33:1-93.18 Actions against brewer, remedies.

7. a. Any brewer or wholesaler may bring an action against a brewer for violation of this act, or against a successor brewer in connection with a termination pursuant to paragraph (1) of subsection d. of section 4 of this act, in the Superior Court of the State of New Jersey. Any brewer who violates any provision of this act, and any successor brewer who terminates a contract, agreement or relationship with a wholesaler pursuant to paragraph (1) of subsection d. of section 4 of this act, shall pay the injured wholesaler all reasonable damages sustained by it as a result of the brewer's violations. Injunctive and other equitable relief also shall be available in appropriate circumstances under the applicable standards for such relief under State law. Injunctive equitable relief shall be granted against an actual or threatened unlawful failure or refusal to grant a wholesaler the right to purchase and resell a brand extension. The wholesaler or brewer who sues alleging a violation of this act shall, if successful, also be entitled to the costs of the action including, but not limited to, reasonable attorney's fees.

b. Without limiting the provisions of subsection a. of this section, if a brewer violates paragraph (1), (2) or (3) of subsection c. of section 4 of this act, the injured wholesaler's reasonable damages shall include the fair market value of the wholesaler's business with respect to the terminated brand or brands.

c. If a brewer terminates or fails to renew, in whole or in part, a contract, agreement or relationship with a wholesaler for good cause and in good faith, other than terminations or failures to renew properly based upon grounds for immediate termination under section 5 of this act, the brewer shall pay to the wholesaler reasonable compensation, which may be established by a reasonable liquidated damages provision in a written contract or written agreement between the brewer and the wholesaler. Payment for inventory and other tangible assets owned and used by the wholesaler in its operation as a wholesaler for the brewer's products as provided for under the standards of a written contract or written agreement, as well as a payment determined by multiplying by two the wholesaler's pre-tax net income attributable to the sale of the brewer's brand or brands for the wholesaler's most recently completed fiscal year preceding the year in which the termination occurs, is deemed to be a reasonable liquidated damages provision under this act for such a termination of the right to distribute brands representing more than 20% of the wholesaler's revenues. This payment shall not be deemed reasonable compensation in any other circumstance or to represent a basis for calculating fair market value. In particular and without limitation, in the case of brands representing 20% or less of a wholesaler's revenues, which may not require significant incremental expenses for delivery, sales and service, making a net income standard inappropriate, such payment shall not be deemed to be a reasonable liquidated damages provision under this act.

d. In the event of a termination under section 5 of this act, payment for inventory in the manner prescribed under the reasonable standards of a contract or agreement is reasonable compensation under this act.

e. Nothing in this act shall be deemed to give a right of action for violation of this act to any third party to the relationship between a brewer and a wholesaler, except for a brewer adversely affected by another brewer's violation of this act with respect to a common wholesaler.

L.2005,c.243,s.7.