218.0132(2)(d)3.
3. Establishes, in a proceeding brought by the dealer or distributor alleging that the cancellation or nonrenewal violates
s. 218.0116 (1) (i), that the continued distribution of the line make in the United States would cause it economic loss and that, after the effective date of the franchise cancellation or nonrenewal, neither the manufacturer, importer or distributor nor any owner, assignee or licensee of the trademarks or service marks used for the purpose of designating, making known or distinguishing the line make covered by the franchise will use the trademarks or service marks, either alone or in conjunction with other marks, in designating, making known or distinguishing any line make of motor vehicle sold or distributed in the United States.
218.0132(2)(d)4.
4. If the franchise relates to a line make that is sold or distributed in less than 13 states of the United States, establishes, in a proceeding brought by the dealer or distributor alleging that the cancellation or nonrenewal violates
s. 218.0116 (1) (i) all of the following:
218.0132(2)(d)4.a.
a. That the continued distribution of the line make in this state would cause it economic loss.
218.0132(2)(d)4.b.
b. That after the effective date of the franchise cancellation or nonrenewal, neither the manufacturer, importer or distributor nor any owner, assignee or licensee of the trademarks or service marks used for the purpose of designating, making known or distinguishing the line make covered by the franchise will use those trademarks or service marks, either alone or in conjunction with other marks, in designating, making known or distinguishing any line make of motor vehicle sold or distributed in this state, except that, if the line make covered by the franchise has been first distributed in this state less than 2 years before the effective date of the cancellation or nonrenewal, those trademarks and service marks may be used in this state after 6 years from the effective date of the cancellation or nonrenewal.
218.0132(2)(d)5.
5. Establishes in a proceeding brought by the dealer or distributor alleging that the cancellation or nonrenewal violates
s. 218.0116 (1) (i) all of the following:
218.0132(2)(d)5.a.
a. That the continued distribution of the line make in this state is prohibited by law or by an order of a court or agency with jurisdiction to issue the order.
218.0132(2)(d)5.b.
b. That the continued distribution of the line make in this state cannot be made to comply with the law or order through the reasonable efforts of the manufacturer, importer or distributor.
218.0132(2)(d)5.c.
c. That after the effective date of the franchise cancellation or nonrenewal, neither the manufacturer, importer or distributor nor any owner, assignee or licensee of the trademarks or service marks used for the purpose of designating, making known or distinguishing the line make covered by the franchise will use those trademarks or service marks, either alone or in conjunction with other marks, in designating, making known or distinguishing any comparable line make of motor vehicle sold or distributed in this state.
218.0132 History
History: 1999 a. 31 ss.
198 to
209.
218.0133
218.0133
Agreement termination benefits. 218.0133(1)(a)
(a) "Dealership facilities" means that part of a motor vehicle dealer's place of business that is used to conduct business under an agreement between a grantor and the motor vehicle dealer.
218.0133(1)(b)
(b) "Grantor" means a manufacturer on direct dealership, a distributor on indirect dealership or an importer on direct dealership that has entered into an agreement with a motor vehicle dealer.
218.0133(2)(a)(a) Except as provided in
sub. (5) and subject to
sub. (3), when a grantor or motor vehicle dealer terminates, cancels or does not renew an agreement a grantor shall pay a motor vehicle dealer all of the termination benefits under
pars. (b) to
(e).
218.0133(2)(b)1.1. A grantor shall repurchase from the motor vehicle dealer any unsold new motor vehicle that meets all of the following criteria:
218.0133(2)(b)1.a.
a. The motor vehicle has not been structurally modified by a motor vehicle dealer.
218.0133(2)(b)1.b.
b. The motor vehicle has not been operated more than 300 miles for manufacturer's tests, predelivery tests and motor vehicle dealer exchange in addition to operation required for motor vehicle delivery from the grantor.
218.0133(2)(b)1.c.
c. The motor vehicle was acquired as part of the motor vehicle dealer's original inventory or from the grantor or from another motor vehicle dealer of the same line make who acquired the motor vehicle from the grantor.
218.0133(2)(b)2.
2. A grantor may not be required to repurchase a motor vehicle under this paragraph unless the date on the original dealer invoice is within 12 months of the date on which the motor vehicle dealer terminates, cancels or does not renew an agreement or is within 18 months of the date on which the grantor terminates, cancels or does not renew an agreement.
218.0133(2)(b)3.
