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1 | | AN ACT concerning business.
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2 | | Be it enacted by the People of the State of Illinois, |
3 | | represented in the General Assembly:
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4 | | Section 5. The Motor Vehicle Franchise Act is amended by |
5 | | changing Section 4 as follows:
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6 | | (815 ILCS 710/4) (from Ch. 121 1/2, par. 754)
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7 | | Sec. 4. Unfair competition and practices.
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8 | | (a) The unfair methods of competition and unfair and |
9 | | deceptive acts or
practices listed in this Section are hereby |
10 | | declared to be unlawful. In
construing the provisions of this |
11 | | Section, the courts may be guided by the
interpretations of the |
12 | | Federal Trade Commission Act (15 U.S.C. 45 et
seq.), as from |
13 | | time to time amended.
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14 | | (b) It shall be deemed a violation for any manufacturer, |
15 | | factory branch,
factory representative, distributor or |
16 | | wholesaler, distributor branch,
distributor representative or |
17 | | motor vehicle dealer to engage in any action
with respect to a |
18 | | franchise which is arbitrary, in bad faith or
unconscionable |
19 | | and which causes damage to any of the parties or to the public.
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20 | | (c) It shall be deemed a violation for a manufacturer, a |
21 | | distributor,
a wholesaler, a distributor branch or division, a |
22 | | factory branch or division,
or a wholesale branch or division, |
23 | | or officer, agent or other representative
thereof, to coerce, |
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1 | | or attempt to coerce, any motor vehicle dealer:
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2 | | (1) to accept, buy or order any motor vehicle or |
3 | | vehicles, appliances,
equipment, parts or accessories |
4 | | therefor, or any other commodity or commodities
or service |
5 | | or services which such motor vehicle dealer has not |
6 | | voluntarily
ordered or requested except items required by |
7 | | applicable local, state or
federal law; or to require a |
8 | | motor vehicle dealer to accept, buy, order or
purchase such |
9 | | items in order to obtain any motor vehicle or vehicles or |
10 | | any
other commodity or commodities which have been ordered |
11 | | or requested by such
motor vehicle dealer;
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12 | | (2) to order or accept delivery of any motor vehicle |
13 | | with special
features, appliances, accessories or |
14 | | equipment not included in the list
price of the motor |
15 | | vehicles as publicly advertised by the manufacturer
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16 | | thereof, except items required by applicable law; or
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17 | | (3) to order for anyone any parts, accessories, |
18 | | equipment, machinery,
tools, appliances or any commodity |
19 | | whatsoever, except items required by
applicable law.
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20 | | (d) It shall be deemed a violation for a manufacturer, a |
21 | | distributor,
a wholesaler, a distributor branch or division, or |
22 | | officer, agent or other
representative thereof:
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23 | | (1) to adopt, change, establish or implement a plan or |
24 | | system for the
allocation and distribution of new motor |
25 | | vehicles to motor vehicle dealers
which is arbitrary or |
26 | | capricious or to modify an existing plan so as to cause
the |
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1 | | same to be arbitrary or capricious;
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2 | | (2) to fail or refuse to advise or disclose to any |
3 | | motor vehicle dealer
having a franchise or selling |
4 | | agreement, upon written request therefor,
the basis upon |
5 | | which new motor vehicles of the same line make are |
6 | | allocated
or distributed to motor vehicle dealers in the |
7 | | State and the basis upon
which the current allocation or |
8 | | distribution is being made or will be made
to such motor |
9 | | vehicle dealer;
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10 | | (3) to refuse to deliver in reasonable quantities and |
11 | | within a reasonable
time after receipt of dealer's order, |
12 | | to any motor vehicle dealer having
a franchise or selling |
13 | | agreement for the retail sale of new motor vehicles
sold or |
14 | | distributed by such manufacturer, distributor, wholesaler, |
15 | | distributor
branch or division, factory branch or division |
16 | | or wholesale branch or division,
any such motor vehicles as |
17 | | are covered by such franchise or selling agreement
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18 | | specifically publicly advertised in the State by such |
19 | | manufacturer,
distributor, wholesaler, distributor branch |
20 | | or division, factory branch or
division, or wholesale |
21 | | branch or division to be available for immediate
delivery. |
22 | | However, the failure to deliver any motor vehicle shall not |
23 | | be
considered a violation of this Act if such failure is |
24 | | due to an act of God,
a work stoppage or delay due to a |
25 | | strike or labor difficulty, a shortage
of materials, a lack |
26 | | of manufacturing capacity, a freight embargo or other
cause |
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1 | | over which the manufacturer, distributor, or wholesaler, |
2 | | or any agent
thereof has no control;
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3 | | (4) to coerce, or attempt to coerce, any motor vehicle |
4 | | dealer to enter
into any agreement with such manufacturer, |
5 | | distributor, wholesaler, distributor
branch or division, |
6 | | factory branch or division, or wholesale branch or
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7 | | division, or officer, agent or other representative |
8 | | thereof, or to do any
other act prejudicial to the dealer |
9 | | by threatening to reduce his allocation
of motor vehicles |
10 | | or cancel any franchise or any selling agreement existing
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11 | | between such manufacturer, distributor, wholesaler, |
12 | | distributor branch or
division, or factory branch or |
13 | | division, or wholesale branch or division,
and the dealer. |
14 | | However, notice in good faith to any motor vehicle dealer
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15 | | of the dealer's violation of any terms or provisions of |
16 | | such franchise or
selling agreement or of any law or |
17 | | regulation applicable to the conduct of
a motor vehicle |
18 | | dealer shall not constitute a violation of this Act;
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19 | | (5) to require a franchisee to participate in an |
20 | | advertising campaign
or contest or any promotional |
21 | | campaign, or to purchase or lease any promotional
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22 | | materials, training materials, show room or other display |
23 | | decorations or
materials at the expense of the franchisee;
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24 | | (6) to cancel or terminate the franchise or selling |
25 | | agreement of a
motor vehicle dealer without good cause and |
26 | | without giving notice as
hereinafter provided; to fail or |
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1 | | refuse to extend the franchise or selling
agreement of a |
2 | | motor vehicle dealer upon its expiration without good cause
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3 | | and without giving notice as hereinafter provided; or, to |
4 | | offer a renewal,
replacement or succeeding franchise or |
5 | | selling agreement containing terms
and provisions the |
6 | | effect of which is to substantially change or modify the
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7 | | sales and service obligations or capital requirements of |
8 | | the motor vehicle
dealer arbitrarily and without good cause |
9 | | and without giving notice as
hereinafter provided |
10 | | notwithstanding any term or provision of a franchise
or |
11 | | selling agreement.
