Representing a Florida dealer, BSM attorneys Richard Sox and Kirby Bissell, have filed a federal lawsuit challenging Mazda’s Brand Experience Program 2.0. The lawsuit alleges that the new program, which is a revised version of the first Brand Experience Program, is (i) a prohibited adverse modification of the Mazda franchise; (ii) a violation of Florida’s factory incentive provision; and (iii) a violation of the federal Robinson-Patman Act.
The Brand Experience Program 2.0 establishes a multi-tiered per vehicle incentive program based upon the dealership’s facility type. A dealership which is dualed with another brand will be at a $1,200 per vehicle disadvantage over dealers who provide exclusive and imaged facilities while an exclusive dealership than is not fully imaged will be at a $900 competitive disadvantage. However, for many dealers, the size of their market cannot justify providing an exclusive and/or fully imaged Mazda dealership facility. In that circumstance, Florida law, along with the law of several other states, prohibits the practice of paying differing per vehicle incentive amounts to dealers. Likewise, under the federal Robinson-Patman Act, a manufacturer is prohibited from withholding incentives from a dealer if the conditions to obtain the incentive are not reasonably and practically available to the dealer.