West-Herr Automotive Group, Inc.; Analysis of Proposed Consent Order To Aid Public Comment |
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Topics: West-Herr Automotive Group
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Donald S. Clark
Federal Trade Commission
22 December 2016
[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Notices]
[Pages 93926-93928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30869]
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FEDERAL TRADE COMMISSION
[File No. 152 3105]
West-Herr Automotive Group, Inc.; Analysis of Proposed Consent
Order To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices. The attached Analysis to Aid Public Comment describes both
the allegations in the draft complaint and the terms of the consent
order--embodied in the consent agreement--that would settle these
allegations.
DATES: Comments must be received on or before January 17, 2017.
ADDRESSES: Interested parties may file a comment at
https://ftcpublic.commentworks.com/ftc/westherrconsent online or on
paper, by following the instructions in the Request for Comment part of
the SUPPLEMENTARY INFORMATION section below. Write ``In the Matter of
West-Herr Automotive Group, Inc., File No. 152 3105--Consent
Agreement'' on your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/westherrconsent by following the
instructions on the web-based form. If you prefer to file your comment
on paper, write ``In the Matter of West-Herr Automotive Group, Inc.,
File No. 152 3105--Consent Agreement'' on your comment and on the
envelope, and mail your comment to the following address: Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the
following address: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex
D), Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: Evan Zullow, (202) 326-2914, Attorney,
Financial Practices Division, Bureau of Consumer Protection, Federal
Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34,
notice is hereby given that the above-captioned consent agreement
containing consent order to cease and desist, having been filed with
and accepted, subject to final approval, by the Commission, has been
placed on the public record for a period of thirty (30) days. The
following Analysis to Aid Public Comment describes the terms of the
consent agreement, and the allegations in the complaint. An electronic
copy of the full text of the consent agreement package can be obtained
from the FTC Home Page (for December 16, 2016), on the World Wide Web
at: http://www.ftc.gov/os/actions.shtm.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before January 17,
2017. Write ``In the Matter of West-Herr Automotive Group, Inc., File
No. 152 3105--Consent Agreement'' on your comment. Your comment--
including your name and your state--will be placed on the public record
of this proceeding, including, to the extent practicable, on the public
Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a
matter of discretion, the Commission tries to remove individuals' home
contact information from comments before placing them on the Commission
Web site.
Because your comment will be made public, you are solely
responsible for making sure that your comment does not include any
sensitive personal information, like anyone's Social Security number,
date of birth, driver's license number or other state identification
number or foreign country equivalent, passport number, financial
account number, or credit or debit card number. You are also solely
responsible for making sure that your comment does not include any
sensitive health information, like medical records or other
individually identifiable health information. In addition, do not
include any ``[t]rade secret or any commercial or financial information
which . . . is privileged or confidential,'' as discussed in Section
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR
4.10(a)(2). In particular, do not include competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
[[Page 93927]]
If you want the Commission to give your comment confidential
treatment, you must file it in paper form, with a request for
confidential treatment, and you have to follow the procedure explained
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept
confidential only if the FTC General Counsel, in his or her sole
discretion, grants your request in accordance with the law and the
public interest.
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\1\ In particular, the written request for confidential
treatment that accompanies the comment must include the factual and
legal basis for the request, and must identify the specific portions
of the comment to be withheld from the public record. See FTC Rule
4.9(c), 16 CFR 4.9(c).
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Postal mail addressed to the Commission is subject to delay due to
heightened security screening. As a result, we encourage you to submit
your comments online. To make sure that the Commission considers your
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/westherrconsent by following the instructions on the Web-based
form. If this Notice appears at http://www.regulations.gov/#!home, you
also may file a comment through that Web site.
If you file your comment on paper, write ``In the Matter of West-
Herr Automotive Group, Inc., File No. 152 3105--Consent Agreement'' on
your comment and on the envelope, and mail your comment to the
following address: Federal Trade Commission, Office of the Secretary,
600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC
20580, or deliver your comment to the following address: Federal Trade
Commission, Office of the Secretary, Constitution Center, 400 7th
Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If
possible, submit your paper comment to the Commission by courier or
overnight service.
Visit the Commission Web site at http://www.ftc.gov to read this
Notice and the news release describing it. The FTC Act and other laws
that the Commission administers permit the collection of public
comments to consider and use in this proceeding as appropriate. The
Commission will consider all timely and responsive public comments that
it receives on or before January 17, 2017. You can find more
information, including routine uses permitted by the Privacy Act, in
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission (``FTC'' or ``Commission'') has
accepted, subject to final approval, an agreement containing a consent
order from West-Herr Automotive Group, Inc. The proposed consent order
has been placed on the public record for thirty (30) days for receipt
of comments by interested persons. Comments received during this period
will become part of the public record. After thirty (30) days, the FTC
will again review the agreement and the comments received, and will
decide whether it should withdraw from the agreement and take
appropriate action or make final the agreement's proposed order.
