Title 37 — TRADE REGULATION

The term, dealer, does not include a single-line dealer or any person with total annual gross sales in this state and elsewhere of one hundred million dollars or more of industrial and construction equipment, attachments, replacement parts, and service related to the equipment, f…

Terms used in §§ 37-5-16 to 37-5-18 , inclusive, shall only be used for the purposes of §§ 37-5-16 to 37-5-18 , inclusive, and mean: (1) "Retailer of outdoor power equipment," a business that purchases outdoor power equipment for resale including: light industrial lawn and garden…

Any manufacturer of outdoor power equipment that authorizes the retailer of outdoor power equipment selling such equipment to perform the warranty work shall include reasonable compensation for diagnostic work, as well as repair service, parts, and labor to the retailer. Time all…

The provisions of §§ 37-5-16 and 37-5-17 do not apply if the manufacturer's only method of sales is a contract with the retailer that provides for an exclusive trade territory and requires the retailer to make warranty repairs on such equipment. Source: SL 2004, ch 255 , § 3.

Any dealer, as defined in § 37-5-12.1 or subdivision 37-5-13(1), whose business or property is injured by a violation of this chapter may bring a civil action to recover all court costs and reasonable attorney's fees in addition to all other remedies of law. Source: SL 2012, ch 1…

It is a Class 1 misdemeanor for any manufacturer, factory, branch, distributor, or distributor - branch, or any field representative, officer, agent, or representative of any of them to coerce or attempt to coerce any dealer to enter into any agreement with the manufacturer, fact…

It is a Class 1 misdemeanor for any manufacturer, factory, branch, distributor, or distributor - branch, or any field representative, officer, agent, or representative of any of them, unfairly, without due regard to the equities of the dealer and without just provocation, to canc…

Each and every person and corporation who or which violates any provision of §§ 37-5-1 to 37-5-3 , inclusive, shall be liable to any dealer damaged thereby for all damages caused to such dealer by such violation. Source: SL 1951, ch 262 , § 2; SDC Supp 1960, § 54.9911; SL 1977, c…

If any dealer enters into a written contract; if the dealer maintains a stock of merchandise or repair parts for the merchandise with any wholesaler, manufacturer, or distributor; and if either the wholesaler, manufacturer, or distributor, or their successors, or the dealer, desi…

A wholesaler, manufacturer, or distributor shall also repurchase from the dealer and the dealer shall sell any specialized computer hardware or software, specialized tool, or signage which the wholesaler, manufacturer, or distributor required the dealer to purchase or lease as pa…

The provisions of § 37-5-5 relating to a retailer's right to cancel or discontinue a contract and receive payment for machines, attachments, and parts returned shall apply to all contracts in effect on July 1, 1969, which have no expiration date and are a continuing contract, and…

The prices of merchandise required to be paid to any dealer as provided in § 37-5-5 , shall be determined by taking one hundred percent of the net cost of the merchandise, and ninety - five percent of the current net price of repair parts for the merchandise as shown upon the man…

The payments to be made to the dealer pursuant to §§ 37-5-5 to 37-5-9 , inclusive, shall be made no later than sixty days from the date the merchandise is received by the wholesaler, manufacturer, or distributor and shall be accompanied by a final detailed statement of account th…

If any manufacturer, wholesaler, or distributor of merchandise or repair parts for the merchandise, or their successors, upon cancellation of a contract by either a dealer or a manufacturer, wholesaler, or distributor, or their successor, fails or refuses to make payment to the d…

In the event of the death of the dealer or majority stockholder in a corporation operating a dealership in the business of selling merchandise or repair parts for merchandise, the wholesaler, distributor, or manufacturer who supplied the merchandise, or its successor, shall repur…

Terms used in this chapter, unless the context otherwise requires, mean: (1) "Action," any complaint, cross claim, counterclaim, and third-party complaint in a judicial action or proceeding, and their equivalent in an administrative action or arbitration; (2) "Affiliate," any ent…

This chapter does not prevent the negotiation of the terms and conditions of a franchise before it is sold. After the initial offer, a franchisor need not amend its disclosure document to negotiate with an offeree, or make supplementary disclosure to that offeree, by reason of a …

The person offering or selling any franchise subject to the requirements of §§ 37-5B-17 and 37-5B-18 shall obtain a receipt, signed by the prospective franchisee, acknowledging that the prospective franchisee has received a copy of the disclosure document prior to the prospective…

The following are exempt from this chapter: (1) Any franchise relationship covered by the Petroleum Marketing Practices Act, 15 U.S.C. 2801, as of January 1, 2008; (2) Any franchise relationship where there is no written document that describes any material term or aspect of the …

The following franchises are subject to this chapter but are exempt from §§ 37-5B-4 and 37-5B-17 , if any of the following conditions are satisfied: (1) The franchisee's initial investment, excluding any financing received from the franchisor or an affiliate, and excluding the co…

The following franchises are subject to this chapter but are exempt from § 37-5B-4 if any of the following conditions are satisfied: (1) The offer or sale to an existing franchisee of an additional franchise that is substantially the same as the franchise that the franchisee has …

The director may by rule or order exclude the offer and sale of a franchise from the requirements of §§ 37-5B-4 and 37-5B-17 if the filing or disclosure is not necessary or appropriate in the public interest or for the protection of prospective franchisees. Source: SL 2008, ch 20…

For purposes of the exemptions set forth in subdivision 37-5B-12(5) and subdivisions 37-5B-13(1) and (2), the director may adjust by rule or order the size of the thresholds. Source: SL 2008, ch 203 , § 16.

