Section 407.1034

Title XXVI TRADE AND COMMERCE

Chapter 407

Effective - 28 Aug 1998   

  407.1034.  Unlawful merchandising practices by motorcycle or all-terrain vehicle (ATV) franchisor. — Notwithstanding the terms of any franchise agreement, the performance, whether by act or omission, by a motorcycle or all-terrain vehicle franchisor of any or all of the following acts enumerated in this section are hereby defined as unlawful practices, the remedies for which are set forth in section 407.1043:

  (1)  To engage in any conduct which is capricious, in bad faith, or unconscionable and which causes damage to a motorcycle or all-terrain vehicle franchisee or to the public; provided, that good faith conduct engaged in by motorcycle or all-terrain vehicle franchisors as sellers of new motorcycles, all-terrain vehicles or parts or as holders of security interests therein, in pursuit of rights or remedies accorded to sellers of goods or to holders of security interests pursuant to the provisions of chapter 400, uniform commercial code, shall not constitute unfair practices pursuant to sections 407.1025 to 407.1049;

  (2)  To coerce any motorcycle or all-terrain vehicle franchisee to accept delivery of any new motorcycle, motorcycles, all-terrain vehicles, equipment, parts or accessories therefor, or any other commodity or commodities which such motorcycle or all-terrain vehicle franchisee has not ordered after such motorcycle or all-terrain vehicle franchisee has rejected such commodity or commodities.  It shall not be deemed a violation of sections 407.1025 to 407.1049 for a motorcycle or all-terrain vehicle franchisor to require a motorcycle or all-terrain vehicle franchisee to have an inventory of parts, tools and equipment reasonably necessary to service the motorcycles or all-terrain vehicles sold by a motorcycle or all-terrain vehicle franchisor; or new motorcycles or all-terrain vehicles reasonably necessary to meet the demands of dealers or the public;

  (3)  To unreasonably refuse to deliver in reasonable quantities and within a reasonable time after receipt of orders for new motorcycles or all-terrain vehicles, such motorcycles or all-terrain vehicles as are so ordered and as are covered by such franchise and as are specifically publicly advertised by such motorcycle or all-terrain vehicle franchisor to be available for immediate delivery; provided, however, the failure to deliver any motorcycle or all-terrain vehicle shall not be considered a violation of sections 407.1025 to 407.1049 if such failure is due to an act of God, work stoppage, or delay due to a strike or labor difficulty, shortage of products or materials, freight delays, embargo or other cause of which such motorcycle or all-terrain vehicle franchisor has no control;

  (4)  To coerce any motorcycle or all-terrain vehicle franchisee to enter into any agreement with such motorcycle or all-terrain vehicle franchisor or to do any other act prejudicial to such motorcycle or all-terrain vehicle franchisee, by threatening to cancel any franchise or any contractual agreement existing between such motorcycle or all-terrain vehicle franchisor and motorcycle or all-terrain vehicle franchisee; provided, however, that notice in good faith to any motorcycle or all-terrain vehicle franchisee of such motorcycle or all-terrain vehicle franchisee's violation of any provisions of such franchise or contractual agreement shall not constitute a violation of sections 407.1025 to 407.1049;

  (5)  To terminate, cancel or refuse to continue any franchise, directly or indirectly through the actions of the franchisor, unless such new motorcycle or all-terrain vehicle franchisee substantially defaults in the performance of such franchisee's reasonable and lawful obligations under such franchisee's franchise, or such new motorcycle or all-terrain vehicle franchisor discontinues the sale in the state of Missouri of such franchisor's products which are the subject of the franchise:

  (a)  Notwithstanding the terms of any franchise agreement to the contrary, good cause to terminate, cancel or refuse to continue any franchise agreement shall not be established based upon the fact that the motorcycle or all-terrain vehicle franchisee owns, has an investment in, participates in the management of or holds a franchise agreement for the sale or service of another make or line of new motorcycles or all-terrain vehicles or the motorcycle or all-terrain vehicle dealer has established another make or line of new motorcycles or all-terrain vehicles or service in the same dealership facilities as those of the motorcycle or all-terrain vehicle franchisor prior to February 1, 1998, or such establishment is approved in writing by the franchisee and the franchisor.  However, a franchisor may require a franchisee to maintain a reasonable line of credit for each franchise and to comply with each franchisor's reasonable requirements concerning capital, management and facilities.  If the franchise agreement requires the approval of the franchisor, such approval shall be requested in writing by the franchisee and the franchisor shall approve or disapprove such a request in writing within sixty days of receipt of such request.  A request from a franchisee shall be deemed to have been approved if the franchisor fails to notify the franchisee, in writing, of its disapproval within sixty days after its receipt of the written request;

  (b)  In determining whether good cause exists, the administrative hearing commission shall take into consideration the existing circumstances, including, but not limited to, the following factors:

  a.  The franchisee's sales in relation to sales in the market;

  b.  The franchisee's investment and obligations;

  c.  Injury to the public welfare;

  d.  The adequacy of the franchisee's service facilities, equipment, parts and personnel in relation to those of other franchisees of the same line-make;

  e.  Whether warranties are being honored by the franchisee;

  f.  The parties' compliance with their franchise agreement;

  g.  The desire of a franchisor for market penetration or a market study, if any, prepared by the franchisor or franchisee are two factors which may be considered;

  h.  The harm to the franchisor;