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12 | | (A) If a manufacturer, distributor, wholesaler, |
13 | | distributor branch or
division, factory branch or |
14 | | division or wholesale branch or division intends
to |
15 | | cancel or terminate a franchise or selling agreement or |
16 | | intends not to
extend or renew a franchise or selling |
17 | | agreement on its expiration, it shall
send a letter by |
18 | | certified mail, return
receipt requested, to the |
19 | | affected
franchisee at least
60 days before the |
20 | | effective date of the
proposed action, or not later |
21 | | than 10 days before the proposed action when the
reason |
22 | | for the action is based upon either of the following:
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23 | | (i) the
business operations of the franchisee |
24 | | have been abandoned or
the franchisee has failed to |
25 | | conduct customary sales and service operations
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26 | | during customary business hours for at least 7
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1 | | consecutive business
days unless such closing is |
2 | | due to an act of God, strike or labor
difficulty or |
3 | | other cause over which the franchisee has no |
4 | | control; or
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5 | | (ii) the conviction of or plea of nolo
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6 | | contendere by the motor
vehicle dealer or any |
7 | | operator thereof in a court of competent |
8 | | jurisdiction
to an offense punishable by |
9 | | imprisonment for more than two years.
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10 | | Each notice of proposed action shall include a |
11 | | detailed statement
setting forth the specific grounds |
12 | | for the proposed cancellation, termination,
or refusal |
13 | | to extend or renew and shall state that the dealer has
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14 | | only 30 days from receipt of
the notice to file with |
15 | | the Motor Vehicle Review Board a written protest
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16 | | against the proposed action.
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17 | | (B) If a manufacturer, distributor, wholesaler, |
18 | | distributor branch or
division, factory branch or |
19 | | division or wholesale branch or division intends
to |
20 | | change substantially or modify the sales and service |
21 | | obligations or
capital requirements of a motor vehicle |
22 | | dealer as a condition to extending
or renewing the |
23 | | existing franchise or selling agreement of such motor
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24 | | vehicle dealer, it shall
send a letter by certified |
25 | | mail, return receipt requested, to the affected
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26 | | franchisee at
least 60
days
before the date of |
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1 | | expiration of the franchise or selling agreement. Each
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2 | | notice of proposed action shall include a detailed |
3 | | statement setting forth
the specific grounds for the |
4 | | proposed action
and shall state that the dealer has |
5 | | only 30 days from receipt of
the notice to file with |
6 | | the Motor Vehicle Review Board a written protest
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7 | | against the proposed action.
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8 | | (C) Within 30 days from receipt of the notice under
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9 | | subparagraphs (A) and (B),
the franchisee may file with |
10 | | the Board a written
protest against the proposed |
11 | | action.
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12 | | When the protest has been timely filed, the Board |
13 | | shall enter an
order,
fixing a date (within 60 days of |
14 | | the date of the order), time,
and place of a hearing on |
15 | | the protest required under Sections 12 and 29
of this |
16 | | Act, and send by certified mail, return receipt |
17 | | requested, a copy of
the order to the manufacturer that |
18 | | filed the notice of intention of the
proposed action |
19 | | and to the protesting dealer or franchisee.
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20 | | The manufacturer shall have the burden of proof to |
21 | | establish that good
cause exists to cancel or |
22 | | terminate, or fail to extend or renew the franchise
or
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23 | | selling agreement of a motor vehicle dealer or |
24 | | franchisee, and to change
substantially or modify the |
25 | | sales and service obligations or capital
requirements |
26 | | of a motor vehicle dealer as a condition to extending |
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1 | | or renewing
the existing franchise or selling |
2 | | agreement. The determination whether good
cause exists |
3 | | to cancel, terminate, or refuse to renew or extend the |
4 | | franchise
or selling agreement, or to change or modify |
5 | | the obligations of the dealer as a
condition to offer |
6 | | renewal, replacement, or succession shall be made
by |
7 | | the Board under subsection (d) of Section 12 of this |
8 | | Act.
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9 | | (D) Notwithstanding the terms, conditions, or |
10 | | provisions of a
franchise
or selling agreement, the |
11 | | following shall not constitute good cause for
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12 | | cancelling or terminating or failing to extend or renew |
13 | | the franchise or
selling agreement: (i) the change of |
14 | | ownership or executive management of the
franchisee's |
15 | | dealership; or (ii)
the
fact that the franchisee or |
16 | | owner of an interest in the franchise owns, has
an |
17 | | investment in, participates in the management of, or |
18 | | holds a license for
the sale of the same or any other |
19 | | line make of new motor vehicles.