3. The repurchase price for a new motor vehicle shall be the motor vehicle invoice price from the grantor, plus destination, delivery or distribution charges and sales taxes incurred by the motor vehicle dealer, less allowances paid or credited to the motor vehicle dealer by the grantor. A grantor may subtract from a new motor vehicle repurchase price an amount equal to the diminution in wholesale value caused by damages to a new motor vehicle before the motor vehicle dealer delivers the new motor vehicle to the grantor.
218.0133(2)(c)1.1. A grantor shall repurchase from the motor vehicle dealer any unused, undamaged and unsold parts and accessories and unopened appearance and maintenance materials and paints if those items meet all of the following criteria:
218.0133(2)(c)1.a.
a. The items are in the motor vehicle dealer's inventory or subject to a noncancelable order to the grantor on the effective date of the termination, cancellation or nonrenewal and are in original packaging, or, if sheet metal or body panels, are in a comparable substitute for original packaging.
218.0133(2)(c)1.b.
b. The items were acquired by the motor vehicle dealer from the grantor or from the motor vehicle dealer's predecessor motor vehicle dealer and the items are listed for sale in the grantor's price schedules in effect on the effective date of the termination, cancellation or nonrenewal, the items are part of the motor vehicle dealer's original inventory acquired from the grantor or the items were acquired by the motor vehicle dealer from the grantor within 4 years before the effective date of the termination, cancellation or nonrenewal.
218.0133(2)(c)2.
2. A grantor may not be required to repurchase items that are not listed for sale in the grantor's price schedules in effect on the effective date of the termination, cancellation or nonrenewal if, within 2 years before the effective date of the termination, cancellation or nonrenewal, the grantor permitted a motor vehicle dealer to return obsolete parts and accessories, or a reasonable percentage of parts and accessories, for an amount that is equal to or greater than the price at which those items were listed for sale, less any allowances, at the time the return was permitted.
218.0133(2)(c)3.
3. The repurchase price for parts, accessories, materials and paints repurchased under
subd. 1. shall be the price at which those items are listed for sale in the grantor's price schedules in effect on the effective date of the termination, cancellation or nonrenewal, or, if an item is not listed, the motor vehicle dealer's original invoice cost, plus destination, delivery or distribution charges, and sales taxes incurred by the motor vehicle dealer, less allowances paid or credited to the motor vehicle dealer by the grantor. If a motor vehicle dealer inventories, handles and packages repurchased items for delivery to the grantor, the grantor shall reimburse the motor vehicle dealer an additional amount equal to 2% of the repurchase price under this paragraph.
218.0133(2)(d)
(d) A grantor shall purchase from the motor vehicle dealer undamaged signs at a fair market price, if a sign bears a common name, trade name or trademark of the grantor, the grantor required that the motor vehicle dealer acquire the sign and the sign was acquired by the motor vehicle dealer from the grantor or from a source approved by the grantor. In addition, a grantor shall purchase from the motor vehicle dealer at a fair market price poles or other hardware used to erect a sign if the grantor required that the sign be free standing and not include a trademark or trade name other than that of the grantor. Fair market price is presumed to be equal to the motor vehicle dealer's original cost, reduced by one-tenth of the original cost for each year of ownership. The grantor or motor vehicle dealer may rebut the presumption.
218.0133(2)(e)
(e) The grantor shall purchase from the motor vehicle dealer special tools, equipment and furnishings at a fair market price, if the motor vehicle dealer acquired the tool, equipment or furnishing from the grantor or from a source approved by the grantor and the grantor required that the motor vehicle dealer acquire the tool, equipment or furnishing. Fair market price is presumed to be equal to the motor vehicle dealer's original cost, reduced by one-seventh of the original cost for each year of ownership. The grantor or motor vehicle dealer may rebut the presumption.
218.0133(3)(a)(a) The grantor shall provide a list of the motor vehicles, parts, accessories, materials and paints, signs, tools, equipment and furnishings that the motor vehicle dealer is authorized to return to the grantor within 30 days after the grantor receives a written inventory of the property that the motor vehicle dealer intends to return or within 30 days after the effective date of the termination, cancellation or nonrenewal, whichever is later. Within 60 days after the property is actually returned by the motor vehicle dealer to the grantor, f.o.b. dealership facilities, the grantor shall pay the motor vehicle dealer the reimbursement amount under
sub. (2) (b) to
(e), except that the grantor may apply the reimbursement amount first to pay any amount owed by the motor vehicle dealer to the grantor.