The respondent is a car dealership that sells used motor vehicles.
According to the FTC complaint, discussed further below, respondent has
represented that used motor vehicles it sells have been subject to
rigorous inspection, including for safety issues, but has failed to
disclose adequately that some of these vehicles are subject to open
recalls for safety issues. Federal law currently does not prohibit car
dealers from selling used vehicles subject to open safety recalls;
Congress and some states are considering legislation that would do so.
The Commission, however, can take action under the FTC Act to prohibit
companies from making claims that mislead consumers about safety-
related and other material issues. Further, the FTC can take such
action in addition to (and entirely independent of) any private rights
of action consumers themselves can bring under state law. This proposed
action thus does not replace or alter any state laws or legislative
proposals; rather, it offers additional protections beyond those
afforded under other such laws, as they exist now or may be amended.
More specifically, the complaint in this matter alleges the
respondent has posted advertisements on the Web site www.westherr.com
regarding the advantages of buying from West-Herr that have made the
following representations: ``Each vehicle goes through a rigorous
multi-point inspection with our factory trained technicians. The
service department grades each vehicle, and only the highest quality
vehicles make it to our lots. . . . Only about 40% of the vehicles we
take in on trade meet our standards. What happens to the other 60%?
They get wholesaled (about 250 per week) at our auction, to other
dealers in the area.''
Even though it makes such claims, the respondent has allegedly
advertised on its Web sites numerous used vehicles that were subject to
open recalls for safety issues. In numerous instances, when the
respondent allegedly advertised used vehicles that are subject to open
recalls for safety issues, it provided no accompanying clear and
conspicuous disclosure of this fact. The proposed complaint alleges
that this failure to disclose constitutes a deceptive act or practice
under Section 5 of the FTC Act.
The proposed order is designed to prevent the respondent from
engaging in similar deceptive practices in the future. Part I prohibits
the respondent from representing that used motor vehicles it offers for
sale are safe, have been repaired for safety issues, or have been
subject to an inspection for issues related to safety unless the used
motor vehicles are not subject to any open recalls for safety issues or
the respondent discloses, clearly and conspicuously, in close proximity
to such representation, any material qualifying information related to
open recalls for safety issues. Part II is a provision that orders the
respondent to notify consumers who purchased from it a used motor
vehicle between July 1, 2013 and June 30, 2015 that some of the used
vehicles it sold during this time had been recalled for safety issues
which weren't repaired as of the date they were sold. The notice also
must specify how consumers can check whether the vehicle is subject to
an unrepaired recall at the National Highway Traffic Safety
Administration's Web site, https://vinrcl.safercar.gov/vin/ vin/. This Web
site also provides information on how to get a vehicle fixed if it is
subject to an open recall.
Parts III through VII of the proposed order are reporting and
compliance provisions. Part III requires the respondent to maintain for
five years, and produce to the Commission upon demand, any relevant ads
and associated documentary material. Part IV is an order distribution
provision. Part V requires the respondent to notify the Commission of
corporate changes that may affect compliance obligations. Part VI
requires the respondent to submit a compliance report to the Commission
60 days after entry of the order, and also additional compliance
reports within 10 business days of a written request by the Commission.
Part VII ``sunsets'' the order after twenty years, with certain
exceptions.
The purpose of this analysis is to aid public comment on the
proposed order. It is not intended to constitute an official
interpretation of the complaint or proposed order, or to modify in any
way the proposed order's terms.
[[Page 93928]]
Statement of the Federal Trade Commission Concerning Auto Recall
Advertising Cases \1\
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\1\ In the Matters of General Motors Company, File No. 1523101;
Jim Koons Management Company, File No. 1523104; Lithia Motors, Inc.,
File No. 1523102; CarMax, Inc., File No. 1423202; West-Herr
Automotive Group, Inc., File No. 1523105; and Asbury Automotive
Group, Inc., File No 1523103.
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December 15, 2016
Unrepaired auto recalls pose a serious threat to public safety. Car
manufacturers and the National Highway Traffic Safety Administration
have recalled tens of millions of vehicles in each of the last several
years for defects that pose significant safety risks to consumers. In
2015, for example, recalls affected 51 million vehicles nationwide.\2\
And defects that have been the subject of recalls have led to severe
injuries and even death for many consumers. Federal law requires that
all new cars sold in the United States be free from recalls, but it
does not prohibit auto dealers from selling used cars with open
recalls. As a result, absent a change in law, neither NHTSA nor any
other federal agency has the authority to ban the sale of used cars
that have open recalls across the industry.
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\2\ Gordon Trowbridge, National Highway Traffic Safety
Administration, U.S. Department of Transportation launches new
public awareness campaign, Jan. 21, 2016, https://www.nhtsa.gov/About-NHTSA/Press-Releases/nhtsa_launches_safe_cars_save_lives_campaign_01212015.
