Fill and Sign the Jury Instruction 11111 General Instruction Form

11 Automobile Dealers Day-In-Court Act (15 USC § 1222) In this case the Plaintiff claims that the Defendant violated a federal statute known as the Automobile Dealers Day-In-Court Act - -an Act of Congress that required the Defendant to act in "good faith" in [terminating] [not renewing] the Plaintiff's franchise agreement. "Good faith" is the duty of each party to a franchise agreement (and all officers, employees, or agents of each party) to act in a fair and equitable manner toward each other so as to guarantee each party freedom from coercion, intimidation, or threats of coercion or intimidation from the other. In order to prevail on this claim, the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the Defendant failed to act in "good faith" in the matter of the [termination] [nonrenewal] of the franchise; Second: That the lack of good faith by the Defendant involved wrongful acts of coercion or intimidation, or threats thereof, toward the Plaintiff; And Third: That the Plaintiff suffered damages as a result of those wrongful acts and conduct of the Defendant. In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] The fact that a dealer has a written franchise agreement with a manufacturer does not automatically give the dealer the right to have the written agreement renewed when it expires. The law requires only that the manufacturer act in "good faith" with regard to the matter of renewal. The manufacturer is always free to advance its own business interests by making recommendations and arguments in an effort to goad a dealer into more efficient operations or a higher level of sales. The manufacturer is also free to enforce the reasonable provisions of the contract and to refuse a renewal of the agreement if the dealer has materially breached its terms. A manufacturer's behavior becomes unlawful only when it does not exercise good faith and its actions toward the dealer amount to coercion and intimidation. In order to prove coercion or intimidation, the Plaintiff must prove conduct on the part of the Defendant that results in the dealer's acting, or refraining from acting, against the dealer’s will. The Plaintiff must show that the manufacturer attempted to force or coerce the Plaintiff in some way into doing something it had a lawful right not to do, or to refrain from doing something it had a lawful right to do. Acts or statements that do nothing more than enforce the contract and attempt to hold the Plaintiff to its terms do not amount to coercion or intimidation. The coercion or intimidation must include a wrongful demand that will result in penalties or sanctions if not complied with. In addition, the coercion or intimidation must be actual; that is, the mere fact that a dealer feels that it has been coerced or intimidated is not sufficient. It is for you to decide on the basis of all the circumstances disclosed by the evidence whether the Defendant's conduct reached the level of actual coercion, intimidation or threats thereof. If you find in favor of the Plaintiff you will then consider the issue of the Plaintiff's damages. In that regard you should award the Plaintiff an amount of money that will fairly and adequately compensate it for the damage the evidence shows it has sustained and is reasonably certain to experience in the future as a result of the failure to renew the franchise. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant.] Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: [State or enumerate the elements of recoverable damages] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably avail able under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] [The Plaintiff also claims that the acts of the Defendant were done willfully, intentionally or with callous and reckless indifference to the Plaintiff's rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. If you find for the Plaintiff, and if you further find that the Defendant did act with malice, willfulness or callous and reckless indifference to the rights of others, the law would allow you, in your discretion, to assess punitive damages against the Defendant as punishment and as a deterrent to others. If you find that punitive damages should be assessed against the defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages [and you may assess punitive damages against one or more of the Defendants, and not others, or against more than one Defendant in different amounts].] 11 Automobile Dealers Day-In-Court Act (15 USC § 1222) SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Defendant failed to act in “good faith” in the matter of the [termination] [nonrenewal] of the franchise? Answer Yes or No [Note: If you answered No to Question No. 1 you need not answer the remaining questions.] 2. That the lack of good faith by the Defendant involved wrongful acts of coercion or intimidation, or threats thereof, toward the Plaintiff? Answer Yes or No [Note: If you answered No to Question No. 2 you need not answer the remaining questions.] 3. That the Plaintiff suffered damages as a result of those wrongful acts and that conduct of the Defendant? Answer Yes or No 4. That the Plaintiff should be awarded the following damages: [State or enumerate the recoverable elements of damages] $       SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS “Bad faith” has been defined narrowly and does not mean simply a lack of fairness, but entails a showing of coercion. Absent coercion, there can be no recovery under the Act, even if the manufacturer otherwise acts in “bad faith” as that term is normally used. See Cabriolet Porsche Audi, Inc. v. American Honda Motor Co., 773 F.2d 1193, 1210 (11th Cir. 1985), cert. denied, 475 U.S. 1122 (1986); see also Carroll Kenworth Truck Sales, Inc. v. Kenworth Truck Co., 781 F.2d 1520, 1525 (11th Cir. 1986); Bob Maxfield, Inc. v. American Motors Corp., 637 F.2d 1033, 1038-39 (5th Cir.), cert. denied, 454 U. S. 860 (1981); H. C. Blackwell Co., Inc. v. Kenworth Truck Co., 620 F.2d 104, 106 (5th Cir. 1980).