§ 13-8-35 - Unfair methods of competition and unfair or deceptive acts or practices - Georgia Statutes

O.C.G.A. 13-8-35 (2010)
13-8-35. Unfair methods of competition and unfair or deceptive acts or practices

(a) It shall be deemed a violation of Code Section 13-8-34 for any manufacturer, factory branch, factory representative, or wholesaler to engage in any action which is arbitrary, in bad faith, or unconscionable and which causes damage in terms of law or equity to any of the parties or to the public.

(b) It shall be deemed a violation of Code Section 13-8-34 for a manufacturer, a factory branch or division, or officer, agent, or other representative thereof, to coerce, or attempt to coerce, any wholesaler:

(1) To order or accept delivery of any unit of farm equipment or implements or parts or accessories therefor, or any other commodity or commodities which such wholesaler has not voluntarily ordered; or

(2) To order or accept delivery of any farm equipment or implements with special features, accessories, or equipment not included in the base list price of such farm equipment or implements as publicly advertised by the manufacturer thereof.

(c) It shall be deemed a violation of Code Section 13-8-34 for a manufacturer, a factory branch or division, or officer, agent, or other representative thereof:

(1) To refuse to deliver in reasonable quantities and within a reasonable time after receipt of wholesaler's order to any wholesaler having a franchise or contractual agreement for the sale of farm equipment or implements sold by such manufacturer or factory branch or division any item of farm equipment covered by such franchise or contract specifically advertised or represented by such manufacturer or factory branch or division to be available for immediate delivery; provided, however, the failure to deliver any such unit of farm equipment or implements shall not be considered a violation of this article if such failure is due to prudent and reasonable restriction on extension of credit by the franchisor to the wholesaler, an act of God, work stoppage or delay due to a strike or labor difficulty, a bona fide shortage of materials, freight embargo, or other cause over which the manufacturer or any agent thereof shall have no control;

(2) To coerce or attempt to coerce any wholesaler to enter into any agreement, whether written or oral, supplementary to an existing franchise with such manufacturer, factory branch or division, or officer, agent, or other representative thereof; or to do any other act prejudicial to such wholesaler by threatening to cancel any franchise or any contractual agreement existing between such manufacturer or factory branch or division, and such wholesaler; provided, however, that notice in good faith to any wholesaler of such wholesaler's violation of any terms or provisions of such franchise or contractual agreement shall not constitute a violation of this article if such notice is in writing mailed by registered or certified mail or statutory overnight delivery to such wholesaler at his current business address;
(3)(A) To terminate or cancel the franchise or selling agreement of any such wholesaler without due cause, as defined in subparagraph (B) of this paragraph. The nonrenewal of a franchise or selling agreement, without due cause, shall constitute an unfair termination or cancellation, regardless of the specified time period of such franchise or selling agreement. Except where the grounds for such termination or cancellation fall within division (iii) of subparagraph (B) of this paragraph, such manufacturer or factory branch or division, or officer, agent, or other representative thereof shall notify a wholesaler in writing of the termination or cancellation of the franchise or selling agreement of such wholesaler at least 60 days before the effective date thereof, stating the specific grounds for such termination or cancellation; and in no event shall the contractual term of any such franchise or selling agreement expire without the written consent of the wholesaler involved prior to the expiration of at least 60 days following such written notice. During the 60 day period, either party may, in appropriate circumstances, petition a court to modify such 60 day stay or to extend it pending a final determination of such proceedings on the merits. The court shall have authority to grant preliminary and final injunctive relief.

(B) As used in this paragraph, tests for determining what constitutes due cause for a manufacturer to terminate, cancel, or refuse to renew a franchise agreement shall include whether the wholesaler:

(i) Has transferred an ownership interest in the business without the manufacturer's consent;

(ii) Has made a material misrepresentation in applying for or acting under the franchise agreement;

(iii) Has filed a voluntary petition in bankruptcy or has had an involuntary petition in bankruptcy filed against the wholesaler which has not been discharged within 30 days after the filing, is in default under the provisions of a security agreement in effect with the manufacturer, or is in receivership;

(iv) Has engaged in an unfair business practice;

(v) Has inadequately represented the manufacturer's products with respect to sales, service, or warranty work;

(vi) Has engaged in conduct which is injurious or detrimental to the public welfare;

(vii) Has inadequate sales and service facilities and personnel;

(viii) Has failed to comply with an applicable licensing law;

(ix) Has been convicted of a crime, the effect of which would be detrimental to the manufacturer or wholesale business;

(x) Has failed to operate in the normal course of business for seven consecutive business days;

(xi) Has relocated the wholesaler's place of business without the manufacturer's consent; or

(xii) Has failed to comply with the terms of the franchise agreement;

(4) To resort to or use any false or misleading advertisement in connection with his business as such manufacturer, or factory branch or division, or officer, agent, or other representative thereof;

(5) To offer to sell any unit of farm equipment or implements or parts or accessories therefor to any other wholesaler at a lower actual price therefor than the actual price offered to any other wholesaler for farm equipment or implement identically equipped; or to utilize any device including, but not limited to, sales promotion plans or programs which result in such lesser actual price; provided, however, the provisions of this paragraph shall not apply to sales to a wholesaler for resale to any unit of the United States government, the state, or any of its political subdivisions; and provided, further, that the provisions of this paragraph shall not apply so long as a manufacturer sells or offers to sell such new farm equipment or implement, parts, or accessories to all their franchised wholesalers at an equal price;

(6) To discriminate willfully, either directly or indirectly, in price, programs, or terms of sale offered to franchisees, where the effect of such discrimination may be to lessen competition substantially or to give to one holder of a franchise any business or competitive advantage not offered to all holders of the same or similar franchise;

(7) To prevent or attempt to prevent, by contract or otherwise, any wholesaler from changing the capital structure of his business or the means by or through which he finances the operation of his business, provided the wholesaler at all times meets any reasonable capital standards agreed to between the wholesaler and the manufacturer and provided such change by the wholesaler does not result in a change in the executive management of the wholesaler;

(8) To prevent or attempt to prevent, by contract or otherwise, any wholesaler or any officer, partner, or stockholder of any wholesaler from selling or transferring any part of the interest of any of them to any other person or persons or party or parties; provided, however, that no wholesaler, officer, partner, or stockholder shall have the right to sell, transfer, or assign the franchise or power of management or control thereunder without the consent of the manufacturer, except that such consent shall not be unreasonably withheld;

(9) To obtain money, goods, services, anything of value, or any other benefit from any other person with whom the wholesaler does business or employs on account of or in relation to the transactions between the wholesaler, the franchisor, and such other person; or

(10) To require a wholesaler to assent to a release, assignment, notation, waiver, or estoppel which would relieve any person from liability imposed by this article.

(d) It shall be deemed a violation of Code Section 13-8-34 for a wholesaler:

(1) To require a purchaser of any unit of farm equipment or implement, as a condition of sale and delivery thereof, also to purchase special features, appliances, equipment, parts, or accessories not desired or requested by the purchaser; provided, however, that this prohibition shall not apply to special features, appliances, equipment, parts, or accessories which are already installed when a unit of farm equipment or implement is received by the wholesaler from the manufacturer thereof;

(2) To represent and sell as new and unused any unit of farm equipment or implement which has been used and operated for demonstration or other purposes without stating to the purchaser the approximate amount of use the unit of farm machinery or implement has experienced; or

(3) To resort to or use any false or misleading advertisement in connection with his business as such wholesaler.