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Tuesday, July 27, 2010

Inside The Chrysler Dealer Arbitrations

The Chrysler dealer arbitrations have been completed. Out of 108 arbitration hearings Chrysler maintains they won 76 of the decisions to 32 in their favor of terminated dealers. 32 out of the 789 franchises initially rejected have now received a “Letter of Intent,” which still makes th dealer subject to the nefarious whims of Chrysler when it comes to re-establishing their business. Word has it that Chrysler has employed unscrupulous tactics with their jilted dealers, leading to their overwhelming won/loss ratio.
On the heels of the final Chrysler arbitration numbers comes the Special Investigator General Troubled Asset Relief Program (SIGTARP) report. This is the government’s own audit of the use of TARP funds to bailout Chrysler and GM. The report castigates the Auto Task Force, led by Ron Bloom, Steve Rattner, and Steve Girsky for forcing the terminations. It seems the Task Force wanted to impose the “Toyota Throughput Model” ON GM and Chrysler. The OEMs might not have had any choice in cutting down their franchise count. After all Rick Wagoner was fired for not submitting an aggressive enough restructuring plan after taking TARP money from the Bush administration in December 2008. There isn’t enough space to analyze SIGTARP here. Others have already done so and the document speaks for itself. There is no doubt it would have been quite helpful to dealers locked in arbitration with their OEMs, had it been available at the time.
How Chrysler, in particular, went about their termination process is telling. Chrysler aggressively pursued arbitration, probably at the behest of CEO Sergio Marchionne, who thinks the dealers work for him. GM, on the other hand, wasn’t as aggressive as new CEO Ed Whitacre quickly figured out who his customers are and worked to restore many dealers quickly.
We talked to Carl Woodward, CPA of Woodward and Associates, Inc. Mr. Woodward has 38 years experience specializing in auto business accounting serving hundreds of auto dealers. He also has actual dealer experience as a partner/owner. Mr. Woodard participated in about twenty dealer arbitration cases on behalf of dealers. We have also spoken with dealers, some who won and some who lost their Chrysler arbitration hearings. A common theme arose from these conversations. Many of the Chrysler terminations made no sense at all. They were made based on incorrect data, incorrect interpretation of data, and quite possibly out of retribution toward dealers who had stood up for themselves in the past.
Chrysler typically fought against motions to transcribe arbitration proceedings. It seems they routinely took advantage of the lack of auto business and financial experience of some of the arbitration judges. Chrysler must not have wanted a record to be available when they took different sides of an issue depending on who the arbitration judge happened to be. For example, Chrysler might take a position that LIFO counts as working capital if that argument works in their favor, supporting a dealer they retained over one who was terminated. In another situation they might argue that LIFO reserve does NOT count as working capital if that argument supported the termination of a dealer. If the arbitration judge didn’t know the difference, and the dealer wasn’t knowledgeable and well prepared, this worked out in favor of Chrysler. As a practical matter, LIFO reserve DOES count as working capital. Chrysler must not have wanted a record to be available. Why have to deal with precedent if it is inconvenient?
In at least one instance, Chrysler retained a dealer with negative working capital over one with many times Chrysler’s own guide formula. Chrysler got caught on it when the dealer was well prepared with a knowledgeable attorney and CPA experienced in these matters.
In my own case, I have been in and around the auto business for 40 years. Until recently I have NEVER heard from any manufacturer any assertion that fewer dealers sell more vehicles. A spot check of Chrysler’s Alpha – Genesis project revealed interesting results. The project involves consolidating all of the Chrysler – Jeep - Dodge – Dodge Truck franchises under one roof. Imagine a market that has a 3 dealerships, one for Chrysler, Dodge/Dodge Truck, and Jeep. Now you put them all in one location. Yes, it’s probably good for the dealer who ends up with the 4 franchises under one roof, unless he/she had to boost overhead substantially to accomplish it. But I have yet to find an instance where overall Chrysler market share increases under this circumstance. My research is admittedly anecdotal. But others I have spoken to, including Carl Woodward and various dealers, are telling me the same thing. Even a couple of “factory people” have made the same observation without agreeing to attribution. When challenged in arbitration hearings to prove that Alpha – Genesis has been proven to achieve the stronger market penetration Chrysler says it desperately needs, they have, to my knowledge, not been able to provide any data to support their assertion. Might their entire premise to terminate dealers be based on a false premise?
Tammy Darvish, co-leader of the Committee to Restore Dealer Rights and vice president of Darcars Automotive Group in Silver Spring, MD weighed in: "It is curious that there is no accountability for the gross error in judgment on behalf of the Auto Task Force in addition to those that we believe committed perjury in Federal Bankruptcy court and in Congressional Hearings. Raising your right hand and swearing to tell the truth, the whole truth and then doing everything else but is unconscionable."
There is no doubt that it has been better for the economy to have a relatively orderly restructuring of GM and Chrysler instead of a disorderly liquidation. But the motives and tactics of Chrysler, in particular, are repugnant at best.
Addenda: We bloggers on Marketplace July 19, 2010