§437-28.5 Procedures, protections, rights, and remedies made available to licensees. (a) The same procedures, protections, rights, and remedies provided to a dealer under section 437-3.6, section 437-28(a)(21), and part II shall apply to a distributor that is not a manufacturer.

(b) Notwithstanding the terms, provisions, or conditions of any dealer or distributor agreement, franchise, or waiver and notwithstanding any other legal or administrative remedies available, any person who is licensed under this chapter and whose business or property is injured by a violation of section 437-28(a)(21) or part II may bring a civil action in a court of competent jurisdiction in the State to enjoin further violations and to recover any damages together with the costs of the suit. Laws of the State of Hawaii shall apply to any action initiated under this subsection.

(c) Any person that brings or defends against a civil action under subsection (b) may be entitled to recover reasonable attorneys' fees as a part of any damages or injunction; provided that the person substantially prevails in establishing or defending against a violation of section 437-28(a)(21) or part II.

(d) Upon a cancellation or failure to renew a distributorship agreement, the party canceling or failing to renew the agreement, at the distributor's option, shall either:

(1) Compensate the distributor at the fair market value of the distributor's capital investment, which shall include but not be limited to the going business value of the business, goodwill, property, and improvement owned or leased by the distributor for the purpose of the distributorship; the distributor's inventory of parts; the distributor's dealer operations and franchise agreements with other dealers; and motor vehicles possessed by the distributor in connection with the distributorship plus reasonable attorney's fees incurred in collecting compensation; provided that, to be eligible for compensation pursuant to this paragraph, an investment shall have been made with reasonable and prudent judgment for the purpose of the distributorship agreement; or

(2) Compensate the distributor for damages including reasonable attorney's fees incurred in collecting compensation resulting from the cancellation or failure to renew the distributorship agreement. [L 2003, c 126, pt of §1; am L 2010, c 164, §7; am L 2011, c 13, §2]

Case Notes

Although the forum selection clause in a section of the distributorship agreement stated that the agreement shall be governed and construed in accordance with the laws of Wisconsin, the section also stated that any applicable state motor vehicle statute governing the relationship between defendant and plaintiff shall be controlling in the event of a conflict between any provision of the agreement and the state statute. Under that section's express language, because the selection of Wisconsin as the exclusive forum conflicted with subsection (b) and §437-52(1), the provisions of the Hawaii Motor Vehicle Industry Licensing Act controlled. 81 F. Supp. 3d 993 (2014).