Beck Chevrolet v. General Motors

13‐4066 (L)
Beck Chevrolet v. General Motors
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2014 3
(Argued: October 6, 2014 Final Submission: October 7, 2016 4
Decided: December 29, 2016) 5
Docket Nos. 13‐4066, 13‐4310 6
7
Beck Chevrolet Co., Inc., 8
Plaintiff–Appellant‐Cross‐Appellee, 9
v. 10
General Motors LLC, 11
Defendant–Appellee‐Cross‐Appellant. 12
13
Before: S ACK, L IVINGSTON, and L OHIER, Circuit Judges. 14
The plaintiff, a motor vehicle dealer, appeals from a July 13, 2012, order 15
granting summary judgment to the defendant, a motor vehicle manufacturer, 16
and a September 30, 2013, final judgment denying the plaintiffʹs two remaining 17
claims, both entered by the United States District Court for the Southern District 18
of New York (Alvin K. Hellerstein, Judge). We previously concluded that the 19
plaintiffʹs appeal raised two important questions of unsettled New York law as to 20
the proper application of sections 463(2)(gg) and 463(2)(ff) of New Yorkʹs 21
Franchised Motor Vehicle Dealer Act (the ʺDealer Actʺ), and certified those 22

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questions to the New York Court of Appeals. Beck Chevrolet Co., Inc. v. Gen. 1
Motors LLC, 787 F.3d 663, 682 (2d Cir. 2015). The Court of Appeals accepted the 2
certification and responded that: (1) the defendantʹs performance standard is 3
ʺunreasonableʺ and ʺunfairʺ under Dealer Act section 463(2)(gg) because it fails 4
to account for local brand popularity; and (2) a change to a dealerʹs Area of 5
Geographic Sales and Service Advantage (ʺAGSSAʺ) constitutes a ʺmodificationʺ 6
to the franchise agreement, which is prohibited by Dealer Act section 463(2)(ff) if 7
it is ʺunfairʺ and ʺmay substantially and adversely affect the . . . dealerʹs rights, 8
obligations, investment or return on investment.ʺ Beck Chevrolet Co., Inc. v. Gen. 9
Motors LLC, 27 N.Y.3d 379, 391‐92, 396‐97, 53 N.E.3d 706, 713‐15, 717, 33 N.Y.S.3d 10
829, 836‐38, 840 (2016) (ʺBeck IIʺ), reargument denied, 27 N.Y.3d 1187, 59 N.E.3d 11
1208, 38 N.Y.S.3d 96 (2016). 12
In light of these rulings, we REVERSE the district courtʹs judgment in favor 13
of the defendant on the plaintiffʹs section 463(2)(gg) claim, VACATE the district 14
courtʹs judgment in favor of the defendant on the plaintiffʹs section 463(2)(ff) 15
claim, and REMAND for further proceedings and the entry of judgment. 16
RUSSELL P. MCRORY, Arent Fox LLP, 17
New York, New York, for Plaintiff– 18
Appellant‐Cross‐Appellee. 19

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Nos. 13‐4066, 13‐4310
Beck Chevrolet v. General Motors
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JAMES C. MCGRATH, Seyfarth Shaw LLP, 1
Boston, Massachusetts, for Defendant– 2
Appellee‐Cross‐Appellant. 3
PER C URIAM : 4
This is the second occasion on which we are called upon to address the 5
appeal of plaintiff‐appellant Beck Chevrolet Co., Inc. (ʺBeckʺ) from two 6
judgments by the United States District Court for the Southern District of New 7
York (Alvin K. Hellerstein, Judge) in favor of defendant‐appellee General Motors 8
LLC (ʺGMʺ). The underlying facts and procedural history of this case are set 9
forth at length in Beck Chevrolet Co., Inc. v. Gen. Motors LLC, 787 F.3d 663, 666‐71 10
(2d Cir. 2015) (ʺBeck Iʺ). We repeat them here only insofar as we think it helpful 11
to the reader in understanding the discussion that follows. 12
Beck initially appealed from the district courtʹs (1) grant of summary of 13
judgment for GM on Beckʹs claim seeking monetary relief under section 463(2)(a) 14
of New Yorkʹs Franchised Motor Vehicle Dealer Act (the ʺDealer Actʺ), codified 15
at N.Y. V EH . & TRAF. L AW §§ 460‐473; (2) grant of summary judgment for GM on 16
Beckʹs claim seeking injunctive relief under section 463(2)(ff) of the Dealer Act; 17
(3) entry of judgment for GM, following a bench trial, on Beckʹs claim seeking 18
injunctive relief under section 463(2)(gg) of the Dealer Act; and (3) denial of 19

