard or program is designed.
(ii) Within 30 days after receiving a request from the new
motor vehicle dealer, the manufacturer shall provide information
relating to how the performance standard or program applies to the
new motor vehicle dealer.
(w) If a new motor vehicle dealer sold or leased a new motor
vehicle to a customer that exported the motor vehicle to a foreign
country or resold the motor vehicle, refuse to allocate, sell, or
deliver new motor vehicles to the dealer; charge back or withhold
payments or other things of value for which the dealer is otherwise
eligible under a sales promotion, program, or contest; prevent a
new motor vehicle dealer from participating in any sales promotion,
program, or contest; or take or threaten to take any other adverse
action against a new motor vehicle dealer, including, but not
limited to, reducing vehicle allocations or terminating or
threatening to terminate a dealer agreement, unless the
manufacturer proves that the new motor vehicle dealer knew or
reasonably should have known that the customer intended to export
or resell the motor vehicle. In an action by a new motor vehicle
dealer for a violation of this subdivision, there is a rebuttable
presumption that a new motor vehicle dealer did not know or should
not reasonably have known of its customer's intent to export or
resell a motor vehicle if the vehicle was titled in the United
States, and the manufacturer bears the burden of rebutting that
presumption.
(x) If a new motor vehicle dealer is a party to a dealer
agreement on the effective date of the amendatory act that added
this subdivision, and the dealer agreement provides for sale of a
competing line make of new motor vehicles at the same place of
business where the manufacturer's line make is sold, require or
otherwise coerce the new motor vehicle dealer to remove the sale or
servicing of new motor vehicles of that competing line make from
that place of business.
(2)
A manufacturer, or distributor, either directly or through
any subsidiary, shall not terminate, cancel, fail to renew, or
discontinue
any lease of the a new motor vehicle dealer's
established place of business except for a material breach of the
lease.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 95th Legislature are
enacted into law:
(a) Senate Bill No. 1308.
(b) Senate Bill No. 1309.
(c) House Bill No. 6099.