CSSB 176(L&C) am: "An Act prohibiting certain coercive activity by distributors; relating to certain required distributor payments and purchases; prohibiting distributors from requiring certain contract terms as a condition for certain acts related to distributorship and ancillary agreements; allowing dealers to bring certain court actions against distributors for certain relief; and exempting from the provisions of the Act franchises regulated by the federal Petroleum Marketing Practices Act, situations regulated by the Alaska gasoline products leasing act, and distributorship agreements relating to motor vehicles required to be registered under AS 28.10."
00 CS FOR SENATE BILL NO. 176(L&C) am 01 "An Act prohibiting certain coercive activity by distributors; relating to certain 02 required distributor payments and purchases; prohibiting distributors from requiring 03 certain contract terms as a condition for certain acts related to distributorship and 04 ancillary agreements; allowing dealers to bring certain court actions against distributors 05 for certain relief; and exempting from the provisions of the Act franchises regulated by 06 the federal Petroleum Marketing Practices Act, situations regulated by the Alaska 07 gasoline products leasing act, and distributorship agreements relating to motor vehicles 08 required to be registered under AS 28.10." 09 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 * Section 1. AS 45.45 is amended by adding new sections to read: 11 Article 9A. Distributorships. 12 Sec. 45.45.700. Coercion of dealer. (a) A distributor may not coerce or
01 attempt to coerce a dealer to perform certain acts by using duress or by threatening to 02 terminate the distributorship agreement or another agreement between the distributor 03 and the dealer. 04 (b) In this section, "certain acts" means 05 (1) the purchase or acceptance of delivery of merchandise that has not 06 been ordered by the dealer; 07 (2) the assignment, sale, or disposal of a contract or property; or 08 (3) the expenditure of money. 09 Sec. 45.45.710. Disposition of merchandise remaining upon contract 10 termination. (a) If a dealer maintains a stock of merchandise supplied for the 11 dealer's resale under a distributorship agreement and if the distributor or the dealer 12 terminates the distributorship agreement, the distributor shall, unless the dealer 13 chooses to keep the merchandise, pay the dealer for the merchandise that was 14 purchased from the distributor and that is held by the dealer on the date of the 15 termination an amount equal to 16 (1) 100 percent of the net cost of the merchandise that is current and 17 unused and for which the retailer has paid the distributor, plus 100 percent of the 18 transportation charges paid by the dealer to return the merchandise to the distributor; 19 (2) 85 percent of the current net price, as listed in the current price list 20 or catalog of the distributor, for repair parts, including superseded parts; and 21 (3) five percent of the current net price of repair parts to cover the 22 handling, packing, and transportation of the repair parts back to the distributor. 23 (b) Upon payment of the amounts required by (a) of this section, the title to 24 the merchandise passes to the distributor making the payment, and the distributor is 25 entitled to the possession of the merchandise for which the payment was made. 26 (c) In (a) of this section, if a repair part is not listed in a current price list or 27 catalog of the distributor, the current net price is the higher of the original purchase 28 price or the latest price published by the distributor for the repair part if a dealer has 29 actual proof of the purchase of the repair part from the distributor and if the repair part 30 was purchased within 10 years before the termination. 31 Sec. 45.45.720. Time for payment. A distributor shall make the payments to
01 the dealer under AS 45.45.710 not later than three months after the date the agreement 02 is terminated. When the payment is made, the distributor shall provide the dealer with 03 a final detailed statement of account for the merchandise. 04 Sec. 45.45.730. Death of distributor. Unless the distributorship agreement is 05 continued by the personal representative, heirs, or devisees of the individual, upon the 06 death of an individual who is a dealer or holds a majority interest in a dealer, a 07 distributor who supplied merchandise to the dealer shall repurchase from the personal 08 representative, heirs, or devisees the merchandise that was purchased from the 09 distributor and that remains when the distributorship agreement is terminated under 10 this section. To repurchase under this section, the distributor shall pay an amount 11 equal to the amount identified under AS 45.45.710(a) and (c), and the repurchase is 12 subject to AS 45.45.720. In this section, "devisee," "heir," and "personal 13 representative" have the meanings given in AS 13.06.050. 