  (6)  To prevent by contract or otherwise, any motorcycle or all-terrain vehicle franchisee from changing the capital structure of the franchisee's franchise of such motorcycle or all-terrain vehicle franchisee or the means by or through which the franchisee finances the operation of the franchisee's franchise, provided the motorcycle or all-terrain vehicle franchisee at all times meets any reasonable capital standards agreed to between the motorcycle or all-terrain vehicle franchisee and the motorcycle or all-terrain vehicle franchisor and grants to the motorcycle or all-terrain vehicle franchisor a purchase money security interest in the new motorcycles or all-terrain vehicles, new parts and accessories purchased from the motorcycle or all-terrain vehicle franchisor;

  (7)  (a)  Prevent, by contract or otherwise, any sale or transfer of a franchisee's franchise or franchises or interest or management thereof; provided, if the franchise specifically permits the franchisor to approve or disapprove any such proposed sale or transfer, a franchisor shall only be allowed to disapprove a proposed sale or transfer if the interest being sold or transferred when added to any other interest owned by the transferee constitutes fifty percent or more of the ownership interest in the franchise and if the proposed transferee fails to satisfy any standards of the franchisor which are in fact normally relied upon by the franchisor prior to its entering into a franchise, and which relate to the proposed management or ownership of the franchise operations or to the qualification, capitalization, integrity or character of the proposed transferee and which are reasonable.  A franchisee may request, at any time, that the franchisor provide a copy of the standards which are normally relied upon by the franchisor to evaluate a proposed sale or transfer and a proposed transferee;

  (b)  The franchisee and the prospective franchisee shall cooperate fully with the franchisor in providing information relating to the prospective transferee's qualifications, capitalization, integrity and character;

  (c)  In the event of a proposed sale or transfer of a franchise, the franchisor shall be permitted to exercise a right of first refusal to acquire the franchisee's assets or ownership if:

  a.  The franchise agreement permits the franchisor to exercise a right of first refusal to acquire the franchisee's assets or ownership in the event of a proposed sale or transfer;

  b.  Such sale or transfer is conditioned upon the franchisor or franchisee entering a franchise agreement with the proposed transferee;

  c.  The exercise of the right of first refusal shall result in the franchisee and the franchisee's owners receiving the same or greater consideration and the same terms and conditions as contracted to receive in connection with the proposed sale or transfer;

  d.  The sale or transfer does not involve the sale or transfer to an immediate member or members of the family of one or more franchisee owners, defined as a spouse, child, grandchild, spouse of a child or grandchild, brother, sister or parent of the franchisee owner, or to the qualified manager, defined as an individual who has been employed by the franchisee for at least two years and who otherwise qualifies as a franchisee operator, or a partnership or corporation controlled by such persons; and

  e.  The franchisor agrees to pay the reasonable expenses, including attorney's fees which do not exceed the usual, customary and reasonable fees charged for similar work done for other clients, incurred by the proposed transferee prior to the franchisor's exercise of its right of first refusal in negotiating and implementing the contract for the proposed sale or transfer of the franchise or the franchisee's assets.  Notwithstanding the foregoing, no payment of such expenses and attorney's fees shall be required if the franchisee has not submitted or caused to be submitted an accounting of those expenses within fourteen days of the franchisee's receipt of the franchisor's written request for such an accounting.  Such accounting may be requested by a franchisor before exercising its right of first refusal;

  (d)  For determining whether good cause exists for the purposes of this subdivision, the administrative hearing commission shall take into consideration the existing circumstances, including, but not limited to, the following factors:

  a.  Whether the franchise agreement specifically permits the franchisor to approve or disapprove any proposed sale or transfer;

  b.  Whether the interest to be sold or transferred when added to any other interest owned by the proposed transferee constitutes fifty percent or more of the ownership interest in the franchise;

  c.  Whether the proposed transferee fails to satisfy any standards of the franchisor which are in fact normally relied upon by the franchisor prior to its entering into a franchise, and which are related to the proposed management or ownership of the franchise operations or to the qualification, capitalization, integrity or character of the proposed transferee which are reasonable;

  d.  Injury to the public welfare;

  e.  The harm to the franchisor;

  (8)  To prevent by contract or otherwise any motorcycle or all-terrain vehicle franchisee from changing the executive management of motorcycle or all-terrain vehicle franchisee's business, except that any attempt by a motorcycle or all-terrain vehicle franchisor to demonstrate by giving reasons that such change in executive management will be detrimental to the distribution of the motorcycle or all-terrain vehicle franchisor's motorcycles shall not constitute a violation of this subdivision;

  (9)  To impose unreasonable standards of performance upon a motorcycle or all-terrain vehicle franchisee;

