Bill Summaries: H455 (2019-2020 Session)

Tracking:
  • Summary date: Apr 30 2019 - View summary

    House committee substitute to the 1st edition makes the following changes. 

    Amends the definition of special tool or essential tool by adding that it must also be required by the manufacturer or distributor. 

    Further amends GS 20-305 to make it unlawful for any manufacturer, factory branch, distributor, or distributor branch, or any field representative, officer, agent, or any representative whatsoever of any of them, to require, coerce, or attempt to coerce any new motor vehicle dealer in the state to purchase or lease a specific dealer management computer system for communication with the manufacturer, factory branch, distributor, or distributor branch (previously, only extended to purchase or lease of any computer hardware or software used for any purpose other than the maintenance or repair of motor vehicles). Limits the proposed exception to now provide that instead of purchasing or leasing any special tools that are required by a manufacturer, factory branch, distributor, or distributor branch, a franchised dealer that sells fewer than 350 new motor vehicles per year may request approval from the manufacturer to enter into a local tool loaner agreement with another dealer if eight conditions are met (previously allowed dealers to share access to special tools with other dealers if four specified conditions are met, wholly distinct from the new conditions). Among the conditions that must be satisfied for a local tool loaner agreement are requirements that all participating dealers be located within a 40-mile radius of the dealer responsible for purchasing the specified special tools, the agreement be capped at five participating dealers, and the agreement be approved by the manufacturer, including the list of participating dealers and eligible special tools. 

    Adds to the proposed changes to GS 20-305 which (1) allow franchised new motor vehicle dealers who believe that it is unreasonable for a manufacturer, factory branch, distributor, or distributor branch with whom the dealer has entered into a franchise to include one or more portions of the dealer's existing area of responsibility previously assigned to that dealer to request the elimination of the contested territory from the dealer's area of responsibility by submitting a written request and (2) allow a dealer to file a petition within 60 days of receiving notice of the manufacturer's rejection of the dealer's request to eliminate the contested territory. Now qualifies the rights of new motor vehicle dealers under the subdivision on the dealer having not previously filed a petition under the subdivision within the preceding 48 months regarding the dealer's currently assigned areas of responsibility. Deems the dealer's request accepted if notice of objection of the request is not sent within 60 days of request (was, within 30 days). Specifies that in an evidentiary hearing of a dealer's petition contesting the proposed assignment or changes of the dealer's area of responsibility by a manufacturer, factory branch, distributor, or distributor branch, the burden of proof is on the affected manufacturer, factory branch, distributor or distributor branch. Establishes that in an evidentiary hearing for a dealer's petition to eliminate contested territory from the dealer's existing area of responsibility previously assigned to the dealer by the manufacturer, factory branch, distributor, or distributor branch, the burden of proof is on the dealer to prove that the continued inclusion of the contested territory in the dealer's area of responsibility is unreasonable under the circumstances or has been assigned arbitrarily in light of the present or projected future pattern of motor vehicle sales and registrations within the franchised dealer's new motor vehicle dealer's market.

    Eliminates the proposed changes to GS 20-305(51) (provisions which make it unlawful to establish, implement, or enforce criteria for measuring the sales or service performance of certain of its franchised new motor vehicle dealers in this state and instead maintains existing statutory language).

    Modifies proposed GS 20-305(52) to now make it illegal to prohibit or unreasonably limit or restrict a dealer from offering for sale over the Internet (previously, to prohibit, limit, or restrict a dealer from selling over the Internet) parts and accessories obtained by the dealer from the manufacturer, factory branch, distributor, or distributor branch, or from any source recommended or approved by such entities. Specifies that the new subdivision does not eliminate or impair the intellectual property rights of a manufacturer, factory branch, distributor, or distributor branch.

