Pub. 1 2019-2020 Issue 4

Issue 4 2020 21 WVADA monies from their open account during the resolution of the dispute. The dealer gets to keep its monies until an adminis - trative procedure takes place, and perhaps, even until court litigation occurs, if pursued. In other words, the dealer gets to keep their money until the manufacturer proves their position. Previously, the manufacturer would just take your money, and a dealer would be left arguing to get some of their money back. 5. Changes to the Franchise Agreement. If a manufacturer makes a change to a dealer’s area of responsibility, the manu - facturer must give notice of at least sixty (60) days prior to the change and an explanation of the basis for the change. Impor - tantly, the manufacturer is prohibited from using any decrease in sales to punish a dealer, andmust give the dealer twenty-four (24) months to become sales effective prior to taking any negative ac - tion based upon sales performance. This certainly gives the dealer time to adapt to the new changes without immediate negative consequences. 6. Captive Finance Companies. Our franchise law now prohibits “captive finance sources,” which mean the financial source that provides automotive related loans, which are directly or indirectly controlled, operated or owned by amanufacturer, from taking ac - tion contrary to our franchise law. Consequently, captive finance companies have to follow our franchise law in their relationship with amotor vehicle dealer. Again, this protects the dealer against a manufacturer that may be attempting to gain pressure through a captive finance company. 7. Manufacturer Direct Sales. Our statute was upgraded to pre - vent a manufacturer from directly or indirectly operating a deal - ership, including displaying amotor vehicle intending to facilitate a sale of a newmotor vehicle other than through a franchised deal - er. Consequently, our current law is extremely strong andprevents the display of motor vehicles in the State of West Virginia and pre - vents direct manufacturer sales through the display model. 8. Performance Standards. One of the more significant sections was a section of the West Virginia franchise law to prevent per - formance standards that are not equally applied, taking into ac - count the availability of vehicles, and is not fair and reasonable based upon accurate and verifiable data. It is the manufacturers’ responsibility to prove that their performance standards comply with these guidelines. Mr. Brown serves as General Counsel for the West Virginia Automobile Dealers Association. If you have any questions, you may reach him at (304) 344-0100 or jeb@pffwv.com. www.pffwv.com. Best of luck out there. 9. Dealer Data. While this is an everchanging topic, our change in 2015 recognized that customer information is the dealer’s data and property. While manufacturers may receive information re - lated to our customers that may affect the sale and delivery of the new motor vehicle and any successive safety and recall no - tices, it also prohibits the manufacturer from providing access to the customer or dealership information to third parties with - out first obtaining your prior express written consent. Impor - tantly, this consent can be revocable by the dealer with ten (10) days written notice. Furthermore, a dealer is allowed, and the manufacturer is required, to provide the dealer a list of all spe - cific third parties who have obtained any data from the dealer within the last twelve (12) months. The dealer must request this information in writing. Furthermore, the new statute allows a dealer to install a means to regulate and continually monitor what specific data is accessed from the dealer’s computer sys - tem by the manufacturer. Last, a very important change was made which makes the man - ufacturer or third party vendor indemnify and hold harmless the dealer from all damages, attorneys’ fees and costs, and other costs and expenses incurred by a dealer fromcomplaints or claims arising from the illegal use or disclosure of a dealer’s customer data from its system. As you can see, these were significant changes made five (5) years ago. Many dealers may not realize the extensive nature of these changes, and how our franchise law can assist them in their relationship with a manufacturer. I hope you find this information useful and encourage you to reach out to me with any questions. Know your rights, and don’t be taken pushed around by the manufacturer. Good luck this Fall. t A very important change was made which the manufacturer or third party vendor to hold harmless the dealer from all damages, attorneys’ fees and costs, and other costs and expenses incurred by a dealer from complaints, or claims arising from the illegal use or disclosure of a dealer’s customer data from its system.