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20 | | (E) The manufacturer may not cancel or terminate, |
21 | | or fail to extend or
renew a franchise or selling |
22 | | agreement or change or modify the obligations of
the |
23 | | franchisee as a condition to offering a renewal, |
24 | | replacement, or succeeding
franchise or selling |
25 | | agreement before the hearing process is concluded as
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26 | | prescribed by this Act, and thereafter, if the Board |
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1 | | determines that the
manufacturer has failed to meet its |
2 | | burden of proof and that good cause does
not exist to |
3 | | allow the proposed action;
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4 | | (7) notwithstanding the terms of any franchise |
5 | | agreement, to fail to
indemnify and hold harmless its |
6 | | franchised dealers against any judgment
or settlement for |
7 | | damages, including, but not limited to, court costs, expert
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8 | | witness fees, reasonable attorneys' fees of the new motor |
9 | | vehicle
dealer, and other expenses incurred in the |
10 | | litigation, so long as such fees
and costs are reasonable,
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11 | | arising out
of complaints, claims or lawsuits including, |
12 | | but not limited to, strict
liability, negligence, |
13 | | misrepresentation, warranty (express or implied),
or |
14 | | recision of the sale as defined in Section 2-608 of the |
15 | | Uniform Commercial
Code, to the extent that the judgment or |
16 | | settlement relates to the alleged
defective or negligent |
17 | | manufacture, assembly or design of new motor vehicles,
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18 | | parts or accessories or other functions by the |
19 | | manufacturer, beyond the
control of the dealer; provided |
20 | | that, in order to provide an adequate
defense, the |
21 | | manufacturer receives notice of the filing of a complaint, |
22 | | claim,
or lawsuit within 60 days after the filing;
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23 | | (8) to require or otherwise coerce a motor vehicle |
24 | | dealer to underutilize the motor vehicle dealer's |
25 | | facilities by requiring or otherwise coercing the motor |
26 | | vehicle dealer to exclude or remove from the motor vehicle |
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1 | | dealer's facilities operations for selling or servicing of |
2 | | any vehicles for which the motor vehicle dealer has a |
3 | | franchise agreement with another manufacturer, |
4 | | distributor, wholesaler, distribution branch or division, |
5 | | or officer, agent, or other representative thereof; |
6 | | provided, however, that, in light of all existing |
7 | | circumstances, (i) the motor vehicle dealer maintains a |
8 | | reasonable line of credit for each make or line of new |
9 | | motor vehicle, (ii) the new motor vehicle dealer remains in |
10 | | compliance with any reasonable facilities requirements of |
11 | | the manufacturer, (iii) no change is made in the principal |
12 | | management of the new motor vehicle dealer, and (iv) the |
13 | | addition of the make or line of new motor vehicles would be |
14 | | reasonable. The reasonable facilities requirement set |
15 | | forth in item (ii) of subsection (d)(8) shall not include |
16 | | any requirement that a franchisee establish or maintain |
17 | | exclusive facilities, personnel, or display space. Any |
18 | | decision by a motor vehicle dealer to sell additional makes |
19 | | or lines at the motor vehicle dealer's facility shall be |
20 | | presumed to be reasonable, and the manufacturer shall have |
21 | | the burden to overcome that presumption. A motor vehicle |
22 | | dealer must provide a written notification of its intent to |
23 | | add a make or line of new motor vehicles to the |
24 | | manufacturer. If the manufacturer does not respond to the |
25 | | motor vehicle dealer, in writing, objecting to the addition |
26 | | of the make or line within 60 days after the date that the |
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1 | | motor vehicle dealer sends the written notification, then |
2 | | the manufacturer shall be deemed to have approved the |
3 | | addition of the make or line; or |
4 | | (9) to use or consider the performance of a motor |
5 | | vehicle dealer relating to the sale of the manufacturer's, |
6 | | distributor's, or wholesaler's vehicles or the motor |
7 | | vehicle dealer's ability to satisfy any minimum sales or |
8 | | market share quota or responsibility relating to the sale |
9 | | of the manufacturer's, distributor's, or wholesaler's new |
10 | | vehicles in determining: |
11 | | (A) the motor vehicle dealer's eligibility to |
12 | | purchase program, certified, or other used motor |
13 | | vehicles from the manufacturer, distributor, or |
14 | | wholesaler; |
15 | | (B) the volume, type, or model of program, |
16 | | certified, or other used motor vehicles that a motor |
17 | | vehicle dealer is eligible to purchase from the |
18 | | manufacturer, distributor, or wholesaler; |
19 | | (C) the price of any program, certified, or other |
20 | | used motor vehicle that the dealer is eligible to |
21 | | purchase from the manufacturer, distributor, or |
22 | | wholesaler; or |
23 | | (D) the availability or amount of any discount, |
24 | | credit, rebate, or sales incentive that the dealer is |
25 | | eligible to receive from the manufacturer, |
26 | | distributor, or wholesaler for the purchase of any |
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1 | | program, certified, or other used motor vehicle |
2 | | offered for sale by the manufacturer, distributor, or |
3 | | wholesaler. |
4 | | (e) It shall be deemed a violation for a manufacturer, a |
5 | | distributor,
a wholesaler, a distributor branch or division or |
6 | | officer, agent or other
representative thereof:
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7 | | (1) to resort to or use any false or misleading |
8 | | advertisement in
connection with his business as such |
9 | | manufacturer, distributor, wholesaler,
distributor branch |
10 | | or division or officer, agent or other representative
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11 | | thereof;
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12 | | (2) to offer to sell or lease, or to sell or lease, any |
13 | | new motor vehicle
to any motor vehicle dealer at a lower |
14 | | actual price therefor than the actual
price offered to any |
15 | | other motor vehicle dealer for the same model vehicle
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16 | | similarly equipped or to utilize any device including, but |
17 | | not limited to,
sales promotion plans or programs which |
18 | | result in such lesser actual
price or fail to make |
19 | | available to any motor vehicle dealer any
preferential |
20 | | pricing, incentive, rebate, finance rate, or low interest |
21 | | loan
program offered to competing motor vehicle dealers in |
22 | | other contiguous states.
However, the provisions of this |
23 | | paragraph shall not apply to sales
to a motor vehicle |
24 | | dealer for resale to any unit of the United States
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25 | | Government, the State or any of its political subdivisions;
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26 | | (3) to offer to sell or lease, or to sell or lease, any |
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1 | | new motor vehicle
to any person, except a wholesaler, |
2 | | distributor or manufacturer's employees
at a lower actual |
3 | | price therefor than the actual price offered and charged
to |
4 | | a motor vehicle dealer for the same model vehicle similarly |
5 | | equipped or
to utilize any device which results in such |
6 | | lesser actual price. However,
the provisions of this |
7 | | paragraph shall not apply to sales to a motor
vehicle |
8 | | dealer for resale to any unit of the United States |
9 | | Government, the
State or any of its political subdivisions;
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10 | | (4) to prevent or attempt to prevent by contract or |
11 | | otherwise any motor
vehicle dealer or franchisee from |
12 | | changing the executive management control
of the motor
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13 | | vehicle dealer or franchisee unless the franchiser, having |
14 | | the burden of
proof, proves that such change of executive |
15 | | management will result in executive
management control by a |
16 | | person or persons who are not of good moral character
or |
17 | | who do not meet the franchiser's existing and, with |
18 | | consideration given
to the volume of sales and service of |
19 | | the dealership, uniformly applied
minimum business |
20 | | experience standards in the market area. However where
the |
21 | | manufacturer rejects a proposed change in executive |
22 | | management
control, the manufacturer shall give written |
23 | | notice of his reasons to the
dealer within 60 days of |
24 | | notice to the manufacturer by the dealer of
the proposed |
25 | | change. If the manufacturer does not send a letter to the
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26 | | franchisee by certified mail, return receipt requested, |
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1 | | within 60 days from
receipt by
the manufacturer of the |
2 | | proposed change, then the change of the
executive |
3 | | management control of the franchisee shall be deemed
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4 | | accepted as proposed by the franchisee, and the |
5 | | manufacturer shall give
immediate
effect to such change;
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6 | | (5) to prevent or attempt to prevent by contract or |
7 | | otherwise any motor
vehicle dealer from establishing or |
8 | | changing the capital structure of his
dealership or the |
9 | | means by or through which he finances the operation |
10 | | thereof;
provided the dealer meets any reasonable capital |
11 | | standards agreed to between
the dealer and the |
12 | | manufacturer, distributor or wholesaler, who may require
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13 | | that the sources, method and manner by which the dealer |
14 | | finances or intends
to finance its operation, equipment or |
15 | | facilities be fully disclosed;
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16 | | (6) to refuse to give effect to or prevent or attempt |
17 | | to prevent by
contract or otherwise any motor vehicle |
18 | | dealer or any officer, partner or
stockholder of any motor |
19 | | vehicle dealer from selling or transferring any
part of the |
20 | | interest of any of them to any other person or persons or |
21 | | party
or parties unless such sale or transfer is to a |
22 | | transferee who would
not otherwise qualify for a new motor |
23 | | vehicle dealers license under "The
Illinois Vehicle Code" |
24 | | or unless the franchiser, having the burden of proof,
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25 | | proves that such sale or transfer is to a person or party |
26 | | who is not of
good moral character or does not meet the |
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1 | | franchiser's existing and reasonable
capital standards |
2 | | and, with consideration given to the volume of sales and
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3 | | service of the dealership, uniformly applied minimum |
4 | | business experience
standards in the market area.
