Nebraska Statutes 60-1438.01. Manufacturer or distributor; restrictions with respect to franchises and consumer care or service facilities
(1) For purposes of this section, manufacturer or distributor includes (a) a factory representative or a distributor representative or (b) a person who is affiliated with a manufacturer or distributor or who, directly or indirectly through an intermediary, is controlled by, or is under common control with, the manufacturer or distributor. A person is controlled by a manufacturer or distributor if the manufacturer or distributor has the authority directly or indirectly, by law or by agreement of the parties, to direct or influence the management and policies of the person. A franchise agreement with a Nebraska-licensed dealer which conforms to and is subject to the Motor Vehicle Industry Regulation Act is not control for purposes of this section.
Terms Used In Nebraska Statutes 60-1438.01
- Acquire: when used in connection with a grant of power or property right to any person shall include the purchase, grant, gift, devise, bequest, and obtaining by eminent domain. See Nebraska Statutes 49-801
- Board: means the Nebraska Motor Vehicle Industry Licensing Board. See Nebraska Statutes 60-1401.06
- Community: means a franchisee's area of responsibility as stipulated in the franchise or, if the franchise fails to designate a community, (1) the community of the franchisee is the area surrounding the location of the franchisee in a five-mile radius from the dealership if the location is within a city of the metropolitan class and (2) the community of the franchisee is the county in which the franchisee is located if the location is not within a city of the metropolitan class. See Nebraska Statutes 60-1401.09
- Consumer care: means the performance, for the public, of necessary maintenance and repairs to motor vehicles. See Nebraska Statutes 60-1401.10
- Distributor: means a person, resident or nonresident of this state, who, in whole or in part, sells or distributes new motor vehicles, trailers, or motorcycles to dealers or who maintains distributors or representatives who sell or distribute motor vehicles, trailers, or motorcycles to dealers and also has the same meaning as the term franchisor. See Nebraska Statutes 60-1401.13
- Distributor representative: means a representative employed by a distributor or distributor branch for the same purpose as set forth in the definition of factory representative. See Nebraska Statutes 60-1401.14
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Factory representative: means a representative employed by a person who manufactures or assembles motor vehicles, motorcycles, or trailers, or by a factory branch, for the purpose of promoting the sale of its motor vehicles, motorcycles, or trailers to, or for supervising or contacting, its dealers or prospective dealers in this state. See Nebraska Statutes 60-1401.17
- Franchise: means a contract between two or more persons when all of the following conditions are included:
(1) A commercial relationship of definite duration or continuing indefinite duration is involved. See Nebraska Statutes 60-1401.19
- Franchisee: means a new motor vehicle dealer who receives motor vehicles from the franchisor under a franchise and who offers and sells such motor vehicles to the general public. See Nebraska Statutes 60-1401.20
- Line-make: means a collection of models, series, or groups of motor vehicles manufactured by or for a particular manufacturer, distributor, or importer that are offered for sale, lease, or distribution pursuant to a common brand name or mark, except that:
(1) Multiple brand names or marks may constitute a single line-make, but only when included in a common dealer agreement and the manufacturer, distributor, or importer offers such vehicles bearing the multiple names or marks together only, and not separately, to its authorized dealers. See Nebraska Statutes 60-1401.22
- Manufacturer: means any person, resident or nonresident of this state, who is engaged in the business of distributing, manufacturing, or assembling a line-make of new motor vehicles, trailers, or motorcycles and distributes them directly or indirectly through one or more distributors to one or more new motor vehicle, trailer, or motorcycle dealers in this state and also has the same meaning as the term franchisor. See Nebraska Statutes 60-1401.24
- Motor vehicle: means any vehicle for which evidence of title is required as a condition precedent to registration under the laws of this state but does not include trailers. See Nebraska Statutes 60-1401.25
- Person: means every natural person, firm, partnership, limited liability company, association, or corporation. See Nebraska Statutes 60-1401.31
- Precedent: A court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way.
- State: when applied to different states of the United States shall be construed to extend to and include the District of Columbia and the several territories organized by Congress. See Nebraska Statutes 49-801
(2) Except as provided in this section, a manufacturer or distributor shall not directly or indirectly:
(a) Own an interest in a franchise, franchisee, or consumer care or service facility, except that a manufacturer or distributor may hold stock in a publicly held franchise, franchisee, or consumer care or service facility so long as the manufacturer or distributor does not by virtue of holding such stock operate or control the franchise, franchisee, or consumer care or service facility;
(b) Operate or control a franchise, franchisee, or consumer care or service facility; or
(c) Act in the capacity of a franchisee or motor vehicle dealer.
(3) A manufacturer or distributor may own an interest in a franchisee or otherwise control a franchise for a period not to exceed twelve months after the date the manufacturer or distributor acquires the franchise if:
(a) The person from whom the manufacturer or distributor acquired the franchise was a franchisee; and
(b) The franchise is for sale by the manufacturer or distributor.
(4) For purposes of broadening the diversity of its franchisees and enhancing opportunities for qualified persons who lack the resources to purchase a franchise outright, but for no other purpose, a manufacturer or distributor may temporarily own an interest in a franchise if the manufacturer’s or distributor’s participation in the franchise is in a bona fide relationship with a franchisee and the franchisee:
(a) Has made a significant investment in the franchise, which investment is subject to loss;
(b) Has an ownership interest in the franchise; and
(c) Operates the franchise under a plan to acquire full ownership of the franchise within a reasonable time and under reasonable terms and conditions.
(5) On a showing of good cause by a manufacturer or distributor, the board may extend the time limit set forth in subsection (3) of this section. An extension may not exceed twelve months. An application for an extension after the first extension is granted is subject to protest by a franchisee of the same line-make whose franchise is located in the same community as the franchise owned or controlled by the manufacturer or distributor.
(6) The prohibition in subdivision (2)(b) of this section shall not apply to any manufacturer of manufactured housing, recreational vehicles, or trailers.
(7) The prohibitions set forth in subsection (2) of this section shall not apply to a manufacturer that:
(a) Does not own or operate more than two such dealers or dealership locations in this state;
(b) Owned, operated, or controlled a warranty repair or service facility in this state as of January 1, 2016;
(c) Manufactures engines for installation in a motor-driven vehicle with a gross vehicle weight rating of more than sixteen thousand pounds for which motor-driven vehicle evidence of title is required as a condition precedent to registration under the laws of this state, if the manufacturer is not otherwise a manufacturer of motor vehicles; and
(d) Provides to dealers on substantially equal terms access to all support for completing repairs, including, but not limited to, parts and assemblies, training and technical service bulletins, and other information concerning repairs that the manufacturer provides to facilities owned, operated, or controlled by the manufacturer.