SF 2663

3rd Engrossment - 86th Legislature (2009 - 2010) Posted on 04/06/2010 04:08pm

A bill for an act
relating to commerce; regulating motor vehicle sales and distribution; amending
Minnesota Statutes 2008, sections 80E.03, by adding a subdivision; 80E.13;
80E.14, by adding a subdivision; Minnesota Statutes 2009 Supplement, sections
80E.12; 80E.135; 80E.14, subdivision 3.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 80E.03, is amended by adding a
subdivision to read:

new text begin Subd. 10b. new text end

new text begin Area of sales effectiveness. new text end

new text begin "Area of sales effectiveness" means
a geographic area designated in a franchise agreement or related document where a
new motor vehicle dealer is responsible for effectively selling, servicing, and otherwise
representing the products of the manufacturer, distributor, or factory branch.
new text end

Sec. 2.

Minnesota Statutes 2009 Supplement, section 80E.12, is amended to read:

80E.12 UNLAWFUL ACTS BY MANUFACTURERS, DISTRIBUTORS, OR
FACTORY BRANCHES.

It shall be unlawful for any manufacturer, distributor, or factory branch to require a
new motor vehicle dealer to do any of the following:

(a) order or accept delivery of any new motor vehicle, part or accessory thereof,
equipment, or any other commodity not required by law which has not been voluntarily
ordered by the new motor vehicle dealer, provided that this paragraph does not modify
or supersede reasonable provisions of the franchise requiring the dealer to market a
representative line of the new motor vehicles the manufacturer or distributor is publicly
advertising;

(b) order or accept delivery of any new motor vehicle, part or accessory thereof,
equipment, or any other commodity not required by law in order for the dealer to obtain
delivery of any other motor vehicle ordered by the dealer;

(c) order or accept delivery of any new motor vehicle with special features,
accessories, or equipment not included in the list price of the motor vehicles as publicly
advertised by the manufacturer or distributor;

(d) participate monetarily in an advertising campaign or contest, or to purchase any
promotional materials, showroom, or other display decorations or materials at the expense
of the new motor vehicle dealer;

(e) enter into any agreement with the manufacturer or to do any other act prejudicial
to the new motor vehicle dealer by threatening to cancel a franchise or any contractual
agreement existing between the dealer and the manufacturer. Notice in good faith to any
dealer of the dealer's violation of any terms of the franchise agreement shall not constitute
a violation of sections 80E.01 to 80E.17;

(f) change the capital structure of the new motor vehicle dealer or the means by or
through which the dealer finances the operation of the dealership; provided, that the new
motor vehicle dealer at all times meets any reasonable capital standards agreed to by the
dealer; and also provided, that no change in the capital structure shall cause a change in
the principal management or have the effect of a sale of the franchise without the consent
of the manufacturer or distributor as provided in section 80E.13, paragraph (j);

(g) prevent or attempt to prevent, by contract or otherwise, any motor vehicle dealer
from changing the executive management control of the new motor vehicle dealer unless
the franchisor proves that the change of executive management will result in executive
management control by a person who is not of good moral character or who does not meet
the franchisor's existing reasonable capital standards and, with consideration given to the
volume of sales and services of the new motor vehicle dealer, uniformly applied minimum
business experience standards in the market area; provided, that where the manufacturer,
distributor, or factory branch rejects a proposed change in executive management control,
the manufacturer, distributor, or factory branch shall give written notice of its reasons
to the dealer;

(h) refrain from participation in the management of, investment in, or the acquisition
of, any other line of new motor vehicle or related products or establishment of another
make or line of new motor vehicles in the same dealership facilities as those of the
manufacturer; provided, however, that this clause does not apply unless the new motor
vehicle dealer maintains a reasonable line of credit for each make or line of new motor
vehicle, and that the new motor vehicle dealer remains in substantial compliance with the
terms and conditions of the franchise and with any reasonable facilities requirements of
the manufacturer and that the acquisition or addition is not unreasonable in light of all
existing circumstances; provided further that if a manufacturer determines to deny a
dealer's request for a change described in this paragraph, such denial must be in writing,
must offer an analysis of the grounds for the denial addressing the criteria contained in this
paragraph, and must be delivered to the new motor vehicle dealer within 60 days after
the manufacturer receives the completed application or documents customarily used by
the manufacturer for dealer actions described in this paragraph. If a denial that meets the
requirements of this paragraph is not sent within this period, the manufacturer shall be
deemed to have given its consent to the proposed change deleted text begin ; deleted text end new text begin .
new text end

new text begin For purposes of this section and sections 80E.07, subdivision 1, paragraph (c), and 80E.14,
subdivision 4, reasonable facilities requirements shall not include a requirement that
a dealer establish or maintain exclusive facilities for the manufacturer of a line make
unless determined to be reasonable in light of all existing circumstances or the dealer
and the manufacturer voluntarily agree to such a requirement and separate and adequate
consideration was offered and accepted;
new text end