However, |
5 | | nothing herein shall be construed to prevent a
franchiser |
6 | | from implementing affirmative action programs providing |
7 | | business
opportunities for minorities or from complying |
8 | | with applicable federal,
State or local law:
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9 | | (A) If the manufacturer intends to refuse to |
10 | | approve the sale or
transfer of all or a part of the |
11 | | interest, then it shall, within 60 days from
receipt of |
12 | | the completed application forms generally utilized by |
13 | | a manufacturer
to conduct its review and a copy of all |
14 | | agreements regarding the proposed
transfer, send a |
15 | | letter by certified mail, return receipt requested, |
16 | | advising
the franchisee of any refusal to approve the |
17 | | sale or transfer of all or part of
the interest
and |
18 | | shall state that the dealer only has 30 days from the |
19 | | receipt of the
notice to file with the Motor Vehicle |
20 | | Review Board a written protest against
the proposed |
21 | | action.
The
notice shall set forth specific criteria |
22 | | used to evaluate the prospective
transferee and the |
23 | | grounds for refusing to approve the sale or transfer to
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24 | | that transferee. Within 30 days from the franchisee's |
25 | | receipt of the
manufacturer's notice, the
franchisee |
26 | | may file
with the Board a written protest against the |
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1 | | proposed action.
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2 | | When a protest has been timely filed, the Board |
3 | | shall enter an
order, fixing the date (within 60 days |
4 | | of the date of such
order), time, and place of a |
5 | | hearing on the protest, required under
Sections 12 and |
6 | | 29 of this Act, and send by certified mail, return |
7 | | receipt
requested, a copy of the order to the |
8 | | manufacturer that filed notice of
intention of the |
9 | | proposed action and to the protesting franchisee.
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10 | | The manufacturer shall have the burden of proof to |
11 | | establish that good
cause exists to refuse to approve |
12 | | the sale or transfer to the transferee. The
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13 | | determination whether good cause exists to refuse to |
14 | | approve the sale or
transfer shall be made by the Board |
15 | | under subdivisions (6)(B).
The manufacturer shall not |
16 | | refuse to approve the sale or transfer
by
a dealer or |
17 | | an officer, partner, or stockholder of a franchise or |
18 | | any part
of the interest to any person or persons |
19 | | before the hearing process is
concluded as prescribed |
20 | | by this Act, and thereafter if the Board determines
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21 | | that the manufacturer has failed to meet its burden of |
22 | | proof and that good
cause does not exist to refuse to |
23 | | approve the sale or transfer to the
transferee.
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24 | | (B) Good cause to refuse to approve such sale or |
25 | | transfer under this
Section is established when such |
26 | | sale or transfer is to a transferee who would
not |
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1 | | otherwise qualify for a new motor vehicle dealers |
2 | | license under "The
Illinois Vehicle Code" or such sale |
3 | | or transfer is to a person or party who is
not of good |
4 | | moral character or does not meet the franchiser's |
5 | | existing and
reasonable capital standards and, with |
6 | | consideration given to the volume of
sales and service |
7 | | of the dealership, uniformly applied minimum business
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8 | | experience standards in the market area.
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9 | | (7) to obtain money, goods, services, anything of |
10 | | value, or any other
benefit from any other person with whom |
11 | | the motor vehicle dealer does business,
on account of or in |
12 | | relation to the transactions between the dealer and
the |
13 | | other person as compensation, except for services actually |
14 | | rendered,
unless such benefit is promptly accounted for and |
15 | | transmitted to the motor
vehicle dealer;
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16 | | (8) to grant an additional franchise in the relevant |
17 | | market area of an
existing franchise of the same line make |
18 | | or to relocate an existing motor
vehicle dealership within |
19 | | or into a relevant market area of an existing
franchise of |
20 | | the same line make.
However, if the manufacturer wishes to
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21 | | grant such an additional franchise to an independent person |
22 | | in a bona fide
relationship in which such person is |
23 | | prepared to make a significant
investment subject to loss |
24 | | in such a dealership, or if the manufacturer
wishes to |
25 | | relocate an existing motor vehicle dealership, then the
|
26 | | manufacturer shall send a letter
by certified mail, return |
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| | SB0140 Enrolled | - 18 - | LRB099 03415 JLS 23423 b |
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|
1 | | receipt requested, to each existing dealer or dealers
of |
2 | | the same line make whose relevant
market area includes the |
3 | | proposed location of the additional or relocated
franchise |
4 | | at least
60 days before the manufacturer grants an |
5 | | additional franchise or relocates an
existing franchise of |
6 | | the same line make within or into the relevant market
area |
7 | | of an existing
franchisee of the same line make. Each |
8 | | notice shall set forth the specific
grounds for the |
9 | | proposed grant of an additional or relocation of an |
10 | | existing
franchise and shall state that the dealer has only |
11 | | 30 days from the date of receipt of the notice to file with |
12 | | the Motor Vehicle Review Board a written protest against |
13 | | the proposed action. Unless the parties agree upon the |
14 | | grant or establishment of the
additional or relocated |
15 | | franchise within 30 days from the date the
notice was
|
16 | | received by the existing franchisee of the same line make |
17 | | or any person
entitled to receive such notice, the |
18 | | franchisee or other person may file
with the Board a |
19 | | written protest against the grant or establishment of the
|
20 | | proposed additional or relocated franchise.
