HCS CSSB 176(RLS): "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 making exemptions that relate to the federal Petroleum Marketing Practices Act, situations regulated by the Alaska Gasoline Products Leasing Act, distributorship agreements relating to motor vehicles required to be registered under AS 28.10, activities and agreements by persons licensed under AS 04, contracts between persons licensed under AS 04 and out-of-state persons in the alcoholic beverage industry, distributorship agreements involving cigarettes, food, drink, or components of food or drink, manufacturers with 50 or fewer employees, suppliers, manufacturers, importers, and wholesalers of alcoholic beverages."
00 HOUSE CS FOR CS FOR SENATE BILL NO. 176(RLS) 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 making exemptions that relate to the federal Petroleum 06 Marketing Practices Act, situations regulated by the Alaska Gasoline Products Leasing 07 Act, distributorship agreements relating to motor vehicles required to be registered 08 under AS 28.10, activities and agreements by persons licensed under AS 04, contracts 09 between persons licensed under AS 04 and out-of-state persons in the alcoholic beverage 10 industry, distributorship agreements involving cigarettes, food, drink, or components of 11 food or drink, manufacturers with 50 or fewer employees, suppliers, manufacturers, 12 importers, and wholesalers of alcoholic beverages." 13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:
01 * Section 1. AS 45.45 is amended by adding new sections to read: 02 Article 9A. Distributorships. 03 Sec. 45.45.700. Coercion of dealer. (a) A distributor may not coerce or 04 attempt to coerce a dealer to perform certain acts by using duress or by threatening to 05 terminate the distributorship agreement or another agreement between the distributor 06 and the dealer. 07 (b) In this section, "certain acts" means 08 (1) the purchase or acceptance of delivery of merchandise that has not 09 been ordered by the dealer; 10 (2) the assignment, sale, or disposal of a contract or property; or 11 (3) making an expenditure that the dealer has not contracted to make. 12 Sec. 45.45.710. Disposition of merchandise remaining upon contract 13 termination. (a) If a dealer maintains a stock of merchandise supplied for the 14 dealer's resale under a distributorship agreement and if the distributor or the dealer 15 terminates the distributorship agreement, the distributor shall, unless the dealer 16 chooses to keep the merchandise, pay the dealer for the merchandise that was 17 purchased from the distributor and that is held by the dealer on the date of the 18 termination an amount equal to 19 (1) the fair market value for merchandise that is unused and for which 20 the retailer has paid the distributor, plus 100 percent of the transportation charges paid 21 by the dealer to return the merchandise to the distributor; in this paragraph, 22 (A) "fair market value" means the amount the distributor would 23 realize from the sale of the merchandise to another retailer using reasonable 24 good faith efforts; 25 (B) "unused" means unopened merchandise that is still in the 26 original factory packaging or container; 27 (2) 85 percent of the current net price, as listed in the current price list 28 or catalog of the distributor, for repair parts, including superseded parts; and 29 (3) five percent of the current net price of repair parts to cover the 30 handling, packing, and transportation of the repair parts back to the distributor.
01 (b) Upon payment of the amounts required by (a) of this section, the title to 02 the merchandise passes to the distributor making the payment, and the distributor is 03 entitled to the possession of the merchandise for which the payment was made. 04 (c) In (a) of this section, if a repair part is not listed in a current price list or 05 catalog of the distributor, the current net price is the higher of the fair market value or 06 the latest price published by the distributor for the repair part if a dealer has actual 07 proof of the purchase of the repair part from the distributor and if the repair part was 08 purchased within 10 years before the termination. 09 Sec. 45.45.720. Time for payment. A distributor shall make the payments to 10 the dealer under AS 45.45.710 not later than three months after the date the agreement 11 is terminated. When the payment is made, the distributor shall provide the dealer with 12 a final detailed statement of account for the merchandise. 13 Sec. 45.45.730. Death or disability of dealer or holder of majority interest 14 in dealer. Unless the distributorship agreement is continued by the personal 15 representative, an heir, a devisee, or another successor in interest of the individual, 16 upon the death or disability of an individual who is a dealer or holds a majority 17 interest in a dealer, a distributor who supplied merchandise to the dealer shall 18 repurchase from the personal representative, heir, devisee, or other successor in 19 interest the merchandise that was purchased from the distributor and that remains 20 when the distributorship agreement is terminated under this section. To repurchase 21 under this section, the distributor shall pay an amount equal to the amount identified 22 under AS 45.45.710(a) and (c), and the repurchase is subject to AS 45.45.720. In this 23 section, "devisee," "heir," and "personal representative" have the meanings given in 24 AS 13.06.050. 25 Sec. 45.45.740. Required purchase, reimbursement, and supplies. (a) In 26 addition to any purchase of merchandise required by AS 45.45.710, if a distributor 27 terminates a distributorship agreement or makes substantial changes in the competitive 28 situation of the distributor's dealer with regard to distribution of the merchandise or 29 services that are the subject of the distribution agreement, the distributor shall 30 (1) purchase that portion of the dealer's business directly affected by 31 the distributorship agreement or the change, including assets and machinery, at
01 commercially reasonable business valuations; and 02 (2) reimburse the dealer for the expenses that were necessarily incurred 03 by the dealer 04 (A) for that portion of the dealer's business covered by the 05 distributorship agreement; and 06 (B) during the 12 months before the termination or change. 07 (b) In this section, "change" does not include making a price change that 08 affects similarly situated dealers equally. 09 Sec. 45.45.750. Prohibited terms. (a) A distributor may not require a dealer 10 to agree to any of the following terms in a distributorship agreement, or in another 11 agreement that is ancillary to a distributorship agreement, as a condition of an offer, 12 grant, or renewal of a distributorship agreement or ancillary agreement: 13 (1) a requirement that the dealer waive a trial by jury in court cases 14 involving the distributor; 15 (2) a requirement that disputes between the distributor and the dealer 16 be submitted to arbitration or to any other binding alternate dispute resolution 17 procedure, except authorization for the submission of a dispute to arbitration or to 18 binding alternative dispute resolution if the distributor and dealer voluntarily agree to 19 submit the dispute to arbitration or binding alternative dispute resolution when the 20 dispute arises; 21 (3) a requirement that the dealer pay the attorney fees of the 22 distributor; 23 (4) a requirement that prohibits a firearms dealer from selling firearms 24 or related accessories, the sale of which is otherwise legal, but which the firearms 25 distributor does not manufacture or distribute; or 26 (5) a requirement that the agreement be subject to the laws of a state 27 other than Alaska. 28 (b) The provisions of (a) of this section do not apply to an agreement where a 29 lease or sale of real property is the main purpose of the agreement. 30 Sec. 45.45.760. Civil action. (a) A dealer may bring an action in court 31 against a distributor if the distributor engages in activity prohibited under this chapter.
