§ 60-1436 — Manufacturer or distributor; prohibited acts with respect to new motor vehicle dealers

A manufacturer or distributor shall not require or coerce
any new motor vehicle dealer in this state to do any of the following:
(1) Order or accept delivery of any new motor vehicle, part
or accessory, equipment, or other commodity not required by law which was
not voluntarily ordered by the new motor vehicle dealer or retain any part or accessory that the dealer has not
sold within twelve months if the part or accessory was not obtained through
a specific order initiated by the dealer but was specified for, sold to, and
shipped to the dealer pursuant to an automatic ordering system, if the part
or accessory is in the condition required for return, and if the part or accessory
is returned within thirty days after such twelve-month period. For purposes of this subdivision, automatic
ordering system means a computerized system required by the franchisor, manufacturer,
or distributor that automatically specifies parts and accessories for sale
and shipment to the dealer without specific order thereof initiated by the
dealer. The manufacturer, factory branch, distributor, or distributor branch
shall not charge a restocking or handling fee for any part or accessory returned
under this subdivision. In determining whether parts or accessories in the
dealer's inventory were specified and sold under an automated ordering system,
the parts and accessories in the dealer's inventory are presumed to be the
most recent parts and accessories that were sold to the dealer. This
section shall not be construed to prevent the manufacturer or distributor
from requiring that new motor vehicle dealers carry a reasonable inventory
of models offered for sale by the manufacturer or distributor;
(2) Offer or accept delivery of any new motor vehicle with
special features, accessories, or equipment not included in the list price
of the new motor vehicle as publicly advertised by the manufacturer or distributor;
(3) Participate monetarily in any advertising campaign or
contest or purchase any promotional materials, display devices, or display
decorations or materials at the expense of the new motor vehicle dealer;
(4) Join, contribute to, or affiliate with an advertising
association;
(5) Enter into any agreement with the manufacturer or distributor
or do any other act prejudicial to the new motor vehicle dealer by threatening
to terminate a dealer agreement or any contractual agreement or understanding
existing between the dealer and the manufacturer or distributor. Notice in
good faith to any dealer of the dealer's violation of any terms or provisions
of the dealer agreement shall not constitute a violation of the Motor Vehicle
Industry Regulation Act;
(6) Change the capital structure of the new motor vehicle
dealership or the means by or through which the dealer finances the operation
of the dealership, if the dealership at all times meets any reasonable capital
standards determined by the manufacturer in accordance with uniformly applied
criteria;
(7) Refrain from participation in the management of, investment
in, or the acquisition of any other line of new motor vehicle or related products
as long as the dealer maintains a reasonable line of credit for each make
or line of vehicle, remains in compliance with reasonable facilities requirements,
and makes no change in the principal management of the dealer;
(8) Prospectively assent to a release, assignment, novation,
waiver, or estoppel which would relieve any person from liability imposed
by the act or require any controversy between the new motor vehicle dealer
and a manufacturer or distributor to be referred to a person other than the
duly constituted courts of the state or the United States, if the referral
would be binding upon the new motor vehicle dealer;
(9) Change the location of the new motor vehicle dealership
or make any substantial alterations to the dealership premises, if such changes
or alterations would be unreasonable,
including unreasonably requiring a franchisee to establish, maintain, or continue
exclusive sales facilities, sales display space, personnel, service, parts,
or administrative facilities for a line-make, unless such exclusivity is reasonable
and otherwise justified by reasonable business considerations. In making that
determination, the franchisor shall take into consideration the franchisee's
compliance with facility requirements as required by the franchise agreement.
The franchisor shall have the burden of proving that business considerations
justify exclusivity;
(10) Release, convey, or otherwise provide customer information
if to do so is unlawful or if the customer objects in writing to doing so,
unless the information is necessary for the manufacturer, factory branch,
or distributor to meet its obligations to consumers or the new motor vehicle
dealer including vehicle recalls or other requirements imposed by state or
federal law;
(11) Release to any unaffiliated third party any customer
information which has been provided by the new motor vehicle dealer to the
manufacturer except as provided in subdivision (10) of this section. A manufacturer, importer, or distributor
may not share, sell, or transfer customer information, obtained from a dealer
and not otherwise publicly available, to other dealers franchised by the manufacturer
while the originating dealer is still a franchised dealer of the manufacturer
unless otherwise agreed to by the originating dealer. A manufacturer, importer,
or distributor may not use any nonpublic personal information, as that term
is used in 16 C.F.R. part 313, which is obtained from a dealer unless such
use falls within one or more of the exceptions to opt out requirements under
16 C.F.R. 313.14 or 313.15;
(12) Establish in connection with the sale of a motor vehicle
prices at which the dealer must sell products or services not manufactured
or distributed by the manufacturer or distributor, whether by agreement, program,
incentive provision, or otherwise;
(13) Underutilize the dealer's facilities by requiring or
coercing a dealer to exclude or remove from the dealer's facilities operations
for selling or servicing a line-make of motor vehicles for which the dealer
has a franchise agreement to utilize the facilities, except that this subdivision
does not prohibit a manufacturer from requiring an exclusive sales area within the facilities that are in compliance
with reasonable requirements for the facilities if the dealer complies with subdivision (9) of this section;
or
(14)(a) Enter
into any agreement with a manufacturer, factory branch, distributor, distributor
branch, or one of its affiliates which gives site control of the premises
of the dealer that does not terminate upon the occurrence of any of the following
events:
(i) The right of the franchisor to manufacture or distribute the
line-make of vehicles covered by the dealer's franchise is sold, assigned,
or otherwise transferred by the manufacturer, factory branch, distributor,
or distributor branch to another; or
(ii) The final termination of the dealer's
franchise for any reason unless an agreement for site control is voluntarily
negotiated separately and apart from the franchise agreement and consideration
has been offered by the manufacturer and accepted by the dealer. If a dealer
voluntarily terminates and has entered into a separately negotiated site control
agreement, the agreement may survive the termination if the agreement clearly
states that fact.
(b) For purposes of this subdivision, site control means the contractual
right to control in any way the commercial use and development of the premises
upon which a dealer's business operations are located, including the right
to approve of additional or different uses for the property beyond those of
its franchise, the right to lease or sublease the dealer's property, or the
right or option to purchase the dealer's property.
Any action prohibited for a manufacturer or distributor under the
Motor Vehicle Industry Regulation Act is also prohibited for a subsidiary
which is wholly owned or controlled by contract by a manufacturer or distributor
or in which a manufacturer or distributor has more than a ten percent ownership
interest, including a financing division.

Legislative History

Source: Laws 1984, LB 825, § 19; Laws 1999, LB 632, § 7; Laws 2010, LB816, § 81; Laws 2011, LB477, § 7.