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Beck Chevrolet v. General Motors
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Beckʹs application for costs and attorneyʹs fees. In our previous opinion in this 1
matter, we affirmed the district courtʹs grant of summary judgment dismissing 2
Beckʹs section 463(2)(a) claim and its denial of Beckʹs fees application. Beck I, 787 3
F.3d at 678‐79.1 With respect to the district courtʹs disposition of Beckʹs claims 4
under sections 463(2)(gg) (prohibiting the ʺuse [of] an unreasonable, arbitrary or 5
unfair sales or other performance standard in determining a franchised motor 6
vehicle dealerʹs compliance with a franchise agreementʺ) and 463(2)(ff) 7
(prescribing limits on the ability of a franchisor to ʺmodify the franchise of a[] 8
franchised motor vehicle dealerʺ), however, we determined that ʺNew York state 9
law is insufficiently developed in these areas to enable us to predict with 10
confidence how the New York Court of Appeals would resolve these questions.ʺ 11
Id. at 666; see also id. at 672‐78. We therefore certified to the Court of Appeals two 12
questions concerning the proper scope and application of these Dealer Act 13
provisions. Id. at 682. 14
The Court of Appeals accepted our certified questions and, on May 3, 2016, 15
issued a response.2 Beck Chevrolet Co., Inc. v. Gen. Motors LLC, 27 N.Y.3d 379, 53 16
1 We also affirmed the district courtʹs dismissal of GMʹs counterclaim for rescission
and the various evidentiary rulings challenged by the parties. Beck I, 787 F.3d at 679‐81.
2 On October 7, 2016, the parties submitted supplemental letter briefs.

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N.E.3d 706, 33 N.Y.S.3d 829 (2016) (ʺBeck IIʺ), reargument denied, 27 N.Y.3d 1187, 1
59 N.E.3d 1208, 38 N.Y.S.3d 96 (2016). Equipped with this guidance, we now 2
return to the remaining issues on appeal. 3
I. Reasonableness of GMʹs Performance Standard 4
Section 463(2)(gg) of the Dealer Act provides that ʺ[i]t shall be unlawful for 5
any franchisor, notwithstanding the terms of any franchise contract . . . [t]o use 6
an unreasonable, arbitrary or unfair sales or other performance standard in 7
determining a franchised motor vehicle dealerʹs compliance with a franchise 8
agreement.ʺ N.Y. V EH . & TRAF. L AW § 463(2)(gg). Beck alleged that the statewide 9
average GM uses to determine expected sales performance for its dealers (the 10
ʺRetail Sales Indexʺ or ʺRSIʺ) is ʺunreasonableʺ and ʺunfairʺ because it adjusts for 11
certain local characteristics, but does not account for local variations in brand 12
popularity. The district court disagreed and, following a bench trial, ruled in 13
GMʹs favor on Beckʹs claim for injunctive relief under this section.3 Beck 14
appealed. 15
3 The district court also granted GMʹs motion for summary judgment on Beckʹs claim
for damages under this section on the ground that Beck had not established damages in
connection with this claim. Beck conceded that its section 463(2)(gg) claim ʺsound[s] in
injunction, not money damages.ʺ Russell P. McCrory Decl. at ¶ 18, Beck Chevrolet Co.,