|
21 | | When a protest has been timely filed, the Board shall |
22 | | enter an order
fixing a date (within 60 days of the date of |
23 | | the order), time,
and place of a hearing on the protest, |
24 | | required under Sections 12 and 29
of this Act, and send by |
25 | | certified or registered mail, return receipt
requested, a |
26 | | copy of the order to the manufacturer that filed the notice |
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| | SB0140 Enrolled | - 19 - | LRB099 03415 JLS 23423 b |
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1 | | of
intention to grant or establish the proposed additional |
2 | | or relocated
franchise and to the protesting dealer or |
3 | | dealers of the same line make
whose
relevant market area |
4 | | includes the proposed location of the additional or
|
5 | | relocated franchise.
|
6 | | When more than one protest is filed against the grant |
7 | | or establishment of
the
additional or relocated franchise |
8 | | of the same line make, the Board may
consolidate the |
9 | | hearings to expedite disposition of the matter. The
|
10 | | manufacturer shall have the burden of proof to establish |
11 | | that good cause
exists to allow the grant or establishment |
12 | | of the additional or relocated
franchise. The manufacturer |
13 | | may not grant or establish the additional
franchise or |
14 | | relocate the existing franchise before the hearing process |
15 | | is
concluded as prescribed by this Act, and thereafter if |
16 | | the Board determines
that the manufacturer has failed to |
17 | | meet its burden of proof and that good
cause does not exist |
18 | | to allow the grant or establishment of the additional
|
19 | | franchise or relocation of the existing franchise.
|
20 | | The determination whether good cause exists for |
21 | | allowing the grant or
establishment of an additional |
22 | | franchise or relocated existing franchise,
shall be made by |
23 | | the Board under subsection (c) of Section 12 of this Act.
|
24 | | If the manufacturer seeks to enter
into a contract, |
25 | | agreement or other arrangement with any person,
|
26 | | establishing any additional motor vehicle dealership or |
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1 | | other facility,
limited to the sale of factory repurchase |
2 | | vehicles or late model vehicles,
then the manufacturer |
3 | | shall follow the notice procedures set forth in this
|
4 | | Section and the
determination whether good cause exists for |
5 | | allowing the proposed agreement
shall be made by the Board |
6 | | under subsection (c) of Section 12, with the
manufacturer |
7 | | having
the burden of proof.
|
8 | | A. (Blank).
|
9 | | B. For the purposes of this Section, appointment of |
10 | | a successor motor
vehicle dealer at the same location |
11 | | as its predecessor, or within 2 miles
of such location,
|
12 | | or the relocation of an existing dealer or franchise |
13 | | within 2 miles of
the relocating dealer's or |
14 | | franchisee's existing location,
shall not be construed |
15 | | as a grant, establishment or the
entering into of an |
16 | | additional franchise or selling agreement, or a
|
17 | | relocation of an existing franchise. The reopening
of a |
18 | | motor vehicle dealership that has not been in operation |
19 | | for 18 months
or more shall be deemed the grant of an |
20 | | additional franchise or selling
agreement.
|
21 | | C. This Section does not apply to the relocation of |
22 | | an existing
dealership or franchise in a county having |
23 | | a population of more than
300,000 persons when the new |
24 | | location is within the dealer's current
relevant |
25 | | market area, provided the new location is more than 7 |
26 | | miles from
the nearest dealer of the same line make. |
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1 | | This Section does not apply to
the relocation of an |
2 | | existing dealership or franchise in a county having a
|
3 | | population of less than 300,000 persons when the new |
4 | | location is within the
dealer's current relevant |
5 | | market area, provided the new location is more
than 12 |
6 | | miles from the nearest dealer of the same line make. A |
7 | | dealer that would be farther away
from the new location |
8 | | of an existing dealership or
franchise of the same line |
9 | | make after a relocation may not
file a written protest |
10 | | against the relocation with the
Motor Vehicle Review |
11 | | Board.
|
12 | | D. Nothing in this Section shall be construed to |
13 | | prevent a
franchiser from implementing affirmative |
14 | | action programs providing business
opportunities for |
15 | | minorities or from complying with applicable federal,
|
16 | | State or local law;
|
17 | | (9) to require a motor vehicle dealer to assent to a |
18 | | release, assignment,
novation, waiver or estoppel which |
19 | | would relieve any person from liability
imposed by this |
20 | | Act;
|
21 | | (10) to prevent or refuse to give effect to the |
22 | | succession to the
ownership or management control of a |
23 | | dealership by any legatee under the
will of a dealer or to |
24 | | an heir under the laws of descent and distribution
of this |
25 | | State unless the franchisee has designated a successor to |
26 | | the ownership
or management control under the succession |
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1 | | provisions of the franchise.
Unless the
franchiser, having |
2 | | the burden of proof, proves that the successor
is a person |
3 | | who is not of good moral character or does not meet the
|
4 | | franchiser's existing and reasonable capital standards |
5 | | and, with consideration
given to the volume of sales and |
6 | | service of the dealership, uniformly applied
minimum |
7 | | business experience standards in the market area, any |
8 | | designated
successor of a dealer or franchisee may succeed |
9 | | to the ownership or management
control of a dealership |
10 | | under the existing franchise if:
|
11 | | (i) The designated successor gives the |
12 | | franchiser written notice by
certified mail, |
13 | | return receipt requested, of his or her intention |
14 | | to succeed to
the ownership of the dealer within 60 |
15 | | days of the dealer's death or incapacity;
and
|
16 | | (ii) The designated successor agrees to be |
17 | | bound by all the terms
and
conditions of the |
18 | | existing franchise.
|
19 | | Notwithstanding the foregoing, in the event the motor |
20 | | vehicle dealer or
franchisee and manufacturer have duly |
21 | | executed an agreement concerning
succession rights prior |
22 | | to the dealer's death or incapacitation, the agreement
|
23 | | shall be observed.