(i) during the course of the agreement, change the location of the new motor vehicle
dealership or make any substantial alterations to the dealership premises during the course
of the agreement, when to do so would be unreasonable new text begin or if the manufacturer fails to
provide the dealer 180 days' prior written notice of a required change in location or
substantial premises alteration new text end ; or

(j) prospectively assent to a release, assignment, novation, waiver, or estoppel
whereby a dealer relinquishes any rights under sections 80E.01 to 80E.17, or which would
relieve any person from liability imposed by sections 80E.01 to 80E.17 or to require
any controversy between a new motor vehicle dealer and a manufacturer, distributor, or
factory branch to be referred to any person or tribunal other than the duly constituted
courts of this state or the United States, if the referral would be binding upon the new
motor vehicle dealer.

Sec. 3.

Minnesota Statutes 2008, section 80E.13, is amended to read:

80E.13 UNFAIR PRACTICES BY MANUFACTURERS, DISTRIBUTORS,
FACTORY BRANCHES.

It is unlawful and an unfair practice for a manufacturer, distributor, or factory branch
to engage in any of the following practices:

(a) delay, refuse, or fail to deliver new motor vehicles or new motor vehicle parts or
accessories in reasonable time and in reasonable quantity relative to the new motor vehicle
dealer's facilities and sales potential in the dealer's relevant market area, after having
accepted an order from a new motor vehicle dealer having a franchise for the retail sale of
any new motor vehicle sold or distributed by the manufacturer or distributor, if the new
motor vehicle or new motor vehicle parts or accessories are publicly advertised as being
available for delivery or actually being delivered. This clause is not violated, however, if
the failure is caused by acts or causes beyond the control of the manufacturer;

(b) refuse to disclose to any new motor vehicle dealer handling the same line make,
the manner and mode of distribution of that line make within the relevant market area;

(c) obtain money, goods, service, or any other benefit from any other person with
whom the dealer does business, on account of, or in relation to, the transaction between
the dealer and the other person, other than for compensation for services rendered, unless
the benefit is promptly accounted for, and transmitted to, the new motor vehicle dealer;

(d) increase prices of new motor vehicles which the new motor vehicle dealer had
ordered for private retail consumers prior to the dealer's receiving the written official price
increase notification. A sales contract signed by a private retail consumer shall constitute
evidence of each order if the vehicle is in fact delivered to that customer. In the event of
manufacturer price reductions, the amount of any reduction received by a dealer shall be
passed on to the private retail consumer by the dealer if the retail price was negotiated on
the basis of the previous higher price to the dealer;

(e) offer any refunds or other types of inducements to any new motor vehicle dealer
for the purchase of new motor vehicles of a certain line make without making the same
offer to all other new motor vehicle dealers in the same line make within deleted text begin the relevant
market area deleted text end new text begin geographic areas reasonably determined by the manufacturer new text end ;

(f) release to any outside party, except under subpoena or in an administrative or
judicial proceeding involving the manufacturer or dealer, any business, financial, or
personal information which may be provided by the dealer to the manufacturer, without
the express written consent of the dealer or unless pertinent to judicial or governmental
administrative proceedings or to arbitration proceedings of any kind;

(g) deny any new motor vehicle dealer the right of free association with any other
new motor vehicle dealer for any lawful purpose;

(h) unfairly discriminate among its new motor vehicle dealers with respect to
warranty reimbursement or authority granted its new vehicle dealers to make warranty
adjustments with retail customers;

