§ 6 — New motor vehicle dealer franchise locations; relocation of existing franchises; notice; good cause; protest by other franchises; burden of proof

Massachusetts § 6

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title XV: REGULATION OF TRADE
• Ch. 93B: REGULATION OF BUSINESS PRACTICES BETWEEN MOTOR VEHICLE MANUFACTURERS, DISTRIBUTORS AND DEALERS

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Section 6. (a) Except as provided in subsection (b) of this section, it shall be a violation of subsection (a) of section 3 for a manufacturer, distributor or franchisor representative without good cause, in bad faith or in an arbitrary or unconscionable manner to:(1) grant or enter into a franchise agreement with a person who would be permitted under or required by the franchise agreement to conduct its dealership operations from a site any boundary of which is situated within the relevant market area of an existing motor vehicle dealer representing the same line make, regardless of whether said franchise agreement delineates a specific area of responsibility or provides that the area of responsibility of said existing motor vehicle dealer is to be shared or operated in common with others; or(2) permit the relocation of an existing motor vehicle dealer representing the same line make as another existing motor vehicle dealer to a site any boundary of which is within the relevant market area of an existing motor vehicle dealer which is not relocating, regardless of whether the franchise agreement of either motor vehicle dealer delineates a specific area of responsibility or provides that the area of responsibility of either motor vehicle dealer is to be shared or operated in common with others; but a dealer of the same line make shall not be permitted to file a protest if the site of the proposed relocation is farther away from said protesting dealer than the existing location.(b) Nothing contained in this section shall prohibit or prevent:(1) the relocation of an existing motor vehicle dealer to a location within the existing dealer's own relevant market area; if the proposed new location is not within a 4 mile radius of any other same line make motor vehicle dealer unless the site of the proposed relocation is farther away from the protesting dealer than the existing location;(2) the appointment of a successor motor vehicle dealer at the same location as its predecessor, or within a 2 mile radius from any boundary of the predecessor's former location, but at a location that is not within a 4 mile radius of any boundary of any other same line make motor vehicle dealer unless the site of the proposed location is farther away from the protesting dealer than the existing location, within 1 year from the date on which the predecessor ceased operations or was terminated, whichever occurred later; or(3) the entering into of a renewal, replacement or succeeding franchise agreement with an existing motor vehicle dealer whose operations will continue at the dealer's then current location. Nothing contained in this paragraph shall relieve a manufacturer or distributor from complying with the provisions of section 5 if the renewal, replacement or succeeding franchise agreement contains any term or condition the effect of which is to substantially change the sales and service obligations, capital requirements or facilities requirements of the motor vehicle dealer, or amends, adds or deletes any other material term or condition set forth in the motor vehicle dealer's franchise agreement.A motor vehicle dealer shall be limited to a relocation of an existing point under paragraph (1) or to the appointment of a successor at a site under paragraph (2) once within a 2–year period.(c) Any manufacturer or distributor which intends to grant or enter into an additional franchise agreement or to approve the relocation of an existing dealer, other than an appointment, relocation or renewal of a type described in subsection (b), shall, at least 90 days before granting the additional franchise, entering into the franchise agreement or approving the relocation, send written notice of its intention to do so to each motor vehicle dealer with a franchise agreement covering the same line make into whose relevant market area the proposed new franchise or relocated dealer will be located. The notice shall state the effective date on or after which the proposed franchise shall be granted or entered into or relocation approved, list specific grounds forming the basis for the appointment or relocation based upon information known by the manufacturer or distributor at the time that the notice is sent, and state the address to which any protest hereunder shall be delivered or sent.(d) Within 45 days after the notice required under subsection (c) has been sent, any motor vehicle dealer into whose relevant market area the additional dealer is to be located or relocated may object to the appointment or relocation, as the case may be, by sending a protest in writing to the location specified in the manufacturer's or distributor's notice. The protest shall list the specific grounds forming the basis for filing the protest based upon information known by the protesting dealer at the time that the protest is sent.(e) If a written protest is provided by a motor vehicle dealer in the manner and time required by subsection (d), either the motor vehicle dealer or the manufacturer or distributor may file a complaint, within 90 days after the notice required under subsection (c) was sent to the protesting motor vehicle dealer, in the superior court, or if applicable in the federal district court for the district of Massachusetts, to enforce or enjoin the proposed appointment or relocation; but nothing contained in this subsection shall relieve a party from the requirements of subsection (b) of section 15. Unless otherwise agreed to in writing by the parties, trial shall be held within 120 days of the expiration of the notice period set forth in subsection (c) but not sooner than 90 days after the expiration of the notice period, notwithstanding any standing orders, presumptive time standards, or administrative directives issued or established by the superior court or the federal district court providing for either an earlier or later time for holding the trial. Failure of either party to file a complaint within the time period set forth in this subsection shall bar the filing of a complaint on such grounds at any time in the future. If no protest is filed by any party having received proper notice, or if no injunction is issued during protest litigation, or if any such injunction is vacated or dissolved, the appointment or relocation may proceed.