CATA News

Enacted in 2008, the Illinois Biometric Information Privacy Act (“BIPA”), went largely unnoticed until a few years ago when a handful of cases sparked a flood of class action litigation over the collection, use, storage, and disclosure of biometric information.

What is BIPA?

BIPA’s purpose is to protect individuals' privacy rights in their biometric information, including retina or iris scans, fingerprint, voiceprint, hand scans, facial geometry, DNA and other unique, identifying biological information.

Employers may collect and store this information only if they:

Employers may not disclose this information to third parties without the individual's written consent.

A wave of lawsuits followed BIPA's passage. Most were brought by former or current employees whose employers used fingerprints or handprints for timekeeping. For instance, a jury in the first ever BIPA trial (October 2022) found that defendant BNSF Railway Company recklessly or intentionally violated BIPA 45,600 times (once per class member) when it required drivers to register and provide fingerprints each time they used an automated gate system to enter the railyard. The verdict resulted in a $228 million award for the plaintiffs.

Two recent rulings by the Illinois Supreme Court have increased BIPA exposure. First, the Court found a five-year statute of limitations period applies to BIPA claims, rather than a one-year period. Second, the Court found a BIPA claim accrues each time an entity scans or transmits an individual's biometric identifier or information, instead of a single violation when biometric information is first collected.

What Employers Should Do to Limit Liability?

Before employers obtain any biometric data, we recommend they have all employees provide written authorization:

Effective January 1, 2024, a customer’s responsibility for physical damage to a rental vehicle under Section 6-305.2 of the Illinois Vehicle Code has been modified to the following, which is beneficial to loss recovery for your dealership.

A Customer’s responsibility for damage to, loss of, or theft of a rental vehicle includes:

The law change requires that a notice outlining these changes be posted in a conspicuous place for the customer to see. A copy of the sample notice is attached for your usage.

Additionally, the current Illinois version of the Vehicle Use Agreement (VUA) will be updated and available January 1, 2024, adding the updated loss payment conditions by your Fleet Management Software company and printing vendors.

Click here to view sample notice for your dealership.

Form 8300 is used for businesses to report any transaction in which the business receives more than $10,000 cash. Form 8300 provides the IRS with valuable information to aid their efforts to combat money laundering. Previously, a business was only required to file electronically when 250 or more information returns (Form 1099, Form W2, Form 8300, etc.) were filed in the year. In 2024, businesses that file 10 or more information returns are required to e-file those returns.

To help with this process, the IRS has created a new, free online portal, known as the Information Returns Intake System (IRIS) to help businesses file information returns electronically. If you have not used IRIS in the past, you can create an account by clicking “Sign in to IRIS” from the link above and then clicking “Create an account”. To sign up for IRIS, you’ll need the business’ Employer Identification Number (EIN) and the business’ Transmitter Control Code (TCC). If you do not have a TCC, you can apply for one here.

Friendly Ford of Roselle is hosting a Holiday Toy Drive that runs through Dec. 9. Those willing to donate should visit the dealership during regular business hours to drop off a new, unwrapped toy for a child in need. In addition, Friendly Ford is matching all donations and dropping them off at the Humanitarian Service Project.

On Dec. 9 Apple Chevrolet is hosting its 9^th Annual Toy Drive Party. The event will include live entertainment, a visit from Santa Claus, Balloons and Joey’s Food Truck. For more information or to donate online, visit, https://www.applechevy.com/.

[From the Desk of CATA Council, Dennis O’Keefe] Dealers are asking how can I retail vehicles under recall and still protect myself? The answer is probably not what we want to hear.

First of all, most dealers understand that they are prohibited by federal law from retailing new vehicles that are subject to recall. But how about used vehicles? Is a notice of the recall to my customer sufficient? What if I have my customer execute a Hold Harmless Agreement? How do recalls affect Certified pre-owned vehicles? And what are my obligations to notify customers in the service lane?

As an example of a notice of an air bag deficiency, Carfax uses the following language: "Specifically, in some vehicles, the driver's front airbag inflators could produce excessive internal pressure upon deployment. If an affected airbag deploys, the increased internal pressure may cause the inflators to rupture (break apart) and deploy abnormally. In the event of an inflator rupture, metal fragments could pass through the airbag cushion material possibly causing serious injury or fatality to you or others in the vehicle. Past ruptures like this have killed and injured vehicle drivers." Certainly, such language might dissuade a customer from purchasing this vehicle. But will it protect you, the seller, from possibly being sued and being held liable? Hardly! To the contrary, what such language accomplishes is to show that you, the dealer, had actual knowledge of a potential injury-causing condition and sold the vehicle notwithstanding, a recipe for a lawsuit.

Some manufacturers are suggesting notice language for possible future air bag recalls. Again, such notice, while valuable to the customer, would hardly protect you, as again you now have knowledge of a potential injury-causing condition.