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Section 5 of the Federal Trade Commission Act, however, enables the
Commission to stop car sellers from engaging in false or misleading
advertising practices that mask the existence of open recalls, and we
are committed to doing just that. As part of this effort, the
Commission is issuing final orders against General Motors Company, Jim
Koons Management Company, and Lithia Motors, Inc. and announcing
proposed orders against CarMax, Inc., West-Herr Automotive Group, Inc.,
and Asbury Automotive Group, Inc. In these enforcement actions, the
Commission is challenging what we allege are deceptive advertising
claims by these companies that highlight the rigorous inspections they
perform on their used cars, but fail to clearly disclose the existence
of unrepaired safety recalls.
More specifically, we allege that the companies named in these
actions touted the rigorousness of their car inspections by claiming,
for example, to engage in a ``172-point inspection and
reconditioning,'' an ``exhaustive 160-checkpoint Quality Assurance
Inspection,'' or a ``rigorous and extensive inspection.'' Some of these
inspected cars were subject to open recalls. We charge that the
companies' representations about their inspections, absent clear and
conspicuous information about open recalls, were likely to mislead
reasonable consumers into believing that the inspections included
repairing open recalls. Therefore, the companies' failure to disclose
this information was deceptive.\3\
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\3\ Under Section 5 of the FTC Act, ``it can be deceptive to
tell only half the truth, and to omit the rest. This may occur where
a seller fails to disclose qualifying information necessary to
prevent one of his affirmative statements from creating a misleading
impression.'' See In re International Harvester Co., 104 F.T.C. 949,
1057 (1984).
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Our orders stop this deceptive conduct and provide important
additional protections for consumers. First, the orders prohibit each
company from making any safety-related claim about its vehicles unless
(1) the vehicles are recall-free, or, alternatively, the company
discloses clearly and conspicuously and in close proximity to the
representation both that the vehicles may be subject to open recalls
and how consumers can determine the recall status of a particular car,
and (2) the claims are not otherwise misleading.\4\
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\4\ For instance, a claim could still be misleading, even with
the required disclosure, if a dealer represents that it inspected
specific cars when it failed to do so, makes false oral statements
to consumers that specific cars are free of recalls, or states a car
may be subject to a recall (or otherwise implies it does not know
the recall status) but in fact knows the car is actually subject to
an open recall.
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This means that, if any car on the companies' lots is subject to an
open recall, every time the companies make these types of inspection
claims, they must prominently disclose that their cars may be subject
to open recalls and tell consumers how to determine the recall status
of specific cars. And they must provide this information wherever the
inspection claims are made--in the showroom, on the lot, and in any TV,
radio, or Web site ad that consumers may view before they even visit a
car dealer.
Further, the orders require each company to warn consumers who
recently purchased one of its used cars that the vehicle may have an
open recall. The Commission can seek civil penalties for violations of
these orders, and we will not hesitate to do so if we discover a
violation.\5\
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\5\ See U.S. v. New World Auto, No. 16-cv-2401 (N.D. Tex. Aug.
22, 2016) (requiring auto dealers to pay civil penalties for
violations of FTC order).
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These enforcement actions will help empower consumers to make more
informed and safer purchasing decisions in a market that, absent a
change in federal law, continues to include cars subject to open
recalls. Dealers that repair all of their cars can continue to make
truthful claims that they are recall-free, and can benefit from the
competitive advantages of doing so. Dealers that cannot, or do not,
repair all of their cars must instead prominently disclose that the
cars may have open recalls when they make certain safety-related
claims, such as claims about comprehensive inspections. Dealers are
therefore incentivized to repair open recalls in the cars they
advertise. At the same time, dealers can continue conducting their
inspection programs and truthfully advertising them, provided they
prominently disclose that cars may be subject to open recalls and do
not misrepresent the recall status or safety of their cars.\6\
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\6\ Dealer inspection programs often involve checking that vital
components of a car, like the brakes and drivetrain, are working
properly and thus can provide important consumer benefits.
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Finally, we note that other laws, including state product safety,
tort, and other consumer protection laws, provide important safeguards
to consumers affected by defective cars. Of course, the Commission's
orders do not affect the protections afforded by those laws. Rather,
the Commission's orders provide independent protection for consumers,
requiring that they be given information about open recalls before they
purchase a used car.
Congress has been considering legislative proposals that would
prohibit the sale of used cars with unrepaired recalls altogether, and
we support efforts seeking to address this serious public safety issue.
Although the Commission's enforcement actions against individual
companies cannot substitute for legislative solutions, they provide
important protections for consumers to help ensure that they can make
informed and safer purchasing decisions in the used car marketplace.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2016-30869 Filed 12-21-16; 8:45 am]
BILLING CODE 6750-01-P