  (10)  To require a motorcycle or all-terrain vehicle franchisee at the time of entering into a franchise arrangement to assent to a release, assignment, novation, waiver or estoppel which would relieve any person from liability imposed by sections 407.1025 to 407.1049;

  (11)  To prohibit directly or indirectly the right of free association among motorcycle or all-terrain vehicle franchisees for any lawful purpose;

  (12)  To provide any term or condition in any lease or other agreement ancillary or collateral to a franchise, which term or condition directly or indirectly violates the provisions of sections 407.1025 to 407.1049;

  (13)  Upon any termination, cancellation or refusal to continue any franchise or any discontinuation of any line-make or parts or products related to such line-make by a franchisor, fail to pay reasonable compensation to a franchisee as follows:

  (a)  Any new, undamaged and unsold motorcycles or all-terrain vehicles in the franchisee's inventory of either the current model year or purchased from the franchisor within one hundred twenty days prior to receipt of a notice of termination or nonrenewal, provided the motorcycle or all-terrain vehicle has less than twenty miles registered on the odometer, including mileage incurred in delivery from the franchisor or in transporting the motorcycle or all-terrain vehicle between dealers for sale, at the dealer's net acquisition cost;

  (b)  The current parts catalog cost to the dealer of each new, unused, undamaged and unsold part or accessory if the part or accessory is in the current parts catalog, less applicable allowances.  If the part or accessory was purchased by the franchisee from an outgoing authorized franchisee, the franchisor shall purchase the part for either the price in the current parts catalog or the franchisee's actual purchase price of the part, whichever is less;

  (c)  The depreciated value determined pursuant to generally accepted accounting principles of each undamaged sign owned by the franchisee which bears a trademark or trade name used or claimed by the franchisor if the sign was purchased from, or purchased at the request of, the franchisor;

  (d)  The fair market value of all special tools, data processing equipment and motorcycle or all-terrain vehicle service equipment owned by the franchisee which were recommended in writing and designated as special tools and equipment and purchased from, or purchased at the request of, the franchisor within three years of the termination of the franchise, if the tools and equipment are in usable and good condition, except for reasonable wear and tear; and

  (e)  The franchisor shall pay the franchisee the amounts specified in this subdivision within ninety days after the tender of the property subject to the franchisee providing evidence of good and clear title upon return of the property to the franchisor.  Unless previous arrangements have been made and agreed upon, the franchisee is under no obligation to provide insurance for the property left after one hundred eighty days;

  (14)  To prevent or refuse to honor the succession to a franchise or franchises by any legal heir or devisee under the will of a franchisee, under any written instrument filed with the franchisor designating any person as the person's successor franchisee, or pursuant to the laws of descent and distribution of this state; provided:

  (a)  Any designated family member of a deceased or incapacitated franchisee shall become the succeeding franchisee of such deceased or incapacitated franchisee if such designated family member gives the franchisor written notice of such family member's intention to succeed to the franchise or franchises within forty-five days after the death or incapacity of the franchisee, and agrees to be bound by all of the terms and conditions of the current franchise agreement, and the designated family member meets the current reasonable criteria generally applied by the franchisor in qualifying franchisees.  A franchisee may request, at any time, that the franchisor provide a copy of such criteria generally applied by the franchisor in qualifying franchisees;

  (b)  The franchisor may request from a designated family member such personal and financial data as is reasonably necessary to determine whether the existing franchise agreement should be honored.  The designated family member shall supply the personal and financial data promptly upon the request;

  (c)  If the designated family member does not meet the reasonable criteria generally applied by the franchisor in qualifying franchisees, the discontinuance of the current franchise agreement shall take effect not less than ninety days after the date the franchisor serves the required notice on the designated family member pursuant to subsection 5 of section 407.1031;

  (d)  The provisions of this subdivision shall not preclude a franchisee from designating any person as the person's successor by written instrument filed with the franchisor, and if such an instrument is filed, it alone shall determine the succession rights to the management and operation of the franchise; and

  (e)  For determining whether good cause exists, the administrative hearing commission shall take into consideration the existing circumstances, including, but not limited to, the following factors:

  a.  Whether the franchise agreement specifically permits the franchisor to approve or disapprove any successor;

  b.  Whether the proposed successor fails to satisfy any standards of the franchisor which are in fact normally relied upon by the franchisor prior to the successor entering into a franchise, and which relate to the proposed management or ownership of the franchise operation or to the qualification, capitalization, integrity or character of the proposed successor and which are reasonable;

  c.  Injury to the public welfare;

  d.  The harm to the franchisor;

  (15)  To coerce, threaten, intimidate or require a franchisee under any condition affecting or related to a franchise agreement, or to waive, limit or disclaim a right that the franchisee may have pursuant to the provisions of sections 407.1025 to 407.1049.  Any contracts or agreements which contain such provisions shall be deemed against the public policy of the state of Missouri and are void and unenforceable.  Nothing in this section shall be construed to prohibit voluntary settlement agreements;

  (16)  To initiate any act enumerated in this subsection on grounds that it has advised a franchisee of its intention to discontinue representation at the time of a franchisee change.

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(L. 1998 H.B. 1055 § 4)