What about having your customer sign a Hold Harmless Agreement? While such an agreement MIGHT protect you from a personal injury claim by your customer, it would not protect you from a claim from a passenger or third party who sustained injury due to a faulty air bag deployment or other recall defect. Again, a recipe for a lawsuit.

So, it appears the only way to protect against potential personal injury liability is to not retail the vehicle until it is fixed. This means potentially a lot of vehicles sitting on your lot and depreciating-not a pretty picture, but vastly superior to a multi-million-dollar lawsuit.

What does this mean for CPO, "warranted" or "guaranteed" vehicles with open recalls? Back in January, because of investigations concerning this issue, the FTC entered into a consent decree with General Motors and several dealers that prohibits dealers from claiming their used vehicles are safe or have been subject to a rigorous inspection (CPO) unless they are free of unrepaired safety recalls or unless the companies clearly disclose the recalls in close proximity to the inspection claims. This standard would apply to all.

The so-called FAST Act (Fixing America's Surface Transportation Act) of 2015 provides that a dealer can lose its federal statutory entitlement to be fairly reimbursed for performing safety recall repairs if it fails to notify an "in-brand" service customer of any unremedied safety recalls applicable to their vehicles, if their franchise, operating, or any other agreement with their manufacturer requires such a service lane notice.

Because of the above, dealers might want to consult with their own counsel. However, the CATA urges all dealers to log on to the safercar.gov website, on a regular basis as it is frequently updated, to check the VIN numbers of all used vehicles in inventory prior to sale. The website apparently can retain the information as to who logged in to check a particular VIN, so use this feature to your advantage, not your disadvantage. Don't let your employees make a mistake that will cost you! In the service lane, make sure you are notifying customers about in-brand service recalls, and obtain an acknowledgement from those customers stating either that they authorize recall work to be done, they are declining the recall work, or they will return to have the work done when the remedy becomes available.

[From CATA Preferred Partner, ACV Auctions] In the automotive retail industry, we can’t know what tomorrow will bring. But we can prepare for it the best we can. Not knowing what turns are ahead for our industry doesn’t put us behind the 8-ball. Instead, it allows us to learn and thrive. Currently, we are nearing the end of Q4 in 2023. Are we where we thought we would be a year ago?

Maybe.

I’m sure some guesses have been long forgotten. Perhaps some strong voices made predictions that stuck. The truth is, however, that we are at a point where we have decisions to make about the future. Automotive retail is robust even in the face of disruptions. The question will remain as to how we can overcome struggles and move from surviving to thriving. To answer this, we need to uncover where value rests in the process for the modern consumer. Everything you do from sourcing, managing, and selling automobiles needs to be done in a proactive manner.

Start with how you acquire. For many dealerships, what you can’t see can hurt you. This applies to the appraisal process and how you source inventory. If you are operating with blinders on, deploying an inefficient trade-in process, or not breaking free from outdated practices, you are putting yourself at risk.

What does this mean?

Simply put, the survival of your lot and business depends on vehicles. Automobiles are the lifeblood of your operations. However, the used car market continues to ebb and flow. This means that the better your stock, the better your ability to provide options to your community. If you couple a strategic approach to consumer acquisition with a data-backed philosophy, you gain insights that tell you not only what and why to stock…but where to get it.

There are plenty of modern solutions available to help you remedy this situation. It’s up to you to pick one and move beyond a simple sandwich board out in front of your lot.

But, don’t stop there. Build value into how you manage your inventory with a next-generation system. Never before has there been such a glut of solutions for your dealership. With data as a component, you learn the best cadence for your daily, weekly, and monthly tasks. You’ll get the upper hand on merchandising and marketing, and discover new avenues to connect with consumers and improve the overall experience. This impacts customer satisfaction, retention, and brand loyalty.

Now, value will never go out of style. As it stands, there are different approaches and styles to how a dealership can sell vehicles to the public. But every shopper is different. Their story, their trade-in, their desire…it produces a unique method for how they want to engage with your dealership, find their automobile, and finally drive it home.

Never discount how much the brick-and-mortar or digital shopping experience can bring a smile to a consumer’s face. Your dealership needs to offer multiple touchpoints. And each of these touchpoints needs to provide value. Always be giving and thinking outside the box. What would you want if you were purchasing a vehicle for yourself?

While many consumers will view buying a car as simply a transaction, you need to build further value into the process in order to create repeat business, drive brand awareness, and manage your reputation. Specifically for the importance of your ratings, encourage customers to engage with you on multiple levels through social media or search engines. Google is your friend and brings many options to enhance your brand’s presence online.

However, not seeing the full picture can hurt you. Much like if you do not take the time to properly assess a vehicle or walk a customer through the appraisal process, ignoring the building or nurturing aspect of the transaction will leave a bad taste in the shopper’s mouth.

Value is valuable. It’s up to you to break down your operations into a series of spots where you can give more to the customer. Only then will you be able to integrate new technologies that streamline consumer acquisition, maximize inventory management, and bolster your ability to sell more vehicles at a higher gross. Modern consumers are looking for benefits. And modern dealerships are poised to deliver value more than ever before.

