Bill Summary for H 455 (2019-2020)

Summary date: 

Apr 30 2019

Bill Information:

View NCGA Bill Details2019-2020 Session
House Bill 455 (Public) Filed Tuesday, March 26, 2019
AN ACT TO EXTEND DEADLINES RELATED TO LOANER DEALER REGISTRATION PLATES AND DEALER DATA REQUIREMENTS AND TO INCLUDE OUT-OF-STATE TITLES IN THE TITLE IN TRANSIT PROCESS.
Intro. by Ross, Wray.

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Bill 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. 

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