(f) In all judicial proceedings concerning the protest:(1) the fact that a protesting dealer has standing shall not be considered by the court in assessing the merits of the protest;(2) the proposed new dealer appointee or proposed relocating dealer, as the case may be, if it so desires, shall be permitted by the court to participate as a party in an ongoing action solely for the purpose of presenting evidence concerning any of the factors listed in subsection (g); but the proposed new dealer appointee or proposed relocating dealer shall not be entitled to initiate a suit or to recover any damages or attorneys' fees pursuant to this chapter; and(3) the court shall have the authority, applying customary standards governing the issuance of injunctive relief in accordance with Massachusetts or Federal Rules of Civil Procedure, as applicable, to enjoin the proposed appointment or relocation pending a determination by the trial court of the issues raised by a complaint filed pursuant to subsection (e).(g) In determining whether the proposed appointment or relocation is for good cause, the court shall consider all pertinent circumstances, that include but are not limited to:(1) whether the establishment of the additional franchise or relocation of the existing motor vehicle dealer appeared to be warranted by economic and marketing conditions including anticipated future changes;(2) the retail sales and service business transacted by the protesting motor vehicle dealer or dealers and other motor vehicle dealers of the same line make with a place of business in the relevant market area to be served by the additional franchise or proposed new location of an existing motor vehicle dealer during the 3 year period immediately preceding the notice as compared to the business available to them;(3) the investment necessarily made and obligations incurred by the protesting motor vehicle dealer or dealers to perform their obligations under existing franchise agreements;(4) the permanency of the investment of the protesting motor vehicle dealer or dealers;(5) whether it is beneficial or injurious to the public welfare for an additional franchise to be established or for the existing motor vehicle dealer to be relocated;(6) whether the protesting motor vehicle dealer or dealers and other motor vehicle dealers of the same line make with a place of business in the relevant market area to be served by the additional franchise or proposed relocating motor vehicle dealer are providing adequate competition and convenient consumer care for the motor vehicles of the same line make owned or operated by residents and persons with places of business in the relevant market area to be served by the additional franchise or proposed relocating motor vehicle dealer;(7) whether the protesting motor vehicle dealer or dealers and other motor vehicle dealers of the same line make with a place of business in the relevant market area to be served by the additional franchise or proposed relocating motor vehicle dealer have adequate motor vehicle sales and service facilities, equipment, vehicle parts and qualified personnel to reasonably provide for the needs of the consumers in the relevant market area to be served by the additional franchise or proposed relocating motor vehicle dealer; and,(8) whether the establishment of an additional franchise or relocation of an existing motor vehicle dealer would increase competition and therefore be in the public interest.(h) The burden to establish that a proposed appointment or relocation is for good cause shall be upon the manufacturer or distributor. The burden to establish that a proposed appointment or relocation is in bad faith, or is in an arbitrary or unconscionable manner, shall be upon the protesting motor vehicle dealer.(i) In the event a dealer is terminated, cancelled or not renewed as a result of the discontinuation of a line make or insolvency of a franchisor, for a period of 2 years from the date that the former franchisee ceased operations, it shall be unlawful for a successor manufacturer or distributor to enter into a same line make franchise as that operated by the former franchisee of the predecessor manufacturer with any person or to permit the relocation of any existing same line make franchise for the same line make represented by the former franchisee that would be located or relocated within the relevant market area of the former franchisee without first receiving written permission to do so from the majority owner of the former franchisee, or the majority owner's designated successor if the dealer principal of the former franchisee is deceased or disabled. Written permission from the former franchisee shall not be required if: (i) the manufacturer or distributor has offered to reinstate or appoint the former franchisee at no cost and without any requirements or restrictions other than those imposed generally on the manufacturer's other franchisees at that time and provided that the former franchisee meets the manufacturer's reasonable requirements for appointment as a dealer; (ii) the manufacturer or distributor has paid the former franchisee or designated successor all termination assistance as required by section 5; (iii) as a result of the former franchisee's termination 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 the relevant market area; or (iv) unless the former franchisee was eligible to seek reinstatement of the franchise subject to such termination under section 747 of the Consolidated Appropriations Act, 2010 and for any reason failed to secure such relief; provided, however, that this clause shall not apply to franchisors and franchisees of recreational or powersport vehicles.