NY Alcoh Bev Ctrl L § 55-C (2021)
2021 New York Laws ABC - Alcoholic Beverage Control Article 4 - Special Provisions Relating to Beer 55-C - Agreements Between Brewers and Beer Wholesalers.

§  55-c.  Agreements between brewers and beer wholesalers. 1. Purpose. It is hereby declared to be the policy of this state, that the sale  and delivery  of  beer by brewers to beer wholesalers shall be pursuant to a written agreement. That further, the regulation  of  business  relations between brewers and beer wholesalers is necessary and appropriate to the general economy and tax base of this state and in the public interest.   2.  Definitions.  As  used  in this section, the following words shall have the following meanings:  (a) "Agreement" means any contract, agreement, arrangement, course  of dealing   or  commercial  relationship  between  a  brewer  and  a  beer wholesaler pursuant to which a beer wholesaler is granted the  right  to purchase,  offer  for sale, resell, warehouse or physically deliver beer sold by a brewer.  (b) "Brewer" means any person or entity engaged primarily in  business as  a  brewer,  manufacturer of alcoholic beverages, importer, marketer, broker or agent of any of the foregoing who sells or offers to sell beer to a beer wholesaler in this state or any successor to a brewer.  (c) "Successor to a brewer" means any person or entity which  acquires the  business  or beer brands of a brewer, without limitation, by way of the purchase, assignment, transfer, lease, or license or disposition  of all  or  a  portion of the assets, business or equity of a brewer in any transaction, including merger, corporate reorganization or consolidation or the  formation  of  a  partnership,  joint  venture  or  other  joint marketing alliance.  (d)   "Beer  wholesaler"  and  "wholesaler"  means  the  holder  of  a wholesaler's license pursuant to section fifty-three of this article who purchases, offers to sell, resells,  markets,  promotes,  warehouses  or physically distributes beer sold by a brewer.  (e) "Good cause" means and shall be limited to:  (i)  (A)  The  implementation  by  a  brewer of a national or regional policy of  consolidation  which  is  reasonable,  nondiscriminatory  and essential.    Such  policy  shall  have  been  previously  disclosed, in writing, in reasonable detail to the  brewer's  wholesalers,  and  shall result  in  a  contemporaneous  reduction  in  the  number of a brewer's wholesalers not only for a brand in this state, but also for a brand  in contiguous  states  or  in  a majority of the states in which the brewer sells the brand. All affected wholesalers and affected brewers shall  be afforded  ninety days prior notice of the implementation of such policy, and such notice shall  be  provided  by  the  brewer  implementing  said policy.  Further, an affected wholesaler who has actual knowledge of the intended  implementation  of such policy shall also notify each affected brewer.  The term "affected brewers" means all  other  brewers  with  an agreement   with  an  affected  wholesaler  who  is  a  multiple  brands wholesaler. The term "affected wholesalers" means  wholesalers  who  may reasonably  be  expected to experience a loss or diminishment of a right to distribute a brand, in whole or  in  part,  as  a  consequence  of  a proposed consolidation policy.  (B)  An  affected  brewer  receiving notice pursuant to this paragraph may, within  one  hundred  twenty  days  after  receiving  such  notice, terminate  an  agreement with a multiple brands wholesaler in the event: (1) the total  case  purchases  computed  in  twenty-four  twelve  ounce equivalence  units  by  the  wholesaler  of the products of the affected brewer  amounted  to  two  percent  or  less  of  the  multiple   brands wholesaler's total sales volume during the twelve month period preceding the notice; and (2) the affected brewer, prior to such termination, pays compensation to the multiple brands wholesaler.  (ii)  There  is  a  failure  by  the  beer wholesaler to comply with a material term of an agreement required  by  subdivision  three  of  this  section  between  the brewer and beer wholesaler, provided that: (A) the wholesaler was given written notice by the  brewer  of  the  failure  to comply  with  the  agreement as provided for in subdivision five of this section  and in which the brewer states with particularity the basis for the brewer's determination of non-compliance, and upon the  wholesaler's written request within ten days of receipt of the notice, the brewer has supplemented  such notice by submitting to the wholesaler in writing the brewer's recommended plan of  corrective  action  to  cure  the  claimed defaults  or  deficiencies  in  a  manner  satisfactory  to  it; (B) the wholesaler was afforded a reasonable opportunity to  assert  good  faith efforts  to  comply with the agreement by curing the claimed defaults or deficiencies specified in said notice within the time  provided  for  in clause  (C)  of  this  subparagraph; and (C) the wholesaler was afforded