(i) compete with a new motor vehicle dealer in the same line make operating under
an agreement or franchise from the same manufacturer, distributor, or factory branch. A
manufacturer, distributor, or factory branch is considered to be competing when it has
an ownership interest, other than a passive interest held for investment purposes, in a
dealership of its line make located within the state. A manufacturer, distributor, or factory
branch shall not, however, be deemed to be competing deleted text begin :
deleted text end

deleted text begin (1) deleted text end when operating a dealership, either temporarily or for a reasonable period, which
is for sale to any qualified independent person at a fair and reasonable price, or when
involved in a bona fide relationship in which an independent person has made a significant
investment subject to loss in the dealership and can reasonably expect to acquire full
ownership and full management and operational control of the dealership within a
reasonable time on reasonable terms and conditions; deleted text begin or
deleted text end

deleted text begin (2) if it has an existing direct or indirect ownership interest in a new motor vehicle
dealer in this state as of January 1, 2000, and has no more than four franchised dealers in
this state. A manufacturer, distributor, or factory branch described in this clause that has
unaffiliated dealers of the same line make in this state may acquire an interest in existing
dealers of that line make but it may not establish any new dealership in which it would
own an interest or approve an additional location for the sale of new motor vehicles by
an affiliated dealership. A manufacturer, distributor, or factory branch described in this
clause is permitted to alter its ownership interest in a new motor vehicle dealer;
deleted text end

(j) prevent a new motor vehicle dealer from transferring or assigning a new motor
vehicle dealership to a qualified transferee. There shall be no transfer, assignment of the
franchise, or major change in the executive management of the dealership, except as is
otherwise provided in sections 80E.01 to 80E.17, without consent of the manufacturer,
which shall not be withheld without good cause. In determining whether good cause exists
for withholding consent to a transfer or assignment, the manufacturer, distributor, factory
branch, or importer has the burden of proving that the transferee is a person who is not
of good moral character or does not meet the franchisor's existing and reasonable capital
standards and, considering the volume of sales and service of the new motor vehicle
dealer, reasonable business experience standards in the market area. Denial of the request
must be in writing and delivered to the new motor vehicle dealer within 60 days after the
manufacturer receives the completed application customarily used by the manufacturer,
distributor, factory branch, or importer for dealer appointments. If a denial is not sent
within this period, the manufacturer shall be deemed to have given its consent to the
proposed transfer or change. In the event of a proposed sale or transfer of a franchise, the
manufacturer, distributor, factory branch, or importer shall be permitted to exercise a right
of first refusal to acquire the franchisee's assets or ownership if:

(1) the franchise agreement permits the manufacturer, distributor, factory branch, or
importer to exercise a right of first refusal to acquire the franchisee's assets or ownership
in the event of a proposed sale or transfer;

(2) the proposed transfer of the dealership or its assets is of more than 50 percent of
the ownership or assets;

(3) the manufacturer, distributor, factory branch, or importer notifies the dealer in
writing within 60 days of its receipt of the complete written proposal for the proposed sale
or transfer on forms generally utilized by the manufacturer, distributor, factory branch,
or importer for such purposes and containing the information required therein and all
documents and agreements relating to the proposed sale or transfer;

(4) the exercise of the right of first refusal will result in the dealer and dealer's
owners receiving the same or greater consideration with equivalent terms of sale as is
provided in the documents and agreements submitted to the manufacturer, distributor,
factory branch, or importer under clause (3);

(5) the proposed change of 50 percent or more of the ownership or of the dealership
assets does not involve the transfer or sale of assets or the transfer or issuance of stock
by the dealer or one or more dealer owners to a family member, including a spouse,
child, stepchild, grandchild, spouse of a child or grandchild, brother, sister, or parent of
the dealer owner; to a manager who has been employed in the dealership for at least four
years and is otherwise qualified as a dealer operator; or to a partnership or corporation
owned and controlled by one or more of such persons; and

(6) the manufacturer, distributor, factory branch, or importer agrees to pay the
reasonable expenses, including reasonable attorney fees, which do not exceed the usual
customary and reasonable fees charged for similar work done for other clients incurred
by the proposed new owner and transferee before the manufacturer, distributor, factory
branch, or importer exercises its right of first refusal, in negotiating and implementing the
contract for the proposed change of ownership or transfer of dealership assets. However,
payment of such expenses and attorney fees shall not be required if the dealer has not
submitted or caused to be submitted an accounting of those expenses within 20 days after
the dealer's receipt of the manufacturer, distributor, factory branch, or importer's written
request for such an accounting. The manufacturer, distributor, factory branch, or importer
may request such an accounting before exercising its right of first refusal. The obligation
created under this clause is enforceable by the transferee;

(k) threaten to modify or replace or modify or replace a franchise with a succeeding
franchise that would adversely alter the rights or obligations of a new motor vehicle dealer
under an existing franchise or that substantially impairs the sales or service obligations or
investments of the motor vehicle dealer;