    Adds to the proposed changes to GS 20-305.1 (concerning automobile dealer warranty and recall obligations) to exclude audits conducted for cause from the proposed limitation of one audit per 12-month period for (1) warranty or recall parts or service compensation, or compensation for a qualifying used motor vehicle, and (2) for sales incentives, service incentives, rebates, or other forms in incentive compensation. Defines audit conducted for cause to mean an audit based on either statistical evidence that the dealer's claims are unreasonably high or that the dealer's claims submissions violate reasonable claims documentation or other applicable requirements of the manufacturer, factory branch, distributor, or distributor branch. Requires the manufacturer, factory branch, distributor or distributor branch which elects to perform an audit conducted for cause to explain in detail in the audit notice the data or other foundation upon which the cause is based. Similarly, provides that the statute does not prohibit or limit a manufacturer, factory branch, distributor, or distributor branch from conducting an audit of sales or leases made by one of its franchised dealers with known exporters or brokers for cause at any time during the permitted time period. Specifies that these provisions apply to audits of a dealer by a manufacturer for sales or leases made to known exporters or brokers. Defines for cause under this provision to mean the dealer's sale or lease of motor vehicles to individuals identified on a list of known motor vehicle exporters or brokers previously provided by or posted on a website made accessible to the dealer by the manufacturer, factory branch, distributor, or distributor branch.

    Adds to the proposed changes to GS 20-305.7, establishing that the dealer's data contained in or on a dealer management computer system owned or leased by a dealer located in the state is the sole and exclusive property of the dealer. Defines dealer data and dealer's data to mean information or other data that has been entered or stored on the dealer's dealer management computer system by an officer, employee, or contractee of the dealer, whether stored or hosted on-site at a dealer location or on the cloud, or at any other remote location, that relates to one of the 13 subjects; excludes proprietary software of the dealer management computer system provider. Further modifies one of the three conditions that must be met in order to avoid voiding the requirement to include that the dealer is either permitted to restrict the data fields that may be accessed in the dealers's dealer management computer system (was, dealer's computer system), or the dealer is allowed to provide the same data or information by furnishing the data in a widely accepted file format. Now makes it unlawful for any manufacturer, factory branch, distributor, or distributor branch to fail or refuse to a provide dealer notice, in a standalone written document, at least 45 days (was, at least 60 days) before making any changes in any of the dealer or customer data the dealer is required to share. Makes clarifying changes.

    Consolidates and modifies the prohibitions established in proposed GS 20-305.7(b1) (applicable to any manufacturer, factory branch, distributor, distributor branch, dealer management computer system vendor, or any third party with access to a dealer management computer system) and (b2) (applicable to any dealer management computer system vendor or other third party who has access to any dealer management computer system). Now, makes it unlawful for any dealer management computer system vendor or any third party with access to a dealer management computer system to (1) take any action that would prohibit or limit a dealer's ability to protect, store, copy, share, or use any customer or dealer information maintained in a dealer management computer system used by a new motor vehicle dealer located in the state; (2) access, use, store, or share any dealer data from a dealer management computer system in any manner other than by express written agreement; (3) fail to provide the dealer with the option and ability to securely obtain and push dealer data to third parties; (4) fail to promptly provide a dealer a written listing of all entities with whom the dealer's data is shared currently and over the preceding three years upon request; (5) fail to allow a dealer the ability to verify the data from the dealer's dealer management computer system provided or shared with third parties; (6) fail to allow and facilitate a dealer to audit the dealer management computer system and any specific data fields and data obtained or obtainable from its system; and (7) fail to promptly facilitate the transfer of the dealer's data maintained on its dealer management computer system to another system vendor in a secure, usable manner upon the dealer's written request any contract or agreement regarding the hardware or software related to the dealer's dealer management computer system, or hold the dealer responsible for fees in excess of reasonable charges incurred in the transfer. Specifies that service providers are permitted to recoup development costs incurred to provide the services involved and to make a reasonable profit on the service provided concerning transfers and access to information.

    Further amends GS 20-308.1 concerning when a cognizable injury to the collective interest of the members of the motor vehicle or motorcycle association is deemed to have occurred when a manufacturer, factory branch, distributor, or distributor branch doing business in this state engages in any conduct or takes action that has harmed or would harm or which has or would affect either (1) the majority of its franchised new motor vehicle dealers in the state or (2) a majority of all franchised new motor vehicle dealers in the state (previously provided for the affect of all or a substantial number of franchised new motor vehicle dealers in the state). Establishes that a court's declaratory ruling on the Article's applicability to or interpretation of the rights and obligations of one or more manufacturers or dealers is collateral estoppel in any subsequent civil action or administrative proceeding involving the same manufacturer(s) or the same dealer(s) on all issues of fact and law decided in the original civil action in which the association was a party. 