218.0133(3)(b)
(b) If a repurchase price under
sub. (2) depends on a purchase date or original cost or includes an associated cost, the motor vehicle dealer shall have the burden of proving by documentary evidence the purchase date, original cost or associated cost.
218.0133(4)(a)(a) Except as provided in
sub. (5) and subject to
par. (d), when a grantor terminates, cancels or does not renew an agreement a grantor shall, upon request, pay a motor vehicle dealer the termination benefits under
par. (b) or
(c). If a motor vehicle dealer receives benefits under
par. (b) or
(c), the grantor shall be entitled to the possession and use of the dealership facilities for the period that the termination benefits payment covers.
218.0133(4)(b)
(b) If a motor vehicle dealer leases its dealership facilities, a grantor shall, upon request, pay the motor vehicle dealer an amount equal to the dealership facilities' rent for one year or for the unexpired term of the lease, whichever is less.
218.0133(4)(c)
(c) If a motor vehicle dealer owns its dealership facilities, a grantor shall, upon request, pay the motor vehicle dealer an amount equal to the reasonable rental value of the dealership facilities for one year or until the dealership facilities are sold or leased, whichever is less.
218.0133(4)(d)
(d) Paragraphs (b) and
(c) apply only to dealership facilities that are used in performing sales and service obligations under an agreement before the motor vehicle dealer receives notice of the termination, cancellation or nonrenewal of the agreement.
218.0133(5)(a)1.
1. A motor vehicle dealer if a court, a licensor or the division of hearings and appeals determines that the motor vehicle dealer engaged in fraud or theft against the grantor in connection with the operation or management of its dealership under an agreement.
218.0133(5)(a)2.
2. A motor vehicle dealer who terminates or cancels an agreement without giving the grantor 60 days' notice or the notice required under the agreement, whichever is less.
218.0133(5)(a)3.
3. A motor vehicle dealer who does not give the grantor a written request for termination benefits that specifies the benefits sought within 60 days after the effective date of the termination, cancellation or nonrenewal.
218.0133(5)(a)4.
4. A motor vehicle dealer who sells its dealership assets to a 3rd party who becomes a successor motor vehicle dealer under an agreement with the grantor.
218.0133(5)(a)5.
5. A motor vehicle dealer who terminates, cancels or fails to renew an agreement to sell motor homes, as defined in
s. 340.01 (33m), unless a court, a licensor or the division of hearings and appeals determines that the grantor has not acted in good faith or has materially violated the agreement or a provision of
ss. 218.0101 to
218.0163 and determines that the motor vehicle dealer has not acted in bad faith or has not violated the agreement or a provision of
ss. 218.0101 to
218.0163.
218.0133(5)(a)6.
6. An agreement under which a motor vehicle dealer sells a camping trailer, as defined in
s. 340.01 (6m), or a trailer, as defined in
s. 340.01 (71), but only to the extent that the agreement covers camping trailers or trailers.
218.0133(5)(b)
(b) Subsection (2) does not apply to a motor vehicle dealer who is unable to convey clear title to property under
sub. (2) (b) to
(e) on the date on which the grantor takes delivery of the property.
218.0133(5)(c)
(c) Subsection (2) does not apply to property under
sub. (2) (b) to
(e) that is acquired by a motor vehicle dealer from another motor vehicle dealer if the property is acquired after the motor vehicle dealer receives or gives notice of termination, cancellation or nonrenewal or if the property was acquired other than in the ordinary course of the motor vehicle dealer's business.
218.0133(5)(d)
(d) Subsection (4) does not apply if a grantor terminates, cancels or fails to renew an agreement in compliance with
s. 218.0116 (1) (i), unless the primary ground for termination, cancellation or nonrenewal is inadequate sales performance by the motor vehicle dealer.
218.0133(6)(a)(a) This section does not restrict the right of a motor vehicle dealer to pursue any other remedy available against a grantor who terminates, cancels or does not renew an agreement.
218.0133(6)(b)
(b) A grantor may not make the termination benefits payments under
sub. (2) or
(4) contingent on the motor vehicle dealer releasing or waiving any rights, claims or remedies.
218.0133 History
History: 1999 a. 31 ss.
210 to
234.
218.0134(1)(1) In this section, "affected grantor" means a manufacturer on direct dealerships, a distributor on indirect dealerships or an importer on direct dealerships that has entered into an agreement with a motor vehicle dealer and that is directly affected by an action proposed to be undertaken by the dealer under this section.
