Tesla Weighs Federal Challenge to States' Direct-Sales Bans
March 28 2016 - 2:47PM
Dow Jones News
By Mike Ramsey
Tesla Motors Inc. hopes to capture mainstream auto buyers with
its Model 3, an electric car it plans to unveil this week at a
price about the same as the average gasoline-powered vehicle, but
it may need a federal court ruling to succeed.
The Palo Alto, Calif., auto maker's direct-to-consumer sales are
prohibited by law in six states that represent about 18% of the
U.S. new-car market. Barring a change of heart by those states,
Tesla is preparing to make a federal case out of the direct-sales
bans.
The auto maker's legal staff has been studying a 2013 federal
appeals court ruling in New Orleans that determined St. Joseph
Abbey could sell monk-made coffins to customers without having a
funeral director's license. The case emerged amid a casket shortage
after Hurricane Katrina. The abbey had tried to sell coffins, only
to find state laws restricted such sales to those licensed by the
Louisiana Board of Funeral Directors.
For now, Tesla is banking on a combination of new legislation,
pending dealer applications and other factors to open doors to
selling directly in Arizona, Michigan, Texas, Connecticut, Utah and
West Virginia. But the company said it is ready to argue in federal
court using the coffin case if necessary.
"It is widely accepted that laws that have a protectionist
motivation or effect are not proper," Todd Maron, the auto maker's
chief counsel, said in an interview. "Tesla is committed to not
being foreclosed from operating in the states it desires to operate
in, and all options are on the table."
The ruling in favor of the monks, upheld by the Fifth Circuit
Court of Appeals, could give Tesla the precedent it needs to join
an "economic liberty" issue currently in dispute between circuit
courts in the U.S., Northwestern University law professor John
McGinnis said. The Second Circuit Court of Appeals, for instance,
has upheld laws that require licensing to sell certain products
even if there isn't a clear reason for it other than protecting
existing businesses from new competition.
Tesla has long battled states over franchise laws that insulate
dealers from direct competition from auto makers. Laws protecting
independent dealers were installed in the 1950s to prevent the
arbitrary closing of stores by manufacturers, and in recent years
these rules have been used by dealer lobbyists and some auto makers
to argue that all stores need to be independently owned.
Tesla doesn't have independent dealers and instead sells through
its own stores and through the Internet. To date, its sales have
been a fraction of the volumes that major auto makers sell, but it
aims to boost annual sales nearly 10 fold to 500,000 by 2020. Being
able to widely sell the Model 3--expected to be priced at about
$35,000 before tax credits--is an important step in taking on
brands as ubiquitous as Chevrolet.
Mr. Maron's legal team has been researching legal options as
Tesla wages state-by-state battles with dealer associations that
have pushed legislation to restrict direct sales of the Model S and
Model X, which commonly sell for above $100,000. Recently, Tesla
beat back an effort in Indiana that would have halted its sales
operation there by the end of 2017.
In Michigan, Tesla last year filed for a dealer license. Because
the state made a law in 2014 prohibiting direct sales to consumers
by auto makers, the state could determine the license shouldn't be
granted. Michigan's attorney general's office declined to
comment.
Louisiana's coffin cases could come in handy if Michigan sides
with dealers. And Tesla's use of it as a precedent could breathe
life into the economic liberty fight that to date has involved
smaller issues, such as selling gravestones or providing flowers to
a funeral home.
"Until now, these decisions have been in niche areas of the
economy," Mr. McGinnis, the professor, said. "With Tesla behind it,
it would go into something as economically important as the
structure of the industry for retailing cars."
Auto dealers are battle-tested and have notched a series of
victories along the way. Earlier this year, the Second Circuit
Court of Appeals refused to hear a case brought by auto makers that
wanted to change laws using a similar constitutional challenge and
involving warranty reimbursement levels.
Tesla could find powerful allies. The Federal Trade Commission
has repeatedly said franchise laws are anti-competitive. Other
organizations agree.
"There is no legitimate competitive interest in having consumers
purchase cars through an independent dealership," Greg Reed, an
attorney with Washington D.C.-based Institute for Justice, a
libertarian-leaning law firm, said. He calls Michigan's laws
"anti-competitive protectionism."
Write to Mike Ramsey at mike.ramsey@wsj.com
(END) Dow Jones Newswires
March 28, 2016 14:32 ET (18:32 GMT)
Copyright (c) 2016 Dow Jones & Company, Inc.
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