Bruce W. Haffey, Board of Directors

Update: Fall Conference of the National Association of Dealer Counsel in Chicago

I recently attended the Fall Conference of the National Association of Dealer Counsel in Chicago. The programs were timely, interesting and informative. We’ll provide greater depth in future posts, but there were interesting programs about the effect on dealerships of the VW emissions scandal, dealership compliance with data protection laws, direct and indirect regulation of financing by the Consumer Financial Protection Bureau (CFPB), and the use of personal goodwill to reduce taxes in a dealership buy-sell. Lots of good stuff.

Bruce W. Haffey to attend the NADC Fall Conference

I will attend the National Association of Dealer Counsel fall conference in Chicago next week. I expect to hear a lot about the VW Emissions Scandal and its effect on dealers, an update on the dealership buy-sell environment and other important and timely topics. I will report some of the highlights next week after the conference.
Click here to view the 2015 NADC Fall Conference Schedule

FRANCHISORS BEWARE: PENDING MAINE LEGISLATION WILL MAKE FRANCHISE LIFE MORE DIFFICULT

Whether headquartered in Michigan or elsewhere, a difficult aspect of franchising, for the franchisor, is the need to understand and comply with the laws of each state or country in which franchises are to be marketed, sold or located. Some states have franchise laws, others do not. Of those that do, the laws vary from state to state. This typically results in having to develop a franchise agreement with a separate addendum for each state to address any peculiarities of the state’s franchise law.  A recent proposal in Maine illustrates the problem.

A bill pending in the Maine legislature seeks to provide enhanced protection for franchisees. The bill would, among other things:

  • Make a franchisor liable for damages to a franchisee for developing a new outlet or location that has a material adverse impact on the franchisee;
  • Prohibit the termination or refusal to renew a franchise except for good cause;
  • Require a minimum of 90 days’ notice and 60 days to cure a default by the franchisee prior to termination or refusal to renew a franchise;
  • Prohibit any increase in royalties, advertising fees or other fees upon renewal of a franchise;
  • Prohibit a post-termination covenant not to compete;
  • Restrict the ability of a franchisor to sell a franchise system; and
  • Limit the amount of post-termination damages recoverable from a franchisee.

The wisdom of many of these protections is debatable, and that debate is currently ongoing in Maine’s legislature. What is not subject to debate is the fact that many of these provisions go far beyond what is required in other states, and would require franchisors to implement unique operational processes for their Maine operations.  It is possible that if this legislation is enacted some franchise systems may choose not to locate there, as the benefits of a relatively small market may be far outweighed by the costs of compliance.

Franchise matters require careful and well informed legal counsel. For assistance with franchise or distribution issues, please contact Bruce W. Haffey at (248) 457-7000 or bhaffey@gmhlaw.com

Internet Sales Tax Ripe For Passage?

Like most states, Michigan imposes a sales tax on the retail sale of tangible goods.  The tax is imposed on the retailer.

Since the 1967 U.S. Supreme Court case of National Bellas Hess v. Illinois Department of Revenue, a state cannot impose the tax an out-of-state retailer with no contacts to the state.  Since then, brick and mortar retailers have suffered a competitive disadvantage to out-of-state catalog retailers selling into the state.

For many years, this was not a compelling issue, since the out-of-state sales were largely catalog sales, and they did not account for a significant fraction of overall sales.  As internet sales have exploded in recent years, and in an environment in which state governments seek additional tax revenue, pressure has intensified to rectify this bias.

Prior efforts have been unsuccessful, but bills currently pending in the U.S. Congress seem to have better prospects for passage.  The Marketplace Fairness Act (MFA) is scheduled for a Senate vote on Monday, May 6.  Depending upon the Senate action, the corresponding bill is expected to be taken up by the House of Representatives.

Under the MFA, states may begin to elect sales tax on the first day of the calendar quarter at least 90 days after the date of enactment.  The 22 states that are “full members” of the Streamlined Sales and Use Tax Agreement (SSUTA) (Michigan is a full member), may begin to collect sales tax immediately, and there is a mechanism for other states to participate.  There is an exception for “Small Sellers” with total “remote sales” of less than $1,000,000 in the United States in the preceding calendar year.

Although those opposed to this legislation try to characterize it as a tax increase, it is merely a mechanism to collect tax due under current statutes.  Recent discussion in the media indicates there is a reasonable chance this legislation will pass.  Those engaged in retail sales of goods, stay tuned.

Bruce W. Haffey is part of the Business Practice Group of Giarmarco, Mullins and Horton, P.C., with special expertise in tax law, as well as general corporate law, mergers and acquisitions and franchise and distribution law.  For more information, you may contact him directly at (248) 457-7140 or bhaffey@gmhlaw.com.

FCPA SUCCESSOR LIABILITY IN CROSS-BORDER ACQUISITIONS

An important consideration when purchasing a business is protection against successor liability.  In cross-border acquisitions, successor liability under the Foreign Corrupt Practices Act (FCPA) is a growing concern.

The FCPA prohibits bribery of foreign officials for the purpose of getting or keeping business.  The definition of foreign officials if broad, and the act covers improper payments by agents, consultants and certain third parties working on a company’s behalf.  Penalties are severe and may include criminal sanctions.  Other consequences may include suspension or debarment from conducting business, loss of certain licenses and exposure to shareholder lawsuits.

It is not sufficient for the buyer to adopt FCPA compliance programs for the company following the closing.  Liability may extend to pre-closing activities.  Therefore, thorough due diligence is critical to avoid “buying an FCPA violation.”

International transactions are increasingly common in this global economy.  If you are considering a transaction, detailed planning, due diligence and assistance from professional advisors are vital to achieving success.

Mr. Haffey is a shareholder and member of the Board of Directors of Giarmarco, Mullins & Horton, P.C.  He has been recognized as a Michigan Superlawyer, a “Top Lawyer” by dbusiness magazine, and a “Top Attorney in Michigan” by the New York Times.