218.0134(2)(a)(a) If a motor vehicle dealer's agreement with an affected grantor requires the grantor's prior approval of an action proposed to be undertaken by the dealer under this section, a dealer may not voluntarily change its ownership or executive management, transfer its dealership assets to another person, add another franchise at the same location as its existing franchise or relocate a franchise without giving prior written notice of the proposed action to the affected grantor and to the department of transportation. Within 20 days after receiving the notice, the affected grantor may serve the dealer with a written list of the information not already known or in the possession of the grantor that is reasonably necessary in order for the grantor to determine whether the proposed action should be approved. The grantor shall, in good faith, confirm in writing to the dealer the date on which it has received from the dealer or from other sources all the information specified on the list.
218.0134(2)(b)
(b) An affected grantor who does not approve of the proposed action shall, within 30 days after receiving the dealer's written notice of the proposed action or within 30 days after receiving all the information specified in a written list served on the dealer under
par. (a), whichever is later, file with the department of transportation and serve upon the dealer a written statement of the reasons for its disapproval. The reasons given for the disapproval or any explanation of those reasons by the manufacturer, distributor or importer shall not subject the manufacturer, distributor or importer to any civil liability unless the reasons given or explanations made are malicious and published with the sole intent to cause harm to the dealer or a transferee of the dealer. Failure to file and serve a statement within the applicable period shall, notwithstanding the terms of any agreement, constitute approval of the proposed action by the grantor. If an affected grantor files a written statement within the applicable period, the dealer may not voluntarily undertake the proposed action unless it receives an order permitting it to do so from the division of hearings and appeals under
sub. (3) (b).
218.0134(2)(c)
(c) A dealer who is served with a written statement by an affected grantor under
par. (b) may file with the department of transportation and the division of hearings and appeals and serve upon the affected grantor a complaint for the determination of whether there is good cause for permitting the proposed action to be undertaken. The division of hearings and appeals shall promptly schedule a hearing and decide the matter. The proposed action may not be undertaken pending the determination of the matter.
218.0134(3)(a)(a) In determining if there is good cause for permitting a proposed action to be undertaken, the division of hearings and appeals may consider any relevant factor including:
218.0134(3)(a)2.
2. The affected grantor's reasons for not approving the proposed action.
218.0134(3)(a)3.
3. The degree to which the inability to undertake the proposed action will have a substantial and adverse effect upon the motor vehicle dealer's investment or return on investment.
218.0134(3)(a)5.
5. The degree to which the proposed action will interfere with the orderly and profitable distribution of products by the affected grantor.
218.0134(3)(a)6.
6. The impact of the proposed action on other motor vehicle dealers.
218.0134(3)(a)7.
7. Whether the dealer and affected grantor have previously agreed upon a specific action that is inconsistent with the proposed action and, if so, whether there has been a change in circumstances sufficient to justify the proposed action.
218.0134(3)(b)
(b) The decision of the division of hearings and appeals shall be in writing and shall contain findings of fact and a determination of whether there is good cause for permitting the proposed action to be undertaken. The decision shall include an order that the dealer be allowed or is not allowed to undertake the proposed action, as the case may be. The order may require fulfillment of appropriate conditions before and after the proposed action is undertaken.
218.0134(4)(b)
(b) A proposed action that would require an affected grantor to give notice under
s. 218.0116 (7) (a), except that the dealer must have the affected grantor's written approval before undertaking any such proposed action.
218.0134(4)(c)
(c) The exercise by an affected grantor under an agreement of the right of first refusal to acquire the dealer's assets in the event of a proposed change of ownership or transfer of dealership assets, if all of the following requirements are met:
218.0134(4)(c)1.
1. The exercise of the right of first refusal will result in the dealer and the dealer's owners receiving the same or greater consideration as they have contracted to receive in connection with the proposed change of ownership or transfer of dealership assets.
218.0134(4)(c)2.
2. The proposed change of ownership or transfer of dealership assets does not involve the transfer of assets or the transfer or issuance of stock by the dealer or one or more dealer owners to one or more immediate family members of one or more dealer owners or to a qualifying member of the dealer's management or to a partnership, limited liability company or corporation controlled by those persons. In this subdivision:
218.0134(4)(c)2.a.
a. "Immediate family member" means the spouse, child, grandchild, spouse of a child or grandchild, brother, sister or parent of the dealer owner.
218.0134(4)(c)2.b.
b. "Qualifying member of the dealer's management" means an individual who has been employed by the dealer for at least 2 years and who otherwise qualifies as a dealer operator.
