§ 60-1437 — Manufacturer or distributor; prohibited acts with respect to new motor vehicles

In addition
to the restrictions imposed by section 60-1436 , a manufacturer or distributor
shall not:
(1) Fail to deliver new motor vehicles or new motor vehicle parts or
accessories within a reasonable time and in reasonable quantities relative
to the new motor vehicle dealer's market area and facilities, unless the failure
is caused by acts or occurrences beyond the control of the manufacturer or
distributor or unless the failure results from an order by the new motor vehicle
dealer in excess of quantities reasonably and fairly allocated by the manufacturer
or distributor;
(2) Refuse to disclose to a new motor vehicle dealer the method and
manner of distribution of new motor vehicles by the manufacturer or distributor
or, if a line-make is allocated among new motor vehicle dealers, refuse to
disclose to any new motor vehicle dealer that handles the same line-make the
system of allocation, including, but not limited to, a complete breakdown
by model, and a concise listing of dealerships with an explanation of the
derivation of the allocation system, including its mathematical formula in
a clear and comprehensible form;
(3) Refuse to disclose to a new motor vehicle dealer the total number
of new motor vehicles of a given model which the manufacturer or distributor
has sold during the current model year within the dealer's marketing district,
zone, or region, whichever geographical area is the smallest;
(4) Increase the price of any new motor vehicle which the new motor
vehicle dealer had ordered and delivered to the same retail consumer for whom
the vehicle was ordered, if the order was made prior to the dealer's receipt
of the written official price increase notification. A sales contract signed
by a private retail consumer and binding on the dealer shall constitute evidence
of such order. In the event of manufacturer or distributor price reduction
or cash rebate, the amount of any reduction or rebate received by a dealer
shall be passed on to the private retail consumer by the dealer. Any price
reduction in excess of five dollars shall apply to all vehicles in the dealer's
inventory which were subject to the price reduction. A price difference applicable
to a new model or series of motor vehicles at the time of the introduction
of the new model or series shall not be considered a price increase or price
decrease. This subdivision shall not apply to price changes caused by the
following:
(a) The addition to a motor vehicle of required or optional equipment
pursuant to state or federal law;
(b) In the case of foreign-made vehicles or components, revaluation
of the United States dollar; or
(c) Any increase in transportation charges due to an increase in rates
charged by a common carrier or other transporter;
(5) Fail or refuse to sell or offer to sell to all franchised new motor
vehicle dealers in a line-make every new motor vehicle sold or offered for
sale to any franchised new motor vehicle dealer of the same line-make. However,
the failure to deliver any such new motor vehicle shall not be considered
a violation of this section if the failure is due to a lack of manufacturing
capacity or to a strike or labor difficulty, a shortage of materials, a freight
embargo, or any other cause over which the franchisor has no control. A manufacturer
or distributor shall not require that any of its new motor vehicle dealers
located in this state pay any extra fee, purchase unreasonable or unnecessary
quantities of advertising displays or other materials, or remodel, renovate,
or recondition the new motor vehicle dealer's existing facilities in order
to receive any particular model or series of vehicles manufactured or distributed
by the manufacturer for which the dealers have a valid franchise. Notwithstanding
the provisions of this subdivision, nothing contained in this section shall
be deemed to prohibit or prevent a manufacturer from requiring that its franchised
dealers located in this state purchase special tools or equipment, stock reasonable
quantities of certain parts, or participate in training programs which are
reasonably necessary for those dealers to sell or service any model or series
of new motor vehicles. This subdivision shall not apply to manufacturers of
recreational vehicles;
(6) Fail to offer dealers of a specific line-make a new franchise agreement
containing substantially similar terms and conditions for sales of the line-make
if the ownership of the manufacturer or distributor changes or there is a
change in the plan or system of distribution;
(7) Take an adverse action against a dealer because the dealer sells
or leases a motor vehicle that is later exported to a location outside the
United States. A franchise provision that allows a manufacturer or distributor
to take adverse action against a dealer because the dealer sells or leases
a motor vehicle that is later exported to a location outside the United States
is enforceable only if, at the time of the original sale or lease, the dealer
knew or reasonably should have known that the motor vehicle would be exported
to a location outside the United States. A dealer is presumed to have no knowledge
that a motor vehicle the dealer sells or leases will be exported to a location
outside the United States if, under the laws of a state of the United States
(a) the motor vehicle is titled, (b) the motor vehicle is registered, and
(c) applicable state and local taxes are paid for the motor vehicle. Such
presumption may be rebutted by direct, clear, and convincing evidence that
the dealer knew or reasonably should have known at the time of the original
sale or lease that the motor vehicle would be exported to a location outside
