No distributor should ever be permitted to directly or indirectly own an interest in a dealership in Massachusetts, or be allowed to compete at the retail level, except in connection with a bona fide dealer development transaction. Nothing could dissuade a dealer from bringing suit and thus decline to pursue its remedies under Chapter 93B, than the realization that even if successful, its attorneys fees and legal costs may not be recoverable unless he can demonstrate that the distributor s or manufacturer s actions were taken in bad faith. The 1998 proposal also provided multiple damages in more egregious cases. Both elements have been dropped in the current proposal. The current proposal shifts the balance between dealers, distributors and manufacturers back to the manufacturers and distributors.
Bad faith is a concept that is subjective and difficult to prove.
Taken together with the requirement of a speedy trial which minimizes discovery opportunities, it is very unlikely that bad faith could be established. In a more serious vein, the chance that a dealer may be held liable for the attorneys' fees and legal expenses of the manufacturer or distributor may also persuade it although wronged not to sue. If the purpose behind a dealer franchise law is to eliminate the vast economic power of the distributor or manufacturer from the equation, the current Massachusetts proposal fails. It does not keep faith with the true purpose underlying the dealer franchise concept. So long as there is a dealer system in place, there must be a fair and even-handed franchise law.