§ 53-216 — Supplier; prohibited acts

A supplier shall not:
(1) Fail to provide each wholesaler of the supplier's brand or brands with a written agreement which contains the entire agreement with the wholesaler and designates a specific, exclusive sales territory. Any agreement which is in existence on April 18, 1989, shall be renewed in a manner consistent with sections 53-201 to 53-223 , and the provisions of such sections may be incorporated by reference in the agreement. Nothing in such sections shall prevent a supplier from making a one-time appointment, for a period not to exceed ninety days, of a wholesaler to temporarily service a sales territory not designated to another wholesaler until such time as a wholesaler is appointed by the supplier. The wholesaler who is designated to service the sales territory during the period of temporary service shall not be in violation of such sections and, with respect to the temporary sales territory, shall not have any of the rights provided under sections 53-218 and 53-220 . The temporary service period may be extended beyond ninety days by the Nebraska Liquor Control Commission if justifiable circumstances exist as determined by the commission;
(2) Fix, maintain, establish, or unduly influence the price at which a wholesaler shall be required to sell any beer;
(3) Enter into an additional agreement with any other wholesaler for or to sell to any other wholesaler the same brand or brands of beer in the same sales territory or any portion thereof or to sell directly to any retailer in this state;
(4) Coerce or attempt to coerce any wholesaler to accept delivery of any beer or other commodity which has not been ordered by the wholesaler, except that a supplier may impose reasonable inventory requirements upon a wholesaler if the requirements are made in good faith and are generally applied to other similarly situated Nebraska wholesalers having an agreement with the supplier;
(5) Coerce or attempt to coerce any wholesaler to accept delivery of any beer or other commodity ordered by a wholesaler if the order was canceled by the wholesaler in accordance with acceptable procedures;
(6) Coerce or attempt to coerce any wholesaler to do any illegal act or to violate any law, rule, or regulation by threatening to amend, modify, cancel, terminate, or refuse to renew any agreement existing between the supplier and wholesaler;
(7) Require a wholesaler to assent to any condition, stipulation, or provision limiting the wholesaler's right to sell the brand or brands of beer or other products of any other supplier unless the acquisition of the brand or brands or products of another supplier would materially impair or adversely affect the wholesaler's quality of service, sales, or ability to compete effectively in representing the brand or brands of the supplier presently being sold by the wholesaler. The supplier shall have the burden of proving that such acquisition of such other brand or brands or products would have such effect;
(8) Require a wholesaler to purchase one or more brands of beer or other products in order for the wholesaler to purchase another brand or brands of beer for any reason. A wholesaler that has agreed to distribute a brand or brands before April 18, 1989, shall continue to distribute the brand or brands in conformance with sections 53-201 to 53-223 ;
(9) Require a wholesaler to submit audited profit and loss statements, audited balance sheets, or audited financial records as a condition of renewal or continuation of an agreement. A supplier may require profit and loss statements, balance sheets, or financial records which are certified by the wholesaler or an officer thereof;
(10) Coerce, compel, or require a wholesaler to provide or divulge specific information regarding the wholesaler's individual accounts or customers or his or her exclusive relationship with them or coerce, compel, or require a wholesaler to provide specific information concerning competitive brands;
(11) Use the threat of losing or withholding its credit as a means of compelling a wholesaler to standards of performance in any area of business except that area directly relating to credit;
(12) Withhold delivery of beer ordered by a wholesaler or change a wholesaler's quota of a brand or brands if the withholding or change is not made in good faith;
(13) Require a wholesaler by any means directly to participate in or contribute to any local or national advertising fund controlled, directly or indirectly, by a supplier;
(14) Willfully discriminate, directly or indirectly, in price, programs, or terms of sale offered to franchisees if the effect of such discrimination may be to substantially lessen competition or to give to one holder of a franchise any economic, business, or competitive advantage not offered to all holders of the same or similar franchise. This subdivision shall not govern dock prices;
(15) Take any action against a wholesaler who files a complaint regarding an alleged violation by the supplier of a federal, state, or local law, rule, or regulation in retaliation for such complaint;
(16) Restrict or inhibit, directly or indirectly, the right of free association among wholesalers for any lawful purpose;
(17) Require or prohibit, without just cause, any change in the manager or successor manager of any wholesaler who has been approved by the supplier as of or subsequent to April 18, 1989. If a wholesaler changes an approved manager or successor manager, a supplier shall not require or prohibit the change unless the person selected by the wholesaler fails to meet the reasonable qualifications for managers of Nebraska wholesalers of the supplier, which reasonable qualifications previously have been consistently applied to similarly situated Nebraska wholesalers by the supplier. The supplier shall have the burden of proving that such person fails to meet such reasonable qualifications and that the qualifications have been consistently applied to similarly situated Nebraska wholesalers;
(18) Upon written notice of intent to transfer the wholesaler's business, interfere with, prevent, or unreasonably delay for a period of sixty days or more the transfer of the wholesaler's business if the proposed transferee is a designated member; or
(19) Upon written notice of intent to transfer the wholesaler's business other than to a designated member, withhold consent to or approval of, or unreasonably delay for a period of sixty days or more after receipt of all material information reasonably requested of the wholesaler a response to a request by the wholesaler for, any transfer of a wholesaler's business if the proposed transferee meets the reasonable qualifications required by the supplier for similarly situated Nebraska wholesalers. The supplier shall have the burden of proving that the proposed transferee fails to meet such reasonable qualifications and that the qualifications have been consistently applied to similarly situated Nebraska wholesalers.

Legislative History

Source: Laws 1989, LB 371, § 16.