‣ 61-4-208 was amended to prohibit an OEM from requiring goods or services be purchased from its preferred vendor where the goods or services of like kind, quality and design are available from a vendor of the dealer’s choice. • 2015. MTADA offered no legislation during the 2015 session. MTADA did cooperate with the MDV on a few revisions particularly revising the requirement that dealers have actual possession of titles on used units before sale. Copies are permitted. • 2017. MTADA saw the following legislation adopted during the 2017 Session: ‣ The OEM’s contractual right of first refusal was declared unenforceable in Montana. ‣ The statutory language describing what constitutes “good cause” for termination of a dealer in 61-4207 was amended to require that the analysis of the subject dealer’s sales consider those metrics that are essential, reasonable, not discriminatory and that take into account the dealer’s local market variations beyond adjusting for the local popularity of general vehicle types. ‣ Adding language to the luxury tax provisions to exclude motor vehicles and the sale, lease, rental, loan or providing of any item, product or service by a “franchisee” (a dealer) as that term is defined in 61-4-201(7). • 2019. The 2019 Session was a big success for MTADA and Montana dealers. Several “real life” issues Montana dealers experienced over the prior few years were dealt with. Each change arose from circumstances where one OEM or another or a third-party vendor aligned with an OEM exerted their economic power and employed their heavy-handed tactics to take unfair advantage of several Montana dealers. These modifications address: ‣ Recognition that dealers collect information from their customers and store that information in electronic data management systems and the manner in which third parties can access and use the information is controlled by the dealer who owns the data. ‣ Clarifying the OEM’s obligation to a dealer whose franchise agreement is cancelled by requiring that signs and special tools must be repurchased and adding a timeline for payment with financial penalties for non-payment. ‣ Adding retirement of the dealer to the circumstances where an OEM is required to honor the designation of a family member as successor dealer for the franchise. ‣ Revising the method to be used in setting the warranty reimbursement rate. The new provisions completely replace the prior language of the Code regarding warranty reimbursement. ‣ Further revising the add point provisions, limiting the frequency of add point attempts, requiring additional information on the new dealer be included in the notice and allowing a dealer who successfully objects to recover his costs and attorney fees. • 2021 Session. MTADA’s Legislative program for the 2021 Session included updates to the 2019 warranty laws allowing use of the dealer’s retail labor time guide, provides for the issuance of loaner plates, provides for mediation and administrative hearings before the MVD for dealer/OEM disputes and authorizes MTADA to act as the Plaintiff in general interest litigation against an OEM. ‣ Resolution of OEM / dealer disputes was changed by creation of a mandatory mediation process as the first step to resolution of any kind of dispute between an OEM and a dealer. If unsuccessful, the next step is the filing of a petition with DMV following the same procedures used for dealer termination proceedings. The decision of the hearing officer is still subject to appeal to state District Court and the Montana Supreme Court. • 2023 Session. MTADA’s successful legislative program for the 2023 Session sponsored by Sen. Barry Usher concluded with a celebratory signing by Governor Gianforte on May 4, 2023. Senate Bill 411, as passed and signed by the Governor addresses the following issues: ‣ Update to Data Privacy Law. MTADA was successful in seeing a data privacy and protection statute enacted into law in the 2019 Session as 30-11-717, 718 and 719. The existing law was similar to AZ, but not identical. The AZ law was upheld by the 9th Circuit Court of Appeals. SB 411 revised the Montana statutes to mirror the provisions of the approved AZ law. ‣ Update Definition of “Motor Vehicle”. The definition of Motor Vehicle was revised to include motorboats. Personal watercraft (i.e.: jet skis) were already included in the definition and it appeared omitting motorboats may have been an oversight. The effect of this amendment is to give motorboat dealers the same statutory protections afforded to jet ski dealers. ‣ Written Franchise Agreement Required. 61-4202(3) does not specifically state that the motor vehicle OEM and dealer will enter into a written franchise agreement although industry practice requires it and other provisions of the code seem to assume that the franchise agreement be in writing. SB 411 updates the code to make it clear that a written franchise agreement is required by adding subsection (e) to 61-4-202(3). ‣ Limitation on OEM’s Ability to Limit Dealer’s Choice of Vendors. Many OEMs are embarking on a course of conduct to inject themselves into the retail relationship between the dealer and his customer by requiring the dealer to use an OEM’s handpicked data management firm — always more expensive — and excluding the dealer’s historic free choice to pick the provider that offers the required services and the best price. 61-4-208(1)(a)(v) already prohibits such conduct by OEMs in the acquisition of goods or services generally. SB 411 amends the code section to make it clear that the prohibition also includes interfering with the motor vehicle dealer’s choice of data management system or digital retail platform and prohibits the OEM from withholding any benefit including monetary incentives and vehicle allocation. WWW.MTADA.COM 13
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