fifteen days after receipt of such notice to submit a  written  plan  of corrective  action  to  comply  with the agreement by curing the claimed non-compliance and seventy-five days  to  cure  such  non-compliance  in accordance  with  the plan. Provided, however, that such period for cure may be increased or reduced to a commercially reasonable  period  by  an order  of  a  court  in  this state entered after a hearing at which the brewer has the burden  to  demonstrate  that  the  claimed  defaults  or deficiencies  can  be  substantially  rectified  in  the  period of time afforded the wholesaler or that, after receipt of notice of  default  or deficiency  as  provided  for  in  subdivision five of this section, the wholesaler has intentionally engaged in an affirmative course of conduct in which the brewer's current marketing plans and  other  trade  secrets are  disclosed  to a third party without the prior consent of the brewer or in which the wholesaler acts or threatens  to  act  to  significantly impair,  harm  or  dilute  the reputation or competitive position of the brewer or  otherwise  irreparably  injure  the  brewer,  its  brands  or trademarks.  Provided,  further  however:  (1) that such period for cure need not exceed forty-five days if within the twelve months  immediately following  a cure, the wholesaler intentionally engages in conduct which repeats the same specified default and deficiency which the  brewer  had deemed  cured;  and  (2) that such period for cure need not exceed sixty days in the event that during the  twelve  month  period  preceding  the notice,  the  total  case  purchases  by  the wholesaler of the affected products of the brewer account for less than one-half of one percent  of the  wholesaler's  aggregate  case  purchases  from  all  sources or one thousand cases. For purposes of  this  subdivision,  case  purchases  of affected  products  whether  package  or  draught  shall  be computed in twenty-four twelve ounce equivalence units.  (f)  "Good  faith"  means  honesty  in  fact  and  the  observance  of reasonable commercial standards in the trade.  (g)  "Material modification" of an agreement or to "materially modify" means  and  includes  a  substantial  and  significant  change  in   the competitive circumstances under which the agreement was entered into and is  performed  which  is caused by a brewer without fault on the part of the wholesaler.  (h) "Multiple brands wholesaler" means a wholesaler which pursuant  to agreements  with different brewers holds the rights to purchase, resell, warehouse or physically  deliver  two  or  more  competing  products  in substantially the same geographic area or to the same customer class.  (i)  "Fair  market  value  of  distribution rights" means the amount a willing seller, under no compulsion to sell, would be willing to  accept and  a  willing buyer, under no compulsion to purchase, would be willing to pay for the distribution rights.   3. Written agreement required. Except as provided for  in  subdivision ten  of this section, beer offered for sale in this state by a brewer to  a beer wholesaler shall be sold and  delivered  pursuant  to  a  written agreement  which  conforms  to  the provisions of this section and which sets forth all essential and material terms, requirements, standards  of performance and conditions of the business relationship between a brewer and  a  beer  wholesaler.  Such  agreement may be cancelled, terminated, materially modified or not renewed for good cause  as  defined  in  this section, provided the brewer has acted in good faith.   4.  Termination  for  cause and opportunity to cure. (a) No brewer may cancel, fail to renew,  or  terminate  an  agreement  unless  the  party intending  such  action has good cause for such cancellation, failure to renew, or termination and in any case in  which  prior  notification  is required  under  this  section, the party intending to act has furnished said prior notification as provided for  in  subdivision  five  of  this section  and  the  wholesaler  has  failed  to  cure  such  defaults  or deficiencies after a period for cure, as provided for in clause  (C)  of subparagraph (ii) of paragraph (e) of subdivision two of this section.  (b)  No brewer shall amend or materially modify or otherwise terminate any essential and material term or requirement of  an  agreement  unless the  brewer has good cause therefor and has furnished the affected party with at least fifteen days prior notification as required by subdivision five of this section.  (c) Notwithstanding any provision of this subdivision to the contrary:  (i) Any brewer with an annual volume as defined in  subparagraph  (iv) of  this  paragraph  of less than three hundred thousand barrels of beer and whose sales to an affected beer wholesaler are three percent or less of the beer wholesaler's total  annual  brand  sales  measured  in  case equivalent  sales  of  twenty-four--twelve  ounce units may terminate an agreement with any beer wholesaler without having good  cause  for  such termination,  as  defined  in  paragraph  (e) of subdivision two of this section, and shall not be subject to liability to  the  beer  wholesaler under  paragraph (b) of subdivision seven of this section provided that, prior to the effective date of the termination, the brewer pays the beer wholesaler the fair market value of the distribution rights  which  will be  lost  or diminished by reason of the termination. If such brewer and beer wholesaler cannot mutually agree to the fair market  value  of  the applicable  distribution  rights  lost  or  diminished  by reason of the termination, then the brewer shall pay the beer wholesaler a good  faith estimate of the fair market value of the applicable distribution rights.  (ii) If the beer wholesaler being terminated under subparagraph (i) of this  paragraph  disputes  that  the payment made by the brewer was less than the fair market value of the distribution  rights,  then  the  beer wholesaler may within forty-five days of termination submit the question of  fair  market  value  of  the  applicable distribution rights lost or diminished by reason of the termination to binding arbitration before  a panel  of  three  neutral  arbitrators  appointed in accordance with the commercial arbitration rules of the  American  Arbitration  Association, which  panel  shall  determine by majority decision whether the brewer's payment meets the requirements of subparagraph (i) of this paragraph. If the arbitration panel rules that the payment made by the brewer  to  the beer  wholesaler upon termination was less than the fair market value of distribution rights lost or diminished by  reason  of  the  termination, then  the brewer must pay the beer wholesaler the difference between the payment made to the beer wholesaler and the determined fair market value plus interest. If the arbitration panel rules that the payment  made  by the  brewer  to  the  beer wholesaler upon termination was more than the fair market value of distribution rights lost or diminished by reason of the termination, then the  beer  wholesaler  must  pay  the  brewer  the difference  between  the  payment  made  to  the beer wholesaler and the  determined fair market value plus interest.  All  arbitration  fees  and expenses  shall  be equally divided among the parties to the arbitration except if the arbitration panel determines  that  the  brewer's  payment upon termination was not a good faith estimate of the fair market value, then  the  panel  may award up to one hundred percent of the arbitration costs to the brewer.  (iii) Notwithstanding any provision of this section to  the  contrary, for  purposes of this paragraph, the term "brewer" shall mean any person or entity engaged primarily in business as a brewer or  manufacturer  of beer.  (iv) For the purpose of this paragraph, the term "annual volume" shall mean:  (1)  the  aggregate  number  of barrels of beer, under trademarks owned by that brewery and brewed,  directly  or  indirectly,  by  or  on behalf  of the brewer during the measuring period, on a worldwide basis, plus (2) the aggregate number of barrels  of  beer  brewed,  during  the measuring  period, directly or indirectly, by or on behalf of any person or entity which, at any time during the  measuring  period,  controlled, was  controlled  by  or  was  under common control with the brewer, on a worldwide basis. Annual volume  shall  not  include  beer  brewed  under contract  for any other brewer. There shall be no double counting of the same barrels of beer under clauses one and two of this subparagraph.  (v) For the purposes of this paragraph, the  term  "measuring  period" shall  mean  the  twelve month calendar period immediately preceding the date notice of termination, as required under subparagraph (i)  of  this paragraph, was given by a brewer to the beer wholesaler.   5.  Notice  of  default  or  deficiency.  (a)  Except  as  provided in paragraph (d) of this subdivision, no brewer may cancel, fail  to  renew or terminate an agreement unless the brewer or beer wholesaler furnished prior notification in accordance with paragraph (c) of this subdivision.  (b)  Notwithstanding  any  agreement, no brewer or beer wholesaler may materially amend or modify an essential and material term or requirement unless the brewer or beer wholesaler  furnished  prior  notification  in accordance with paragraph (c) of this subdivision.  (c)  The  notification  required  under paragraphs (a) and (b) of this subdivision shall be in writing  and  sent  to  the  affected  party  by certified mail. Such notification shall contain:  (i)  a  statement of intent to cancel, not renew, otherwise terminate, materially amend or modify an agreement;  (ii) a statement of all reasons therefor, stated  with  particularity; and  (iii) the date on which such action shall take effect.  (d) A brewer or beer wholesaler may cancel, fail to renew or otherwise terminate   an  agreement  without  furnishing  the  prior  notification required under this section only:  (i) in the event the affected party has made  an  assignment  for  the benefit  of creditors or similar disposition of all or substantially all of the assets of such party's business;  (ii) in the event of a conviction or plea of guilty or no contest to a felony which in the reasonable judgment  of  the  brewer  may  adversely affect the goodwill or interests of the wholesaler or brewer;  (iii) in the event of the revocation or suspension for thirty-one days or  more  of  any  license  or permit required of the wholesaler for the normal operation of its business;  (iv) in the event there was fraudulent conduct  on  the  part  of  the brewer or beer wholesaler in its dealings with the other party;  (v)  in  the event of the failure by either party to pay sums of money to the other party when due or if either the wholesaler or brewer  takes any  action  which  would  provide  grounds  for  immediate  termination  pursuant to the reasonable terms  of  a  written  enforceable  agreement between   them,   which  was  freely  entered  into  without  threat  of termination or other coercion or compulsion and was in  full  force  and effect  sixty days from the effective date of the chapter of the laws of nineteen hundred ninety-seven which amended this subparagraph;  (vi) in the event the brewer and beer wholesaler voluntarily agree  in writing to terminate the agreement.   6. Right of action. If a brewer fails to comply with the provisions of this  section,  a beer wholesaler may maintain a civil action in a court of competent jurisdiction within this state  for  damages  sustained  in accordance  with  the laws of this state which shall govern all disputes arising under an agreement or by reason of its making  and  performance. In  any  such  action  the  court  may grant such equitable relief as is necessary or appropriate, considering the purposes of this  section,  to remedy  the effects of any failure to comply with the provisions of this section or  the  effects  of  conduct  prohibited  hereunder,  including declaratory  judgment,  mandatory  or  prohibitive injunctive relief, or preliminary or other interim equitable relief; provided,  however,  that permanent  injunctive  relief  shall  not  be  granted  to  prohibit the effectiveness of  a  termination  or  non-renewal  of  an  agreement  in furtherance  of  a  policy  of  consolidation that is in compliance with subparagraph (i) of paragraph (e) of subdivision two of this section. In any legal action challenging any cancellation, termination or failure to renew, or where an issue is the brewer's compliance with the  provisions of subparagraph (i) of paragraph (e) of subdivision two of this section, the brewer shall have the burden of proof that its action was based upon good  cause, provided however, the wholesaler shall retain the burden of proof in all other respects. The rights and remedies  provided  in  this section  to a beer wholesaler with respect to an agreement with a brewer and to an affected wholesaler or an affected brewer shall be intended to supplement and not be exclusive of any  rights  and  remedies  otherwise available pursuant to any other statute, or at law or equity.   7.  Reasonable  compensation.  (a)  Any  brewer  who shall implement a national or regional consolidation policy,  pursuant  to  this  section, shall  not  terminate its relationship with an affected wholesaler until compensation as provided for in this subdivision  has  been  paid.  Such brewer  shall  pay the affected beer wholesaler the fair market value of the distribution rights which will be lost or diminished  by  reason  of the  implementation  of  such  policy, together with fair and reasonable compensation for other damages sustained.  (b) Every brewer who without good cause amends,  cancels,  terminates, materially modifies or fails to renew any agreement, or who in violation of  this section causes a beer wholesaler to resign from an agreement or denies or withholds consent to any assignment, transfer  or  sale  of  a beer  wholesaler's  business  assets or capital stock or other equity or debt securities, shall pay the affected beer wholesaler the fair  market value  of the beer wholesaler's business, including distribution rights, which have been lost  or  diminished  as  the  result  of  the  brewer's actions.  (c) In the event that the brewer and the beer wholesaler are unable to agree  on  the  compensation  to  be  paid  for  the  value  of the beer wholesaler's business and assets, the matter may  with  the  consent  of both  the  brewer  and  the  beer  wholesaler, be submitted to a neutral arbitrator to be selected by the parties; if they cannot agree  on  such an  arbitrator,  the  same  shall  be  selected by a judge of a court of competent jurisdiction. No brewer or beer wholesaler may impose  binding arbitration  of  any  issue  as  a  term  or  condition of an agreement. Arbitration costs shall be equally divided by the  beer  wholesaler  and  the brewer. The award of the arbitrator shall be confirmed by a court of competent  jurisdiction  in  this  state, the judgment of which shall be binding.   