Down the road, if the dealer and the OEM end up in a dispute regarding the alleged concern, the dealer’s position is documented to include conduct or shortcomings on the part of the OEM that caused or contributed to the alleged deficiencies. origin of the alleged concern. For example, perhaps it stems from some conduct on the part of the OEM, such as an allocation problem, the use of improper standards of measurement, an incorrectly assigned market territory, or a failure to account for other market factors. Down the road, if the dealer and the OEM end up in a dispute regarding the alleged concern, the dealer’s position is documented to include conduct or shortcomings on the part of the OEM that caused or contributed to the alleged deficiencies. Based upon the considerations discussed above, a dealership should evaluate, along with its legal counsel, the dealer’s prompt written response to regular OEM performance letters, particularly where they may give rise to alleged deficiencies, paying close attention to factual accuracies and inaccuracies. The same holds true for written OEM communications specifically summarizing alleged performance or other concerns under the dealer’s sales and service agreement. This exchange of communication will assist the trier of fact, such as an arbiter, protest board or even a court, to assess whether the alleged concern constitutes a violation by the dealer under the dealer’s franchise agreement or whether the Julie A. Cardosi is Principal of the private firm, Law Office of Julie A. Cardosi, P.C., of Springfield, Illinois. She has practiced law for over 35 years and represents the business interests of franchised motor vehicle dealers throughout Illinois. Formerly in-house staff legal counsel for the Illinois Automobile Dealers Association, she concentrates her private practice in the areas of dealership compliance matters, transfers of ownership, mergers and acquisitions, franchise law, commercial real estate transfers, and other areas impacting day-to-day dealership operations. She has also served as former Illinois Assistant Attorney General and Deputy Chief of the Consumer Fraud Bureau of the Attorney General’s Office. The material discussed in this article is for general information only and is not intended as legal advice and should not be acted upon as such. Dealers should consult their own private legal counsel for application to their specific circumstances. For more information, Julie can be reached at jcardosi@autocounsel.com or 217-787-9782, ext. 1. alleged concern originates from or is caused in whole or in part by conduct or failures on the part of the OEM or some other factors. Consulting with counsel helps the dealer to avoid an unintended consequence such as statements against interest and will ultimately save both time and cost in the event the dealer has to formally challenge any adverse action taken by the OEM on the basis of its alleged deficiencies or concerns. 13
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