|
24 | | (A) If the franchiser intends to refuse to honor |
25 | | the successor to the
ownership of a deceased or |
26 | | incapacitated dealer or franchisee under an
existing |
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1 | | franchise agreement, the franchiser shall send a |
2 | | letter by certified
mail, return receipt requested, to |
3 | | the
designated successor within
60 days
from receipt of |
4 | | a proposal advising of its intent to refuse to honor |
5 | | the
succession and to discontinue the existing |
6 | | franchise agreement
and shall state that the |
7 | | designated successor only has 30 days from the
receipt |
8 | | of the notice to file with the Motor Vehicle Review |
9 | | Board a written
protest against the proposed action.
|
10 | | The notice shall set forth the
specific grounds for the |
11 | | refusal to honor the succession and discontinue the
|
12 | | existing franchise agreement.
|
13 | | If notice of refusal is not timely served upon the |
14 | | designated
successor,
the franchise agreement shall |
15 | | continue in effect subject to termination only as
|
16 | | otherwise permitted by paragraph (6) of subsection (d) |
17 | | of Section 4 of this
Act.
|
18 | | Within 30 days from the date the notice was |
19 | | received by the
designated
successor or any other |
20 | | person entitled to notice, the designee or other
person |
21 | | may file with the Board a written protest against the |
22 | | proposed action.
|
23 | | When a protest has been timely filed, the Board |
24 | | shall enter an
order,
fixing a date (within 60 days of |
25 | | the date of the order), time,
and place of a hearing on |
26 | | the protest, required under Sections 12 and 29
of this |
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1 | | Act, and send by certified mail, return receipt |
2 | | requested, a copy of
the order to the franchiser that |
3 | | filed the notice of intention of the
proposed action |
4 | | and to the protesting designee or such other person.
|
5 | | The manufacturer shall have the burden of proof to |
6 | | establish that good
cause exists to refuse to honor the |
7 | | succession and discontinue the existing
franchise |
8 | | agreement. The determination whether good cause exists |
9 | | to refuse to
honor the succession shall be made by the |
10 | | Board under subdivision (B) of this
paragraph (10). The |
11 | | manufacturer shall not refuse to honor the succession |
12 | | or
discontinue the existing franchise agreement before |
13 | | the hearing process is
concluded as prescribed by this |
14 | | Act, and thereafter if the Board determines
that it has |
15 | | failed to meet its burden of proof and that good cause |
16 | | does not
exist to refuse to honor the succession and |
17 | | discontinue the existing
franchise agreement.
|
18 | | (B) No manufacturer shall impose any conditions |
19 | | upon honoring the
succession and continuing the |
20 | | existing franchise agreement with the designated
|
21 | | successor other than that the franchisee has |
22 | | designated a successor to the
ownership or management |
23 | | control under the succession provisions of the
|
24 | | franchise, or that the designated successor is of good |
25 | | moral character or meets
the reasonable capital |
26 | | standards and, with consideration given to the volume |
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1 | | of
sales and service of the dealership, uniformly |
2 | | applied minimum business
experience standards in the |
3 | | market area;
|
4 | | (11) to prevent or refuse to approve a proposal to |
5 | | establish a successor
franchise at a location previously |
6 | | approved by the franchiser when submitted
with the |
7 | | voluntary termination by the existing franchisee unless |
8 | | the successor
franchisee would not otherwise qualify for a |
9 | | new motor vehicle dealer's
license under the Illinois |
10 | | Vehicle Code or unless the franchiser, having
the burden of |
11 | | proof, proves that such proposed successor is not of good
|
12 | | moral character or does not meet the franchiser's existing |
13 | | and reasonable
capital standards and, with consideration |
14 | | given to the volume of sales and
service of the dealership, |
15 | | uniformly applied minimum business experience
standards in |
16 | | the market area. However, when such a rejection
of a |
17 | | proposal is made, the manufacturer shall give written |
18 | | notice of its
reasons to the franchisee within 60 days of |
19 | | receipt by the manufacturer
of the proposal. However, |
20 | | nothing herein shall be construed
to prevent a franchiser |
21 | | from implementing affirmative action programs providing
|
22 | | business opportunities for minorities, or from complying |
23 | | with applicable
federal, State or local law;
|
24 | | (12) to prevent or refuse to grant a franchise to a |
25 | | person because such
person owns, has investment in or |
26 | | participates in the management of or holds
a franchise for |
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1 | | the sale of another make or line of motor vehicles within
7 |
2 | | miles of the proposed franchise location in a county having |
3 | | a population
of more than 300,000 persons, or within 12 |
4 | | miles of the proposed franchise
location in a county having |
5 | | a population of less than 300,000
persons; or
|
6 | | (13) to prevent or attempt to prevent any new motor |
7 | | vehicle dealer
from establishing any additional motor |
8 | | vehicle dealership or other facility
limited to the sale of |
9 | | factory repurchase vehicles or late model vehicles
or |
10 | | otherwise offering for sale factory repurchase vehicles of |
11 | | the same line
make at an existing franchise by failing to |
12 | | make
available any contract, agreement or other |
13 | | arrangement which is made
available or otherwise offered to |
14 | | any person.
|
15 | | (f) It is deemed a violation for a manufacturer, a |
16 | | distributor, a wholesaler
wholesale ,
a distributor
branch or |
17 | | division, a factory branch or division, or a wholesale branch |
18 | | or
division, or
officer, agent, broker, shareholder, except a |
19 | | shareholder of 1% or less of the
outstanding
shares of any |
20 | | class of securities of a manufacturer, distributor, or |
21 | | wholesaler
which is a
publicly traded corporation, or other |
22 | | representative, directly or indirectly,
to own or
operate a |
23 | | place of business as a motor vehicle franchisee or motor |
24 | | vehicle
financing
affiliate, except that, this subsection |
25 | | shall not prohibit : |
26 | | (1) the ownership or
operation of a
place of business |
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| | SB0140 Enrolled | - 27 - | LRB099 03415 JLS 23423 b |
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|
1 | | by a manufacturer, distributor, or wholesaler for a period,
|
2 | | not to exceed
18 months, during the transition from one |
3 | | motor vehicle franchisee to another;
or |
4 | | (2) the
investment in a motor vehicle franchisee by a |
5 | | manufacturer, distributor, or
wholesaler if
the investment |
6 | | is for the sole purpose of enabling a partner or |
7 | | shareholder in
that motor
vehicle franchisee to acquire an |
8 | | interest in that motor vehicle franchisee and
that partner
|
9 | | or shareholder is not otherwise employed by or associated |
10 | | with the
manufacturer,
distributor, or wholesaler and |
11 | | would not otherwise have the requisite capital
investment
|
12 | | funds to invest in the motor vehicle franchisee, and has |
13 | | the right to purchase
the entire
equity interest of the |
14 | | manufacturer, distributor, or wholesaler in the motor
|
15 | | vehicle
franchisee within a reasonable period of time not |
16 | | to exceed 5 years ; or .