8.  Sale  and  transfer of beer wholesaler's business. No brewer shall unreasonably withhold or delay its approval of any assignment,  sale  or transfer  of all or any portion of beer wholesaler's corporate equity or debt or assets, including the beer wholesaler's rights  and  obligations under  the  terms  of an agreement, whenever the person or persons to be substituted meet objectively reasonable standards imposed by the brewer. A wholesaler who sells, assigns or transfers an agreement made  pursuant to this section shall provide written notice of such sale, assignment or transfer to all other brewers with whom it has entered agreements.   9.  (a) A brewer qualified to do business in the state of New York may hold an interest in a limited partnership licensed by the authority as a wholesaler, when the brewer or its affiliate is a  limited  partner  and the  beer  wholesaler  is the general partner. Notwithstanding any other provision of law, such brewer may loan money to a general partner of  an aforementioned limited partnership. Provided, however, any brewer or its affiliate who holds an interest in a limited partnership licensed by the authority  as  a  wholesaler  or who loans money to a general partner of such limited partnership may only exercise such control of the  business as permitted by section 121-303 of the partnership law.  (b)  Notwithstanding subdivision (a) of this subdivision, no brewer or its affiliate may acquire or hold an interest in  or  loan  money  to  a general  partner  of  a  multiple brands wholesaler unless and until all other brewers having agreements with  said  multiple  brands  wholesaler have  been  afforded  sixty  days prior written notice of the particular terms and conditions of the limited partnership or loan agreement or  of any  change therein. A "loan" for purposes of this subdivision shall not include  bona  fide  credit  terms  for  product  purchases  customarily extended by a brewer to wholesalers in the normal course of business.  (c)  For  one  hundred  twenty days after the formation, licensing and commencement of operations as a beer wholesaler of a limited partnership or the  making  of  a  loan,  and  upon  at  least  fifteen  days  prior notification  as  required by subdivision five of this section, a brewer may terminate an agreement with a  multiple  brands  wholesaler  in  the event: (i) a competing brewer or its affiliate becomes a limited partner with  or  loans  money  to  a  general  partner  of  a  multiple  brands wholesaler, (ii) by reason of said  loan,  the  performance  of  a  loan agreement,  or the terms or conduct of the limited partnership, there is a reasonable likelihood that competition between brands of the competing brewers  has  been  or  may  be  significantly  reduced  in  a  relevant geographic  area  or  market,  and  (iii)  in  lieu  of other rights and remedies it might have under this chapter to terminate for  good  cause, the   terminating  brewer  pays  compensation  to  the  multiple  brands wholesaler.   10. Coverage. (a) This section shall not apply to  written  agreements that  were  in  effect prior to the effective date of this section which set forth all terms and conditions of  material  significance  governing the  relationship  between the brewer and beer wholesaler, including but not limited to the grounds and procedures which govern: (i)  termination of  the  relationship;  (ii) approval and disapproval of managers; (iii) change in ownership; and (iv) whether or not the wholesaler is  entitled to  compensation in the event the wholesaler is terminated for deficient performance under  such  agreement  or  without  good  cause.  Provided, however,  that  this  section shall apply to any agreement entered into, and renewals, extensions, amendments or conduct constituting a  material  modification  of  an  agreement  on  or after the effective date of this section.  (b)  Where an agreement between a brewer and beer wholesaler in effect prior to the effective date of this section is continuous in  nature  or has  no  specific  duration or has no renewal provision and fails to set forth all terms and conditions of material  significance  governing  the relationship  between  the brewer and beer wholesaler, including but not limited to the grounds and procedures which govern: (i)  termination  of the  relationship;  (ii)  approval  and  disapproval  of managers; (iii) change in ownership; and (iv) whether or not the wholesaler is  entitled to  compensation in the event the wholesaler is terminated for deficient performance under such agreement or without good cause;  such  agreement shall  be  considered  for purposes of this section to have been renewed sixty days after the effective date of this section.   11. The requirements of this section may not  be  altered,  waived  or modified by written or oral agreement in advance of a bona fide case and controversy  arising  under  a  written  agreement  complying  with this section.