(l) unreasonably deny the right to acquire factory program vehicles to any dealer
holding a valid franchise from the manufacturer to sell the same line make of vehicles,
provided that the manufacturer may impose reasonable restrictions and limitations on the
purchase or resale of program vehicles to be applied equitably to all of its franchised
dealers. For the purposes of this paragraph, "factory program vehicle" has the meaning
given the term in section 80E.06, subdivision 2;

(m) fail or refuse to offer to its same line make franchised dealers all models
manufactured for that line make, other than alternative fuel vehicles as defined in section
216C.01, subdivision 1b. Failure to offer a model is not a violation of this section if
the failure is not arbitrary and is due to a lack of manufacturing capacity, a strike, labor
difficulty, or other cause over which the manufacturer, distributor, or factory branch has
no control;

(n) require a dealer to pay an extra fee, or remodel, renovate, or recondition the
dealer's existing facilities, or purchase unreasonable advertising displays, training, tools,
or other materials, or to require the dealer to establish exclusive facilities or dedicated
personnel as a prerequisite to receiving a model or a series of vehicles deleted text begin . deleted text end new text begin ;
new text end

new text begin (o) require a dealer to adhere to performance standards that are not applied uniformly
to other similarly situated dealers;
new text end

new text begin A performance standard, sales objective, or program for measuring dealership performance
that may have a material effect on a dealer, including the dealer's right to payment under
any incentive or reimbursement program, and the application of the standard or program
by a manufacturer, distributor, or factory branch must be fair, reasonable, equitable, and
based on accurate information.
new text end

new text begin A manufacturer, distributor, or factory branch has the burden of proving that the
performance standard, sales objective, or program for measuring dealership performance
is fair and reasonable under this subdivision;
new text end

new text begin (p) unreasonably reduce a dealer's area of sales effectiveness without giving at
least 90 days' notice of the proposed reduction. The change may not take effect if the
dealer commences a civil action to determine whether there is good cause for the change
within the 90 days' notice period. The burden of proof in such an action shall be on the
manufacturer or distributor.
new text end

Sec. 4.

Minnesota Statutes 2009 Supplement, section 80E.135, is amended to read:

80E.135 WAIVERS AND MODIFICATIONS PROHIBITED.

Subdivision 1.

Prohibition.

No manufacturer, distributor, or factory branch shall,
before entering into a franchise with a new motor vehicle dealer or during the franchise
term, use any written instrument, agreement, or waiver, to attempt to nullify or modify
any provision of this chapter deleted text begin , restrict a dealer from participation in the management of,
investment in, or the acquisition or establishment of any other line of new motor vehicle
or related product as provided in section 80E.12, paragraph (h), deleted text end or prevent a new motor
vehicle dealer from bringing an action in a particular forum otherwise available under law.
These instruments, agreements, and waivers are null and void.

new text begin Subd. 1a. new text end

new text begin Site control agreements. new text end

new text begin No manufacturer, distributor, or factory branch
shall directly or indirectly condition the awarding of a franchise to a prospective new
motor vehicle dealer, the addition of a line make or franchise to an existing dealer, the
renewal of a franchise of an existing dealer, the approval of the relocation of an existing
dealer's facility, or the approval of the sale or transfer of the ownership of a franchise on
the willingness of a dealer, proposed new dealer, or owner of an interest in the dealership
facility to enter into a site control agreement or exclusive use agreement. For purposes of
this section, the terms "site control agreement" and "exclusive use agreement" include
any agreement that has the effect of either:
new text end

new text begin (1) requiring that the dealer establish or maintain exclusive dealership facilities; or
new text end

new text begin (2) restricting the ability of the dealer, or the ability of the dealer's lessor in the
event the dealership facility is being leased, to transfer, sell, lease, or change the use of
the dealership premises, whether by sublease, lease, collateral pledge of lease, right of
first refusal to purchase or lease the dealership facilities, option to purchase the dealership
facilities, option to lease the dealership facilities, or other similar agreement, regardless
of the parties to the agreement.
new text end

new text begin Any provision contained in any agreement that is inconsistent with the provisions of
this subdivision is voidable at the election of the affected dealer or owner of an interest
in the dealership facility. This subdivision does not limit the right of a manufacturer,
distributor, factory branch, or importer to exercise a right of first refusal under section
80E.13, paragraph (j), to acquire a franchisee's assets or ownership in the event of a
proposed sale or transfer of a franchise.
new text end

Subd. 2.