  • Summary date: Mar 26 2019 - View summary

    Amends the definitions in GS 20-286 that apply to the motor vehicle dealers and manufacturers licensing laws by adding and defining the term special tool or essential tool.

    Amends GS 20-305 to make unlawful for any manufacturer, factory branch, distributor, or distributor branch, or any field representative, officer, agent, or any representative whatsoever of any of them, to require, coerce, or attempt to coerce any new motor vehicle dealer in the state to purchase or lease computer hardware or software used for any purpose other than the maintenance or repair of motor vehicles (was, to purchase nondiagnostic computer equipment or programs). Adds that instead of purchasing or leasing any special tools that are required by a manufacturer, factory branch, distributor, or distributor branch, a dealer may share access to special tools with other dealers if the four specified conditions are met, including that the dealers have franchises with the same manufacturer, factory branch, distributor, or distributor branch, and that sharing tools will not unreasonably delay the completion of repairs. Further amends the statute by amending the definition of goods as used in the prohibition of requiring, coercing, or attempting to coerce a dealer located in this state to purchase goods or services of any nature from a vendor selected, identified, or designated by a manufacturer, distributor, affiliate, or captive finance source when the dealer may obtain goods or services of substantially similar quality and design from a vendor selected by the dealer, provided the dealer obtains prior approval from the manufacturer, distributor, affiliate, or captive finance source, for the use of the dealer's selected vendor. Provides that "goods" does not include parts as reasonably required by the manufacturer to be used in repairs under warranty obligations of a manufacturer or distributor. 

    Amends the provisions of GS 20-305 that make it illegal to assign or change a franchised new motor vehicle dealer's area of responsibility under the franchise arbitrarily or without due regard to the present or projected future pattern of motor vehicle sales and registrations within the dealer's market and without having provided the affected dealer with written notice, as specified. Adds that a franchised new motor vehicle dealer who believes that it is unreasonable for a manufacturer, factory branch, distributor, or distributor branch with whom the dealer has entered into a franchise to include one or more portions of the dealer's existing area of responsibility previously unassigned to that dealer may request the elimination of the contested territory from the dealer's area of responsibility by submitting a written request. Sets out additional requirements governing the request. Allows a dealer to file a petition within 60 days of receiving notice of the manufacturer's rejection of the dealer's request to eliminate the contested territory and have an evidentiary hearing. Makes conforming changes. 

    Amends the provisions of GS 20-305 that make it illegal to establish, implement, or enforce criteria for measuring the sales or service performance of any of its franchised new motor vehicle dealers in this state that (1) are unfair, unreasonable, arbitrary, or inequitable; (2) do not consider available relevant and material local, State, and regional criteria, data, and facts; relevant and material criteria, data, or facts include those of motor vehicle dealerships of comparable size in comparable markets; and (3) if such performance measurement criteria are based on a survey, the survey must be based on a statistically significant and valid random sample; no longer requires that these actions be taken for the purpose of cancelling, terminating, or nonrenewal of a franchise agreement. Makes conforming changes. Expands upon the types of decisions in which the performance criteria of the manufacture or distributor (which have been found to be faulty in one of the specified ways) may not be used as any part of the determination. Makes additional clarifying changes.

    Amends GS 20-305 by making it illegal to prohibit, limit, or restrict a dealer from selling over the Internet parts and accessories obtained by the dealer from the manufacturer, factory branch, distributor, or distributor branch, or from any source recommended or approved by such entities. 