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Recognizing the competing policy considerations at issue and the absence 1
of existing guidance from the New York Court of Appeals, we certified the 2
following question for its determination: 3
Is a performance standard that requires ʺaverageʺ performance 4
based on statewide sales data in order for an automobile dealer to 5
retain its dealership ʺunreasonable, arbitrary, or unfairʺ under New 6
York Vehicle & Traffic Law section 463(2)(gg) because it does not 7
account for local variations beyond adjusting for the local popularity 8
of general vehicle types? 9
Beck I, 787 F.3d at 676; see also id. at 682. 10
At GMʹs request, the Court of Appeals reformulated the question to read: 11
Is a performance standard that uses ʺaverageʺ performance based on 12
statewide sales data in order to determine an automobile dealerʹs 13
compliance with a franchise agreement ʺunreasonable, arbitrary or 14
unfairʺ under New York Vehicle and Traffic Law § 463(2)(gg) 15
because it does not account for local variations beyond adjusting for 16
the local popularity of general vehicle types? 17
Beck II, 27 N.Y.3d at 389, 53 N.E.3d at 712, 33 N.Y.S.3d at 835. 18
The Court of Appeals answered the question thus reformulated in the 19
affirmative. It reasoned that, ʺ[a]t a minimum, [section] 463(2)(gg) forbids the 20
use of standards not based in fact or responsive to market forces because 21
performance benchmarks that reflect a market different from the dealerʹs sales 22
Inc. v. Gen. Motors LLC, No. 11‐cv‐2856 (S.D.N.Y. Mar. 19, 2012), ECF No. 45. We do not
understand it to challenge this ruling on appeal.

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area cannot be reasonable or fair.ʺ Id. at 390–91, 53 N.E.3d at 713, 33 N.Y.S.3d at 1
836. Therefore, it instructed, ʺ[t]o comply with the Dealer Act, if a franchisor 2
intends to measure a dealerʹs performance based on a comparison to statewide 3
data for other dealers, then the comparison data must take into account the 4
market‐based challenges that affect dealer success.ʺ Id. at 392, 53 N.E.3d at 714, 5
33 N.Y.S.3d at 837. 6
Applying these principles to the facts of this case, the Court of Appeals 7
concluded that GMʹs RSI is unlawful: 8
[O]nce GM determined that statewide raw data must be adjusted to 9
account for customer preference as a measure of dealer sales 10
performance, GMʹs exclusion of local brand popularity or import 11
bias rendered the standard unreasonable and unfair because these 12
preference factors constitute market challenges that impact a dealerʹs 13
sales performance differently across the state. It is unlawful under 14
section 463(2)(gg) to measure a dealerʹs sales performance by a 15
standard that fails to consider the desirability of the Chevrolet brand 16
itself as a measure of a dealerʹs effort and sales ability. 17
Id. at 391, 53 N.E.3d at 714, 33 N.Y.S.3d at 837. 18
In light of this ruling, the district courtʹs judgment in favor of GM on 19
Beckʹs section 463(2)(gg) claim must be reversed.4 We therefore reverse the 20
4 GM argues that the Court of Appealsʹs decision is ʺnot dispositiveʺ of this issue
because the Court of Appeals concluded only that it would be unlawful for GM to
determine a dealerʹs compliance with its sales performance obligations based solely on
the RSI, whereas the district court found that GM considers the RSI as well as ʺother

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district courtʹs judgment and remand with a direction to enter judgment for Beck 1
on this claim and to order injunctive relief consistent with the New York Court of 2
Appealsʹs answer to our certified question. We leave it to the district court, in its 3
discretion, to determine whether this decision justifies reconsideration of its 4
denial of Beckʹs fees application. 5
II. Modification of the Franchise Agreement 6
Beck also appeals from the district courtʹs grant of summary judgment for 7
GM on Beckʹs claim that changes to its Area of Geographic Sales and Service 8
Advantage (ʺAGSSAʺ) constituted an ʺunfairʺ ʺmodificationʺ of its franchise 9
relevant factors.ʺ Def. Supp. Letter Br. at 1‐2, Beck Chevrolet Co., Inc. v. Gen. Motors LLC,
No. 13‐4066 (2d Cir. Oct. 7, 2016), ECF No. 159. But the Court of Appeals anticipated
and rejected this argument by reformulating, and broadening, the question this Court
certified to it. See Beck II, 27 N.Y.3d at 388‐89, 53 N.E.3d at 712, 33 N.Y.S.3d at 835
(noting that ʺthe first certified question [was] predicated on the incorrect presumption
that GM terminates all dealers who have a below‐average sales performance, when, in
fact, GM bases termination on the RSI and other relevant factorsʺ). Accordingly, the
Court of Appeals determined that it is unlawful not only to terminate a dealer on the
basis of a below‐average RSI, but also to ʺuseʺ that standard—alone or in connection
with other metrics—to assess an automobile dealerʹs compliance with its franchise
agreement. Id. at 389, 391, 53 N.E.3d at 712, 714, 33 N.Y.S.3d at 835, 837.
GM also argues that the district courtʹs factual findings show that GMʹs use of the RSI
was fair and reasonable ʺin this case.ʺ Def. Supp. Letter Br. at 6, Beck Chevrolet Co., Inc. v.
Gen. Motors LLC, No. 13‐4066 (2d Cir. Oct. 7, 2016), ECF No. 159 (emphasis in original).
But the Court of Appeals eschewed such an ʺas‐appliedʺ analysis, concluding that the
RSI is ʺfacially unreasonable, arbitrary or unfair without reference to facts particular to
any individual dealer.ʺ Beck II, 27 N.Y.3d at 389, 53 N.E.3d at 712, 33 N.Y.S.3d at 835.