Applicability.

deleted text begin This section deleted text end new text begin Subdivision 1a new text end does not apply to deleted text begin an deleted text end new text begin a site
control agreement or an exclusive use new text end agreement deleted text begin between a dealer and a manufacturer,
distributor, or factory branch that restricts or prohibits a dealer from participation in the
management of, investment in, or the acquisition or establishment of any other line of new
motor vehicle or related product deleted text end if the agreement:

(1) is voluntarily entered into by the dealer new text begin or the dealer's lessor as described in
subdivision 1a new text end and its execution is not a condition of approval of deleted text begin the deleted text end new text begin a new text end transaction by a
manufacturer, distributor, or factory branch;

(2) clearly and conspicuously discloses that the agreement is voluntary; and

(3) provides for a separate consideration to the dealer new text begin or dealer's lessor new text end .

Sec. 5.

Minnesota Statutes 2009 Supplement, section 80E.14, subdivision 3, is
amended to read:

Subd. 3.

Successor manufacturers.

new text begin (a) new text end If an entity other than the original
manufacturer or distributor of a line-make becomes the manufacturer or distributor for the
line-make and intends to distribute motor vehicles of that line-make in this state, the entity
shall offer those dealers a new franchise agreement for the line-make on substantially
similar terms and conditions.

new text begin (b) For purposes of this subdivision, the following definitions apply:
new text end

new text begin (1) "successor manufacturer" means a motor vehicle manufacturer, distributor, or
factory branch that, on or after January 1, 2009, acquires, succeeds to, or assumes any part
of the business of another manufacturer, referred to as the "predecessor manufacturer," as
the result of a court-approved sale;
new text end

new text begin (2) "relevant market area" is the area within a ten-mile radius around the site of the
previous franchisee's dealership facility; and
new text end

new text begin (3) "former franchisee" is a new motor vehicle dealer that was party to a franchise
agreement with a predecessor manufacturer and that has either:
new text end

new text begin (i) entered into a termination agreement or deferred termination agreement with a
predecessor or successor manufacturer related to the franchise; or
new text end

new text begin (ii) has had the franchise canceled, terminated, nonrenewed, noncontinued, rejected,
nonassumed, or otherwise ended by a predecessor or successor manufacturer.
new text end

new text begin (c) For a period of three years from the date that a former franchisee was terminated,
it shall be unlawful for the successor manufacturer to enter into a same line make franchise
with any person or to permit the relocation of any existing same line make franchise, for
a line make of the predecessor manufacturer that would be located or relocated within
the relevant market area without first offering the additional or relocated franchise to the
former franchisee, or the designated successor of such former franchisee in the event the
former franchisee is deceased or disabled, at no cost and without any requirements or
restrictions other than those imposed generally on the manufacturer's other franchisees at
that time, unless one of the following applies:
new text end

new text begin (1) as a result of the former franchisee's cancellation, termination, noncontinuance,
or nonrenewal of the franchise, the predecessor manufacturer had consolidated the line
make with another of its line makes for which the predecessor manufacturer had a
franchisee with a then existing dealership facility located within that relevant market area;
new text end

new text begin (2) the successor manufacturer has paid the former franchisee, or the designated
successor of such former franchisee in the event the former franchisee is deceased or
disabled, all amounts provided in section 80E.09; or
new text end

new text begin (3) the successor manufacturer proves that the former franchisee, or the designated
successor of such former franchisee in the event the former franchisee is deceased or
disabled, by reason of lack of training, lack of prior experience, poor past performance,
lack of financial ability, or poor character, is unfit to own or manage the dealership
pursuant to the successor manufacturer's reasonable requirements for appointment as a
dealer. A successor manufacturer who seeks to assert that a former franchisee is unfit to
own or manage the dealership shall have the burden of proving lack of fitness in any action
to enforce the provisions of this subdivision.
new text end

Sec. 6.

Minnesota Statutes 2008, section 80E.14, is amended by adding a subdivision
to read:

new text begin Subd. 4. new text end

new text begin Consolidations. new text end

new text begin A manufacturer shall not unreasonably deny the request
of two or more new motor vehicle dealers who hold franchises representing different line
makes of the same manufacturer to consolidate the dealers' ownership and facilities,
provided that the resulting new motor vehicle dealer remains in substantial compliance
with reasonable capital, credit, and facilities' requirements of the manufacturer, and
provided further that the existing location of the dealership holding the franchise or
franchises to be relocated is the nearest of that line make to the resulting consolidated
facility, and that the resulting facility is not within a radius of ten miles of another dealer
of any of the same line makes.
new text end

Sec. 7. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 7 are effective the day following final enactment.
new text end