14 Sec. 45.45.740. Required purchase, reimbursement, and supplies. (a) In 15 addition to any purchase of merchandise required by AS 45.45.710, if a distributor 16 terminates a distributorship agreement or changes the competitive situation of the 17 distributor's dealer with regard to distribution of the merchandise or services that are 18 the subject of the distribution agreement, the distributor shall 19 (1) purchase that portion of the dealer's business covered by the 20 distributorship agreement or affected by the change, including good will, assets, and 21 machinery, at commercially reasonable business valuations; and 22 (2) reimburse the dealer for the expenses that were incurred by the 23 dealer 24 (A) for that portion of the dealer's business covered by the 25 distributorship agreement; and 26 (B) during the 18 months before the termination or change. 27 (b) In this section, "change" does not include making a price change that 28 affects similarly situated dealers equally. 29 Sec. 45.45.750. Prohibited terms. (a) A distributor may not require a dealer 30 to agree to any of the following terms in a distributorship agreement, or in another 31 agreement that is ancillary to a distributorship agreement, as a condition of an offer,
01 grant, or renewal of a distributorship agreement or ancillary agreement: 02 (1) a requirement that the distributor waive a trial by jury in court 03 cases involving the distributor; 04 (2) a requirement that disputes between the distributor and the dealer 05 be submitted to arbitration or to any other binding alternate dispute resolution 06 procedure, except authorization for the submission of a dispute to arbitration or to 07 binding alternative dispute resolution if the distributor and dealer voluntarily agree to 08 submit the dispute to arbitration or binding alternative dispute resolution when the 09 dispute arises; 10 (3) a requirement that the dealer pay the attorney fees of the 11 distributor; 12 (4) a requirement that prohibits a firearms dealer from selling firearms 13 or related accessories whose sale is otherwise legal, but which the firearms distributor 14 does not manufacture or distribute; or 15 (5) a requirement that the agreement be subject to the laws of a state 16 other than Alaska. 17 (b) The provisions of (a) of this section do not apply to an agreement where a 18 lease or sale of real property is the main purpose of the agreement. 19 Sec. 45.45.760. Civil action. (a) A dealer may bring an action in court 20 against a distributor if the distributor engages in activity prohibited under this chapter. 21 (b) In an action brought under (a) of this section, the dealer may obtain one or 22 more of the following types of relief that apply to the specific action of the dealer: 23 (1) damages suffered by the dealer as a result of the activity; 24 (2) an injunction enjoining the distributor from engaging in the 25 activity; 26 (3) a requirement that the distributor make a payment or a purchase 27 required by this chapter; 28 (4) any other relief determined by the court to be appropriate under the 29 circumstances. 30 (c) In this section, "activity prohibited under this chapter" means 31 (1) coercion or attempted coercion under AS 45.45.700;
01 (2) terminating a distributorship agreement without paying the dealer 02 as required by AS 45.45.710; 03 (3) failing to pay the dealer within the time established by 04 AS 45.45.720; 05 (4) failing to provide the statement of account as required by 06 AS 45.45.720; 07 (5) failing to make a repurchase payment required by AS 45.45.730; 08 (6) failing to repurchase merchandise as required by 09 AS 45.45.740(a)(1); 10 (7) failing to make the reimbursement required by AS 45.45.740(a)(2); 11 or 12 (8) violating AS 45.45.750. 13 Sec. 45.45.770. Exemption. AS 45.45.700 - 45.45.790 do not apply to 14 (1) a distributorship agreement that would be considered a franchise 15 regulated by 15 U.S.C. 2801 - 2841 (Petroleum Marketing Practices Act); 16 (2) a situation regulated by AS 45.50.800 - 45.50.850; or 17 (3) a distributorship agreement for the sale, repair, or servicing of 18 motor vehicles that are required to be registered under AS 28.10. 19 Sec. 45.45.790. Definitions. In AS 45.45.700 - 45.45.790, 20 (1) "dealer" means a person who enters into a distributorship 21 agreement and who, under the agreement, receives merchandise or services from a 22 distributor; 23 (2) "distributor" means a person who enters into a distributorship 24 agreement and who, under the agreement, provides merchandise or services to a 25 dealer; the term includes 26 (A) a wholesaler; 27 (B) a manufacturer; 28 (C) a person that is a parent corporation or an affiliated 29 corporation of a person identified in (A) or (B) of this paragraph; and 30 (D) a field representative, an officer, an agent, or another direct 31 or indirect representative of a person identified in (A), (B), or (C) of this
01 paragraph; 02 (3) "distributorship agreement" means an agreement, whether express, 03 implied, oral, or written, between two or more persons 04 (A) by which a person receives the right to 05 (i) sell or lease merchandise or services at retail or 06 wholesale; or 07 (ii) use a trade name, trademark, service mark, 08 logotype, advertising, or other commercial symbol; and 09 (B) in which the parties to the agreement have a joint interest, 10 whether equal or unequal, in the offering, selling, or leasing of the merchandise 11 or services; 12 (4) "merchandise" includes parts and accessories; 13 (5) "terminate" includes failing to renew. 14 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 15 read: 16 APPLICABILITY. This Act applies to a distributorship agreement that is entered into 17 on or after the effective date of this Act.