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agreement, in violation of Dealer Act section 463(2)(ff). That section provides 1
that it is 2
unlawful for any franchisor, notwithstanding the terms of any 3
franchise contract . . . [t]o modify the franchise of any franchised 4
motor vehicle dealer unless the franchisor notifies the . . . dealer, in 5
writing, . . . at least ninety days before the effective date thereof, 6
stating the specific grounds for such modification. 7
N.Y. V EH . & TRAF. LAW § 463(2)(ff)(1). It defines ʺmodificationʺ as ʺany change or 8
replacement of any franchise if such change or replacement may substantially 9
and adversely affect the new motor vehicle dealerʹs rights, obligations, 10
investment or return on investment.ʺ Id. § 463(2)(ff)(2). 11
The Dealer Act permits a franchisee, upon receiving notice of an intended 12
modification, to challenge the modification as ʺunfair,ʺ thereby shifting to the 13
franchisor ʺthe burden of proving that such modification is fair and not 14
prohibited.ʺ Id. § 463(2)(ff)(3). ʺA modification is deemed unfair if it is not 15
undertaken in good faith; is not undertaken for good cause; or would adversely 16
and substantially alter the rights, obligations, investment or return on investment 17
of the franchised motor vehicle dealer under an existing franchise agreement.ʺ 18
Id. 19

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Nos. 13‐4066, 13‐4310
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The district court concluded that GMʹs revision of Beckʹs AGSSA did not 1
constitute a ʺmodificationʺ of the franchise agreement because that agreement 2
expressly reserved to GM the power to make such a revision. It denied Beckʹs 3
claim for injunctive relief under section 463(2)(ff) on that basis. On review, we 4
voiced skepticism as to whether the Dealer Act permits franchisors to thus 5
circumvent the Actʹs protections by retaining unilateral discretion to revise 6
specified elements of the franchise agreement. See Beck I, 787 F.3d at 677. Noting 7
the absence of any state appellate court decisions indicating how the New York 8
Court of Appeals would rule on this issue, we certified the following question for 9
its determination: 10
Does a change to a franchiseeʹs Area of Primary Responsibility or 11
AGSSA constitute a prohibited ʺmodificationʺ to the franchise under 12
section 463(2)(ff), even though the standard terms of the Dealer 13
Agreement reserve the franchisorʹs right to alter the Area of Primary 14
Responsibility or AGSSA in its sole discretion? 15
Id. at 677‐78; see also id. at 682. 16
The Court of Appeals responded that a change in the AGSSA constitutes a 17
ʺmodification . . . to the franchiseʺ within the meaning of section 463(2)(ff) 18
because it ʺhas the potential to significantly impact the franchise agreement.ʺ 19
Beck II, 27 N.Y.3d at 395‐96, 53 N.E.3d at 716‐17, 33 N.Y.S.3d at 839‐40. The Court 20
of Appeals explained that ʺa franchisor may not insulate itself from the 21