|
17 | | (3) the ownership or operation of a place of business |
18 | | by a manufacturer that manufactures only diesel engines for |
19 | | installation in trucks having a gross vehicle weight rating |
20 | | of more than 16,000 pounds that are required to be |
21 | | registered under the Illinois Vehicle Code, provided that: |
22 | | (A) the manufacturer does not otherwise |
23 | | manufacture, distribute, or sell motor vehicles as |
24 | | defined under Section 1-217 of the Illinois Vehicle |
25 | | Code; |
26 | | (B) the manufacturer owned a place of business and |
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1 | | it was in operation as of January 1, 2016; |
2 | | (C) the manufacturer complies with all obligations |
3 | | owed to dealers that are not owned, operated, or |
4 | | controlled by the manufacturer, including, but not |
5 | | limited to those obligations arising pursuant to |
6 | | Section 6; |
7 | | (D) to further avoid any acts or practices, the |
8 | | effect of which may be to lessen or eliminate |
9 | | competition, the manufacturer provides to dealers on |
10 | | substantially equal terms access to all support for |
11 | | completing repairs, including, but not limited to, |
12 | | parts and assemblies, training, and technical service |
13 | | bulletins, and other information concerning repairs |
14 | | that the manufacturer provides to facilities that are |
15 | | owned, operated, or controlled by the manufacturer; |
16 | | and |
17 | | (E) the manufacturer does not require that |
18 | | warranty repair work be performed by a |
19 | | manufacturer-owned repair facility and the |
20 | | manufacturer provides any dealer that has an agreement |
21 | | with the manufacturer to sell and perform warranty |
22 | | repairs on the manufacturer's engines the opportunity |
23 | | to perform warranty repairs on those engines, |
24 | | regardless of whether the dealer sold the truck into |
25 | | which the engine was installed. |
26 | | (g) Notwithstanding the terms, provisions, or conditions |
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| | SB0140 Enrolled | - 29 - | LRB099 03415 JLS 23423 b |
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1 | | of any agreement or
waiver, it shall be deemed a violation for |
2 | | a manufacturer, a distributor,
a wholesaler, a distributor |
3 | | branch or division, a factory branch or division,
or a |
4 | | wholesale branch or division, or officer, agent or other |
5 | | representative
thereof, to directly or indirectly condition |
6 | | the awarding of a franchise to a
prospective new motor vehicle |
7 | | dealer, the addition of a line make or
franchise to an existing |
8 | | dealer, the renewal of a franchise of an existing
dealer, the |
9 | | approval of the relocation of an existing dealer's facility, or |
10 | | the
approval of the sale or transfer of the ownership of a |
11 | | franchise on the
willingness of a dealer, proposed new dealer, |
12 | | or owner of an interest in the
dealership facility to enter |
13 | | into a site control agreement or exclusive use
agreement unless |
14 | | separate and reasonable consideration was offered and accepted |
15 | | for that agreement. |
16 | | For purposes of this subsection (g), the terms "site |
17 | | control
agreement" and "exclusive use agreement" include any |
18 | | agreement that has
the effect of either (i) requiring that the |
19 | | dealer establish or maintain
exclusive dealership facilities; |
20 | | or (ii) restricting the ability of the dealer, or
the ability |
21 | | of the dealer's lessor in the event the dealership facility is |
22 | | being
leased, to transfer, sell, lease, or change the use of |
23 | | the dealership premises,
whether by sublease, lease, |
24 | | collateral pledge of lease, or other similar agreement. "Site |
25 | | control agreement" and "exclusive use agreement" also include a |
26 | | manufacturer restricting the ability of a dealer to transfer, |
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1 | | sell, or lease the dealership premises by right of first |
2 | | refusal to purchase or lease, option to purchase, or option to |
3 | | lease if the transfer, sale, or lease of the dealership |
4 | | premises is to a person who is an immediate family member of |
5 | | the dealer. For the purposes of this subsection (g), "immediate |
6 | | family member" means a spouse, parent, son, daughter, |
7 | | son-in-law, daughter-in-law, brother, and sister. |
8 | | If a manufacturer exercises any right of first refusal to |
9 | | purchase or lease or option to purchase or lease with regard to |
10 | | a transfer, sale, or lease of the dealership premises to a |
11 | | person who is not an immediate family member of the dealer, |
12 | | then (1) within 60 days from the receipt of the completed |
13 | | application forms generally utilized by a manufacturer to |
14 | | conduct its review and a copy of all agreements regarding the |
15 | | proposed transfer, the manufacturer must notify the dealer of |
16 | | its intent to exercise the right of first refusal to purchase |
17 | | or lease or option to purchase or lease and (2) the exercise of |
18 | | the right of first refusal to purchase or lease or option to |
19 | | purchase or lease must result in the dealer receiving |
20 | | consideration, terms, and conditions that either are the same |
21 | | as or greater than that which they have contracted to receive |
22 | | in connection with the proposed transfer, sale, or lease of the |
23 | | dealership premises. |
24 | | Any provision
contained in any agreement entered into on or |
25 | | after the effective date of this amendatory Act of the 96th |
26 | | General Assembly that is inconsistent with the provisions of |
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1 | | this subsection (g) shall be
voidable at the election of the |
2 | | affected dealer, prospective dealer, or owner
of an interest in |
3 | | the dealership facility. |
4 | | (h) For purposes of this subsection: |
5 | | "Successor manufacturer" means any motor vehicle |
6 | | manufacturer that, on or after January 1, 2009, acquires, |
7 | | succeeds to, or
assumes any part of the business of another |
8 | | manufacturer, referred to as the
"predecessor manufacturer", |
9 | | as the result of any of the following: |
10 | | (i) A change in ownership, operation, or control of the |
11 | | predecessor
manufacturer by sale or transfer of assets, |
12 | | corporate stock or other
equity interest, assignment, |
13 | | merger, consolidation, combination, joint
venture, |
14 | | redemption, court-approved sale, operation of law or
|
15 | | otherwise. |
16 | | (ii) The termination, suspension, or cessation of a |
17 | | part or all of the
business operations of the predecessor |
18 | | manufacturer. |
19 | | (iii) The discontinuance of the sale of the product |