    Amends GS 20-305.1 (concerning automobile dealer warranty and recall obligations) to limit conducting the following audits to only one time within a 12-month period: (1) for warranty or recall parts or service compensation, or compensation for a qualifying used motor vehicle; (2) for sales incentives, service incentives, rebates, or other forms in incentive compensation; (3) of a dealer by a manufacturer for sales or leases made to exporters or brokers. Adds that persons or entities employed or contracted by a manufacturer, factory branch, distributor, or distributor branch to conduct an audit of a dealer regulated by the statute must comply with the statue's requirements. Makes it unlawful to contract with or employ any person or other entity to conduct an audit of any motor vehicle dealer in the state regulated under the statute for which the person or entity conducting the audit would be compensated on the bases of the dollar amount, volume, or number of charge backs that would result to the dealer from the audit. 

    Amends GS 20-305 to make it illegal for a motor vehicle manufacturer, factory branch, distributor, distributor branch, or subsidiary thereof to own any ownership interest in, operate, or control any motor vehicle dealership in this state that offers motor vehicles for sale, lease, or subscription (was, any motor vehicle dealership in this state). 

    Amends GS 20-305.7 to void (was, voidable at the option of the dealer) any requirement that a new motor vehicle dealer provide its customer lists, customer information, consumer contact information, transaction data, or service files to the manufacturer, factory branch, distributor, or distributor branch, or to a third party as a condition to the dealer's participation in any incentive program or contest. Amends one of the three conditions that must be met in order to avoid voiding the requirement to include that the dealer is either permitted to restrict the data fields that may be accessed in the dealers's computer system, or the dealer is allowed to provide the same data or information by furnishing the data in a widely accepted file format. Makes additional clarifying changes. Adds that it is unlawful for any manufacturer, factory branch, distributor, or distributor branch to fail or refuse to a provide dealer notice, in a standalone written document, at least 60 days before making any changes in any of the dealer or customer data the dealer is required to share. The changes in the data is void unless the applicable manufacturer, factory branch, distributor, or distributor branch complies with the notice requirements. Makes it unlawful for any manufacturer, factory branch, distributor, distributor branch, dealer management computer system vendor, or any third party with access to a dealer management computer system to (1) take any action that would prohibit or limit a dealer's ability to protect, store, copy, share, or use any customer or dealer information maintained in a dealer management computer system used by a new motor vehicle dealer located in the state and sets out an inclusive list of examples of such prohibited conduct and (2) engage in cyber ransom. Makes it illegal for any dealer management computer system vendor or other third party who has access to any dealer or management computer system to fail or refuse to (1) adopt and make available a standardized framework for the exchange, integration, and sharing of data from dealer management computer systems with any party authorized to access a dealer management computer system; (2) provide access to open application programming interfaces to any party authorized to access a dealer management computer system; (3) access, use, store, or share any data from a dealer management computer system only to the extent permitted in its written agreement with the dealer; (4) make any agreement regarding access to, sharing or selling of, copying, using, or transmitting data on any dealer management computer system terminable upon no more than 90 days' notice from the dealer; (5) upon receipt of notice of the dealer's intent to terminate its contract, work to ensure a secure transition to a successor dealer management computer system vendor or any other party authorized to access a dealer management computer system; (6) promptly provide a dealer, upon request, with a list of entities with whom it is sharing any data from the dealer management computer system, or to whom it has allowed access to any data from the dealer management computer system; and (7) allow and facilitate a dealer to audit the dealer management computer system vendor's access and use of its dealer management computer system and any data obtained or obtainable from its dealer management computer system.

    Amends GS 20-308.1 to give any association comprised of at least 400 new motor vehicle dealers, or at least 10 motorcycle dealers, substantially all of whom are new motor vehicle dealers located within the state and which represents the collective interests of its members, standing to initiate an action or participate as a party to any civil or administrative proceeding in any of the courts or administrative agencies of this state. Removes the requirement of initiating mediation before the association and manufacturer, factory branch, distributor, or distributor branch brings an action. Amends when a  cognizable injury to the collective interest of the members of the association is deemed to have occurred to when a manufacturer, factory branch, distributor, or distributor branch doing business in this state engages in any conduct or takes action that has harmed or would harm or which has or would affect all or a substantial number of franchised new motor vehicle dealers in the state. 

    Includes a severability clause.