218.0134(4)(c)3.
3. The affected grantor agrees to pay the reasonable expenses, including reasonable attorney fees that do not exceed the usual, customary and reasonable fees charged for similar work done for other clients, incurred by the proposed new owner or transferee before the grantor's exercise of its right of first refusal in negotiating and implementing the contract for the proposed change of ownership or transfer of dealership assets. Notwithstanding this subdivision, no payment of expenses and attorney fees shall be required if the dealer has not submitted or caused to be submitted an accounting of those expenses within 7 days after the dealer's receipt of the affected grantor's written request for an accounting.
218.0134(4)(d)
(d) An action, if a proposed new owner or transferee does not agree to comply with the agreement between the affected grantor and dealer or with a new agreement containing substantially the same terms.
218.0134 History
History: 1999 a. 31 ss.
235 to
246.
218.0134 Annotation
The application of s. 218.01 (3x) [now s. 218.0134] to a contract executed prior to the enactment of sub. (3x) did not violate the contracts clause of the U.S. constitution. Chrysler Corp. v. Kolosso Auto Sales, Inc.
148 F.3d 892 (1998).
218.0136
218.0136
Mediation of disputes between licensees. 218.0136(1)(1) A licensee may not file a complaint or petition with the division of hearings and appeals or bring an action under
s. 218.0163 (1), based on an alleged violation of
ss. 218.0101 to
218.0163 by any other licensee or under
s. 218.0116 (7) or
(8),
218.0131 or
218.0134, unless the licensee serves a demand for mediation upon the other licensee before or contemporaneous with the filing of the complaint or petition or the bringing of the action. A demand for mediation shall be in writing and served upon the other licensee by certified mail at an address designated for that licensee in the licensor's records. The demand for mediation shall contain a brief statement of the dispute and the relief sought by the licensee filing the demand.
218.0136(2)
(2) Within 20 days after the date a demand for mediation is served, the parties shall mutually select an independent mediator and meet with that mediator for the purpose of attempting to resolve the dispute. The meeting place shall be within this state in a location selected by the mediator. The mediator may extend the date of the meeting for good cause shown by either licensee or upon the stipulation of both licensees.
218.0136(3)
(3) The service of a demand for mediation under
sub. (1) shall stay the time for the filing of any complaint or petition with the division of hearings and appeals or for bringing an action under
s. 218.0163 (1), based on an alleged violation of
ss. 218.0101 to
218.0163 by the other licensee or under
s. 218.0116 (7) or
(8),
218.0131 or
218.0134, until the representatives of both licensees have met with a mutually selected mediator for the purpose of attempting to resolve the dispute. If a complaint or petition is filed before the meeting, the division of hearings and appeals or the court shall enter an order suspending the proceeding or action until the meeting has occurred and may, upon the written stipulation of all parties to the proceeding or action that they wish to continue to mediate under this section, enter an order suspending the proceeding or action for as long a period as the division of hearings and appeals or court considers to be appropriate. A suspension order issued under this subsection may be revoked upon motion of any party or upon motion of the division of hearings and appeals or the court.
218.0136(4)
(4) The licensor shall encourage licensees under this section to establish, maintain and administer a panel of mediators who have the character, ability and training to serve as mediators and who have knowledge of the motor vehicle industry.
218.0136 History
History: 1999 a. 31 ss.
274 to
278.
218.0137
218.0137
Arbitration of disputes between licensees. A manufacturer, importer or distributor and a dealer may agree to submit a dispute arising under a franchise agreement or under
ss. 218.0101 to
218.0163 to binding arbitration. Unless agreed otherwise in an agreement that complies with
ss. 218.0114 (9) (b) and
218.0116 (1) (qm) 4., any arbitration proceeding shall be voluntary, initiated by serving a written demand for arbitration on the other party, and shall be conducted under the provisions of the state of Wisconsin arbitration plan administered by representatives of the licensees.
218.0137 History
History: 1999 a. 31 s.
279.
218.0138
218.0138
Immunity and presumption of good faith. A mediator or arbitrator is immune from civil liability for any good faith act or omission within the scope of the mediator's or arbitrator's performance of his or her powers and duties under
s. 218.0136 or the arbitration plan referred to in
s. 218.0137. Every act or omission of a mediator or arbitrator is presumed to be a good faith act or omission. This presumption may be overcome only by clear and convincing evidence.