In connection with the offer or sale of a franchise in this state, unless the transaction is exempted by the provisions of §§ 37-5B-12 to 37-5B-16 , inclusive, it is a prohibited practice and a violation of this chapter for any person, directly or indirectly, to: (1) Fail to furn…

For purposes of subdivisions 37-5B-17(1) and (2), the franchisor has furnished the disclosure documents by the required date if: (1) A copy of the disclosure document was hand-delivered, faxed, e-mailed, or otherwise delivered to the prospective franchisee by the required date; (…

Every franchisor offering or selling a franchise in this state shall maintain complete and accurate books and records of the offers and sales of franchises. The books and records shall include all of the disclosure documents and advertising and correspondence that have been used …

This chapter applies to any franchise that is offered or sold in this state. A franchise is offered in this state if: (1) An offer to sell is made in this state; (2) The offer originates from within this state; or (3) The offer is directed by the offeror into this state from outs…

In any proceeding under this chapter the burden of proving an exemption is upon the person claiming it. Source: SL 2008, ch 203 , § 20.

A written provision in a franchise contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of the contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to a…

Each applicant for notice filing under this chapter, and each franchisor on whose behalf an application for notice filing is filed, except any applicant and franchisor which are domestic South Dakota entities, shall file with the director an irrevocable consent to service of proc…

No person may publish or cause to be published in this state any advertisement concerning any franchise after the director has found that the advertisement contains any statement that is false or misleading or omits to make any statement necessary in order to make the statements …

No person may, directly or indirectly, employ a device, scheme, or artifice to defraud in connection with the offer or sale of a franchise. A violation of this section is a fraudulent practice and a Class 4 felony. Source: SL 2008, ch 203 , § 24.

No person may, directly or indirectly, in connection with the offer or sale of a franchise willfully: (1) Make an untrue statement of material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they …

No person may, directly or indirectly, in connection with the offer or sale of a franchise: (1) Make any claim or representation, orally, visually, or in writing, that contradicts the information required to be in the disclosure document; (2) Misrepresent that any person: (a) Pur…

The director may not approve or express any opinion on the legality of any matter a franchisor may be required to disclose under this chapter. Source: SL 2008, ch 203 , § 27.

The director shall administer this chapter. Source: SL 2008, ch 203 , § 28.

The director may promulgate rules pursuant to chapter 1-26 to carry out the provisions of this chapter including forms governing disclosure documents, applications, financial statements, and defining any terms, whether or not used in this chapter, if the definitions are not incon…

An offer to sell is not made in this state solely because the offer appears in a newspaper or other publication of general and regular circulation which had more than two-thirds of its circulation outside this state during the past twelve months or solely because the offer appear…

The director may, upon request and upon payment of a fee of fifty dollars, respond to requests for interpretive opinions relating to this chapter. Source: SL 2008, ch 203 , § 30.

A document is filed when it is received by the director. Source: SL 2008, ch 203 , § 31.

The director shall maintain a record which shows the notice filed franchise and for whom filed, and shall specify the conditions, limitations, and restrictions upon the filing, if any, or shall make proper reference to a formal order of the director on file showing the conditions…

Each application, notice and report filed with the director under this chapter is open to public inspection in accordance with rules prescribed by the director. The director may publish information filed with the director or obtained by the director, if, in the judgment of the di…

The director shall upon request furnish copies to any person, at a reasonable charge, certified under the director's seal of office if certification is requested, of any notice filing, application and order on file in the director's office. Any copy so certified is admissible in …

The director may make such public or private investigations within or outside of this state as the director deems necessary to determine if any person has violated or is about to violate any rule, order, or provision under this chapter or to aid in the enforcement of this chapter…

The director may make a written request to any person for information concerning any investigation being conducted by the director. Failure to respond fully and completely to such a request within fifteen days after receipt thereof constitutes cause for the issuance of a cease an…

For the purpose of any investigation or proceeding under this chapter, the director or any person designated by the director may administer oaths and affirmations, subpoena witnesses and compel their attendance, take evidence and require the production of any books, papers, corre…

No person is excused from attending and testifying or from producing any document or record before the director, in obedience to a subpoena of the director or any person designated by the director in any proceeding instituted by the director, on the grounds that the testimony or …

It is a Class 2 misdemeanor for the director or any of the director's officers or employees to use for personal benefit any information which is filed with or obtained by the director and which is not generally available to the public. Nothing in this chapter authorizes the direc…

It is unlawful for any person to offer or sell a franchise in this state unless the franchise has properly notice filed under this chapter or is exempt from notice filing pursuant to §§ 37-5B-12 to 37-5B-15 , inclusive. Source: SL 2008, ch 203 , § 4.

To encourage uniformity in franchise matters among the federal government, self-regulatory organizations, states and foreign governments, the director may cooperate with federal, state or foreign agencies or administrators and law enforcement agencies, including: (1) Conducting j…