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requirements and proscriptions of section 463(2)(ff) by contractually reserving in 1
the [franchise agreement] the power to revise an AGSSA, as GM did in this case.ʺ 2
Id. at 396, 53 N.E.3d at 717, 33 N.Y.S.3d at 840. ʺTo the extent section 463(2) 3
makes unlawful certain franchisor abuses, ʹnotwithstanding the terms of any 4
franchise contract,ʹ [it] abrogates contract principles which traditionally bind the 5
parties to their agreements.ʺ Id. at 395, 53 N.E.3d at 716‐17, 33 N.Y.S.3d at 839‐40. 6
ʺOtherwise,ʺ the Court of Appeals reasoned, ʺa franchisor with superior 7
bargaining power could easily circumvent the purpose of the Dealer Act by 8
reserving the right to change franchise terms at will, even where a change results 9
in significant adverse [e]ffects on the dealer.ʺ Id. at 396, 53 N.E.3d at 717, 33 10
N.Y.S.3d at 840. 11
That does not end the inquiry, however, because, as the Court of Appeals 12
emphasized, section 463(2)(ff) prohibits only those modifications that ʺʹmay 13
substantially and adversely affect the new motor vehicle dealerʹs rights, 14
obligations, investment or return on investment.ʹʺ Id. (quoting N.Y. V EH . & TRAF. 15
L AW § 463(2)(ff)(2)). Moreover, to be unlawful under the Dealer Act, a 16
modification ʺmust be deemed unfair, meaning ʹit is not undertaken in good 17
faith; is not undertaken for good cause; or would adversely and substantially 18

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alter the rights, obligations, investment or return on investment of the franchised 1
motor vehicle dealer under an existing franchise agreement.ʹʺ Id. (quoting N.Y. 2
V EH . & TRAF. L AW § 463(2)(ff)(3)). Therefore, the Court of Appeals concluded, ʺa 3
revision of the AGSSA is not perforce violative of section 463(2)(ff). Rather, such 4
change must be assessed on a case‐by‐case basis, upon consideration of the 5
impact of the revision on a dealerʹs position.ʺ Id. at 397, 53 N.E.3d at 717, 33 6
N.Y.S.3d at 840 (emphasis added). 7
GM acknowledges that the Court of Appealsʹs answer to our certified 8
question undermines the legal basis for the district courtʹs dismissal of Beckʹs 9
section 463(2)(ff) claim. See Def.ʹs Supp. Letter Br. at 7 n.3, Beck Chevrolet Co., Inc. 10
v. Gen. Motors LLC, No. 13‐4066 (2d Cir. Oct. 7, 2016), ECF No. 159. GM argues 11
that we should nonetheless affirm the entry of summary judgment in its favor 12
because ʺBeck failed to offer any evidence suggesting that GMʹs [revision of its 13
AGSSA] . . . was undertaken in bad faith or without good cause, or would 14
substantially and adversely affect[] Beckʹs interests.ʺ Id. at 7. But because the 15
district court concluded that GMʹs revision of the AGSSA was not a franchise 16
ʺmodificationʺ within the meaning of the Dealer Act, it did not determine 17
whether that modification was ʺunfairʺ and thus prohibited by the statute. We 18

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therefore vacate the district courtʹs judgment and remand for it to resolve this 1
issue in the first instance, consistent with the legal principles set forth in the New 2
York Court of Appealsʹs answer to our second certified question. See Prats v. Port 3
Auth. of N.Y. & N.J., 350 F.3d 58, 59 (2d Cir. 2003) (ʺAs a general rule, ʹa federal 4
appellate court does not consider an issue not passed uponʹ by the district court.ʺ 5
(quoting SEC v. Monarch Funding Corp., 192 F.3d 295, 308 (2d Cir. 1999))). 6
We express no view on how the district court should resolve this matter. 7
We merely conclude that, in light of the New York Court of Appealsʹs answer to 8
our certified question, the district courtʹs judgment can no longer stand. Should 9
this matter come before this Court again, the Court will review the district courtʹs 10
decision under the ordinarily applicable standards of deference. 11
CONCLUSION 12
For the foregoing reasons, we REVERSE the district courtʹs judgment in 13
favor of GM on Beckʹs section 463(2)(gg) claim, VACATE the district courtʹs 14
judgment in favor of GM on Beckʹs section 463(2)(ff) claim, and REMAND to that 15
court for further proceedings and the entry of judgment consistent with this 16
opinion and the New York Court of Appealsʹs answers to our certified questions. 17

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