01 (b) In an action brought under (a) of this section, the dealer may obtain one or 02 more of the following types of relief that apply to the specific action of the dealer: 03 (1) damages suffered by the dealer as a result of the activity; 04 (2) an injunction enjoining the distributor from engaging in the 05 activity; 06 (3) a requirement that the distributor make a payment or a purchase 07 required by this chapter; 08 (4) any other relief determined by the court to be appropriate under the 09 circumstances. 10 (c) In this section, "activity prohibited under this chapter" means 11 (1) coercion or attempted coercion under AS 45.45.700; 12 (2) terminating a distributorship agreement without paying the dealer 13 as required by AS 45.45.710; 14 (3) failing to pay the dealer within the time established by 15 AS 45.45.720; 16 (4) failing to provide the statement of account as required by 17 AS 45.45.720; 18 (5) failing to make a repurchase payment required by AS 45.45.730; 19 (6) failing to make a purchase as required by AS 45.45.740(a)(1); 20 (7) failing to make the reimbursement required by AS 45.45.740(a)(2); 21 or 22 (8) violating AS 45.45.750. 23 Sec. 45.45.770. Exemptions. (a) AS 45.45.700 - 45.45.790 do not apply to 24 (1) a distributorship agreement that would be considered a franchise 25 regulated by 15 U.S.C. 2801 - 2841 (Petroleum Marketing Practices Act); 26 (2) a situation regulated by AS 45.50.800 - 45.50.850; 27 (3) a distributorship agreement, including a franchise agreement, for 28 the sale, repair, or servicing of motor vehicles that are required to be registered under 29 AS 28.10; 30 (4) an activity or agreement by a person licensed under AS 04 if the 31 activity or agreement is within the scope of the license or is incidental to the activity
01 or agreement that is within the scope of the license; 02 (5) a distributorship agreement or another contract between a person 03 licensed under AS 04 and a distributor, manufacturer, importer, supplier, or wholesaler 04 of alcoholic beverages who is not located in this state if the subject of the agreement 05 or contract is the distribution of alcoholic beverages to the licensed person by the 06 distributor, manufacturer, importer, supplier, or wholesaler; 07 (6) a distributor, manufacturer, importer, supplier, or wholesaler of 08 alcoholic beverages; 09 (7) a distributorship agreement for the sale or distribution of, or other 10 transaction involving, cigarettes, food, drink, or a component of food or drink; in this 11 paragraph, "cigarette" has the meaning given in AS 43.50.170; or 12 (8) a manufacturer with 50 or fewer employees. 13 (b) In (a) of this section, "alcoholic beverage" has the meaning given in 14 AS 04.21.080. 15 Sec. 45.45.790. Definitions. In AS 45.45.700 - 45.45.790, 16 (1) "dealer" means a person who enters into a distributorship 17 agreement and who, under the agreement, receives merchandise or services from a 18 distributor; 19 (2) "distributor" means a person who enters into a distributorship 20 agreement and who, under the agreement, provides merchandise or services to a 21 dealer; the term includes 22 (A) a wholesaler; 23 (B) a manufacturer; 24 (C) a person that is a parent corporation or an affiliated 25 corporation of a person identified in (A) or (B) of this paragraph; and 26 (D) a field representative, an officer, an agent, or another direct 27 or indirect representative of a person identified in (A), (B), or (C) of this 28 paragraph; 29 (3) "distributorship agreement" means an agreement, whether express, 30 implied, oral, or written, between two or more persons 31 (A) by which a person receives the right to
01 (i) sell or lease merchandise or services at retail or 02 wholesale; or 03 (ii) use a trade name, trademark, service mark, 04 logotype, advertising, or other commercial symbol; and 05 (B) in which the parties to the agreement have a joint interest, 06 whether equal or unequal, in the offering, selling, or leasing of the merchandise 07 or services; 08 (4) "merchandise" includes parts and accessories; 09 (5) "terminate" includes failing to renew. 10 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 11 read: 12 APPLICABILITY. This Act applies to a distributorship agreement that is entered into 13 on or after the effective date of this Act.