20 | | line. |
21 | | (iv) A change in distribution system by the predecessor |
22 | | manufacturer,
whether through a change in distributor or |
23 | | the predecessor
manufacturer's decision to cease |
24 | | conducting business through a
distributor altogether. |
25 | | "Former Franchisee" means a new motor vehicle dealer that |
26 | | has entered into a franchise with a predecessor manufacturer |
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| | SB0140 Enrolled | - 32 - | LRB099 03415 JLS 23423 b |
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|
1 | | and that has either: |
2 | | (i) entered into a termination agreement or deferred |
3 | | termination
agreement with a predecessor or successor |
4 | | manufacturer related to
such franchise; or |
5 | | (ii) has had such franchise canceled, terminated, |
6 | | nonrenewed,
noncontinued, rejected, nonassumed, or |
7 | | otherwise ended. |
8 | | For a period of 3 years from: (i) the date that a successor |
9 | | manufacturer acquires, succeeds to, or assumes any part of the |
10 | | business of a predecessor manufacturer; (ii) the last day that |
11 | | a former franchisee is authorized to remain in business as a |
12 | | franchised dealer with respect to a particular franchise under |
13 | | a termination agreement or deferred termination agreement with |
14 | | a predecessor or successor manufacturer; (iii) the last day |
15 | | that a former franchisee that was cancelled, terminated, |
16 | | nonrenewed, noncontinued, rejected, nonassumed, or otherwise |
17 | | ended by a predecessor or successor manufacturer is authorized |
18 | | to remain in business as a franchised dealer with respect to a |
19 | | particular franchise; or (iv) the effective date of this |
20 | | amendatory Act of the 96th General Assembly, whichever is |
21 | | latest, it shall be unlawful for such successor manufacturer to |
22 | | enter into a same line make franchise with any
person or to |
23 | | permit the relocation of any existing same line
make franchise, |
24 | | for a line make of the predecessor manufacturer that would be |
25 | | located or
relocated within the relevant market area of a |
26 | | former franchisee who owned or leased a
dealership facility in |
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|
|
1 | | that relevant market area without first offering the additional |
2 | | or relocated
franchise to the former franchisee, or the |
3 | | designated successor of such former franchisee in the
event the |
4 | | former franchisee is deceased or a person with a disability, at |
5 | | no cost and without any requirements or
restrictions other than |
6 | | those imposed generally on the manufacturer's other |
7 | | franchisees at that
time, unless one of the following applies: |
8 | | (1) As a result of the former franchisee's |
9 | | cancellation, termination,
noncontinuance, or nonrenewal |
10 | | of the franchise, the predecessor
manufacturer had |
11 | | consolidated the line make with another of its line makes
|
12 | | for which the predecessor manufacturer had a franchisee |
13 | | with a then-existing
dealership facility located within |
14 | | that relevant market area. |
15 | | (2) The successor manufacturer has paid the former |
16 | | franchisee, or the
designated successor of such former |
17 | | franchisee in the event the former
franchisee is deceased |
18 | | or a person with a disability, the fair market value of the |
19 | | former
franchisee's franchise on (i) the date the |
20 | | franchisor announces the action which results in the |
21 | | termination, cancellation, or nonrenewal; or (ii) the date |
22 | | the action which results in termination, cancellation, or |
23 | | nonrenewal first became general knowledge; or (iii) the day |
24 | | 12 months prior to the date on which the notice of |
25 | | termination, cancellation, or nonrenewal is issued, |
26 | | whichever amount is higher. Payment is due within 90 days |
|
| | SB0140 Enrolled | - 34 - | LRB099 03415 JLS 23423 b |
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|
1 | | of the effective date of the termination, cancellation, or |
2 | | nonrenewal. If the termination, cancellation, or |
3 | | nonrenewal is due to a manufacturer's change in |
4 | | distributors, the manufacturer may avoid paying fair |
5 | | market value to the dealer if the new distributor or the |
6 | | manufacturer offers the dealer a franchise agreement with |
7 | | terms acceptable to the dealer. |
8 | | (3) The successor manufacturer proves that it would |
9 | | have had good cause to terminate the franchise agreement of |
10 | | the former franchisee, or the successor of the former |
11 | | franchisee under item (e)(10) in the event that the former |
12 | | franchisee is deceased or a person with a disability. The |
13 | | determination of whether the successor manufacturer would |
14 | | have had good cause to terminate the franchise agreement of |
15 | | the former franchisee, or the successor of the former |
16 | | franchisee, shall be made by the Board under subsection (d) |
17 | | of Section 12. A successor manufacturer that seeks to |
18 | | assert that it would have had good cause to terminate a |
19 | | former franchisee, or the successor of the former |
20 | | franchisee, must file a petition seeking a hearing on this |
21 | | issue before the Board and shall have the burden of proving |
22 | | that it would have had good cause to terminate the former |
23 | | franchisee or the successor of the former franchisee. No |
24 | | successor dealer, other than the former franchisee, may be |
25 | | appointed or franchised by the successor manufacturer |
26 | | within the relevant market area of the former franchisee |
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1 | | until the Board has held a hearing and rendered a |
2 | | determination on the issue of whether the successor |
3 | | manufacturer would have had good cause to terminate the |
4 | | former franchisee. |
5 | | In the event that a successor manufacturer attempts to |
6 | | enter into a same line make franchise with any person or to |
7 | | permit the relocation of any existing line make franchise under |
8 | | this subsection (h) at a location that is within the relevant |
9 | | market area of 2 or more former franchisees, then the successor |
10 | | manufacturer may not offer it to any person other than one of |
11 | | those former franchisees unless the successor manufacturer can |
12 | | prove that at least one of the 3 exceptions in items (1), (2), |
13 | | and (3) of this subsection (h) applies to each of those former |
14 | | franchisees. |
15 | | (Source: P.A. 99-143, eff. 7-27-15.)
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16 | | Section 99. Effective date. This Act takes effect upon |
17 | | becoming law. |