the United States. Except as otherwise permitted by subdivision (7) of this
section, a franchise provision that allows a manufacturer or distributor to
take adverse action against a dealer because the dealer sells or leases a
motor vehicle that is later exported to a location outside the United States
is void and unenforceable;
(8) Discriminate against a dealer holding a franchise for a line-make
of the manufacturer or distributor in favor of other dealers of the same line-make
in this state by:
(a) Selling or offering to sell a new motor vehicle to a dealer at a
lower actual price, including the price for vehicle transportation, than the
actual price at which the same model similarly equipped is offered to or is
available to another dealer in this state during a similar time period; or
(b) Using a promotional program or device or an incentive, payment,
or other benefit, whether paid at the time of the sale of the new motor vehicle
to the dealer or later, that results in the sale or offer to sell a new motor
vehicle to a dealer at a lower price, including the price for vehicle transportation,
than the price at which the same model similarly equipped is offered or is
available to another dealer in this state during a similar time period. This
subdivision shall not prohibit a promotional or incentive program that is
functionally available to competing dealers of the same line-make in this
state on substantially comparable terms;
(9) Refuse to pay a new
motor vehicle dealer for sales incentives, service incentives, rebates, or
other forms of incentive compensation within thirty days after their approval
by the manufacturer or distributor. The manufacturer or distributor shall
either approve or disapprove each claim by the dealer within thirty days after
receipt of the claim in a proper form generally used by the manufacturer or
distributor. Any claims not specifically disapproved in writing within thirty
days after receipt shall be considered to be approved;
(10) Perform an audit
to confirm payment of a sales incentive, service incentive, rebate, or other
form of incentive compensation more than twelve months after the date of payment
of the claim or twelve months after the end of the incentive program by the
new motor vehicle dealer unless the claim is fraudulent;
(11) Reduce the amount
to be paid to a new motor vehicle dealer for a sales incentive, service incentive,
rebate, or other form of incentive compensation or charge back a new motor
vehicle dealer subsequent to the payment of the claim for a sales incentive,
service incentive, rebate, or other form of incentive compensation unless
the manufacturer or distributor shows that the claim lacks required documentation
or is alleged to be false, fraudulent, or based on a misrepresentation.
A manufacturer or distributor
may not deny a claim based solely on a new motor vehicle dealer's incidental
failure to comply with a specific claim processing requirement, such as a
clerical error, that does not put into question the legitimacy of the claim.
No reduction in the amount to be paid to the new motor vehicle dealer and
no charge back subsequent to the payment of a claim may be made until the
new motor vehicle dealer has had notice and an opportunity to correct any
deficiency and resubmit the claim and to participate in all franchisor internal
appeal processes as well as all available legal processes. If a charge back
is the subject of adjudication, internal appeal, mediation, or arbitration,
no charge back shall be made until, in the case of an adjudication or legal
action, a final order has been issued.
A claim for reimbursement by the manufacturer or distributor
of sums due following an audit must be presented to the dealer within ninety
days after completion of the audit of the item subject to the claim. A manufacturer
or distributor may not setoff or otherwise take control over funds owned or
under the control of the new motor vehicle dealer or which are in an account
designated for the new motor vehicle dealer when such action is based upon
the findings of an audit or other claim with respect thereto until a final
decision is issued with respect to any challenge or appeal by either party
of any such audit or claim.
Any ambiguity or inconsistency in submission guidelines
shall be construed against the manufacturer or distributor;
(12) Make any express or implied
statement or representation directly or indirectly that the dealer is under
any obligation whatsoever to offer to sell or sell any extended service contract,
extended maintenance plan, gap policy, gap waiver, or other aftermarket product
or service offered, sold, backed by, or sponsored by the manufacturer or distributor
or to sell, assign, or transfer any of the dealer's retail sales contracts
or leases in this state on motor vehicles manufactured or sold by the manufacturer
or distributor to a finance company or class of finance companies, leasing
company or class of leasing companies, or other specified person, because
of any relationship or affiliation between the manufacturer or distributor
and the finance company or companies, leasing company or leasing companies,
or the specified person or persons; or
(13) Prohibit a franchisee
from acquiring a line-make of new motor vehicles solely because the franchisee
owns or operates a franchise of the same line-make in a contiguous market.
Any such statements, threats, promises, acts, contracts, or offers of
contracts, when their effect may be to lessen or eliminate competition or
tend to create a monopoly, are declared unfair trade practices and unfair
methods of competition and are prohibited.

Legislative History

Source: Laws 1984, LB 825, § 20; Laws 1999, LB 632, § 8; Laws 2010, LB816, § 82; Laws 2011, LB477, § 8; Laws 2012, LB896, § 1.