The NADA recently sent a letter urging U.S. House members to vote in favor of H.R. 4821, the House Interior-Environment Appropriations bill, which includes a one-year limitation to stop the Environmental Protection Agency (EPA) from using funds to finalize or implement its unrealistic electric vehicle (EV) mandate that the fleet be 67.5% by 2032. H.R. 4821 passed the House on November 3.

 The inclusion of the “no funds shall” language was aided by the McClain letter, which urges Republican leadership to preserve the House language stopping these EV mandates and attempting to keep the provision in the final Fiscal Year 2024 funding bill. That letter currently has more than 200 signers by state (issue brief). There will also likely be a Democratic letter to discuss the problems with the EV mandate.  

Along the same line, the CATA has heard from a handful of its dealer members who signed on to an electronic petition that has been circulating urging the Biden administration to “tap the brakes” on the proposed EPA mandates. More than 1,000 dealers have signed the petition. Read and consider the petition here.

The IRS recently announced adjustments affecting the dollar limitations on 401(k) plans for tax year 2024. Since these changes impact everyone who currently sponsors (or is considering sponsoring) a 401(k) plan, the NADA is sharing a chart reflecting the changes with all members, not just those who currently sponsor a NADA Retirement plan.

Now is the time to plan any changes to your personal 401(k) contribution strategy for 2024 and to ensure that your payroll system will capture the new limits beginning in January. Helping dealers and their employees reach their financial goals is our mission. Let us help you ensure that the 401(k) plan that you sponsor is keeping up with the needs of your dealership.

The CATA in partnership with the NADA and Empower have created a unique relationship through which Empower offers flexible, competitive 401(k) plans with fiduciary support and an award-winning service model. For more information, please contact us directly or complete a request for a plan comparison. CATA dealers interested in learning more or seeking to schedule a plan comparison can do so by calling Joseph Orlando at 312-404-3232.

The NADA organized a Zoom meeting earlier this week for automobile trade association leaders from across the country with Hyundai’s VP of Sales & Marketing Sean Gilpin to gather more information from Hyundai on its recent partnership announcement with Amazon.

We’ve recapped some of the key points here:

• According to Hyundai, the primary objective of program was to deliver innovative experiences and reach new audiences/customers.
• The current structure of the partnership is in a pilot program/beta testing only. Furthermore, this is only open to Amazon employees and their friends/family members—at least at this time during the pilot.
• 8 dealers are in the pilot and most dealers were selected due to proximity to larger Amazon offices.
• The 18 dealerships in the pilot are represented within five states: Seatle, LA, NYC, Atlanta and Denver.
• Pilot launch date is January 2024. General availability launch date (based on feedback/key learnings received from pilot) will launch in April 2024. Hyundai’s goal is to share key learnings from pilot with the NDAC in February 2024 prior to the General Availability launch date in April.
• The process is as follows: the vehicle is discovered via Amazon and the checkout includes the deal jacket, pricing rebates, lending, products all occur via the individual dealer. Hyundai Capital is the only lender. The final transaction, paperwork and vehicle delivery will be finalized at the dealership.
• Complaints/issues with a transaction? Complaint will go to everyone: Hyundai, dealer and Amazon and the parties will work it out together.
• There are no fees for the dealers to participate in the Amazon program (opt-in only), nor are there fees for dealers to integrate its systems.
• Amazon will take the deposit and then distribute that to the dealer (this is the same process that goes for all brokers on Amazon). Amazon will not store social security numbers or other personal information.
• If the customer doesn’t qualify for financing via Hyundai Capital, then the customer will be notified and sent to the dealer to explore other options.
• Regarding whether dealers can offer additional packages/add-ons to the customer? Right now, Hyundai Capital is the only financing option, but perhaps down the road (after pilot) there will be a menu of options from which the consumers may choose.
• Regarding the compensation structure between Hyundai and Amazon, there is no other monetization (i.e. Amazon isn’t getting a cut of the vehicle sold via its platform) other than the added value of the media partnership between Hyundai and Amazon.
• In regard to Amazon’s investment in Rivian stock, the question “Is this a learning for Amazon to learn the process and business at Hyundai dealers’ expense?” Sean Gilpin says he can’t comment on that model on behalf of Amazon, but he did point out that Cox Automotive has invested in brands like Rivian and Lucid.
• What about Amazon’s return policy? All vehicles are backed by Hyundai’s Shopper’s Assurance programs which translate to the individual dealer.
• Trade-ins are not part of the initial pilot launch. Hyundai says that trade-ins would be incorporated down the road, but that Hyundai will count on dealers’ guidance to best facilitate that process. Amazon isn’t in the car business, which is why they want to partner with Hyundai on this process.
•  No comparison to Costco or Sam’s Club programs, according to Hyundai, other than the loyal customer base/cost transparency. The comment was that Dealertrack programs are more similar in that they help the customer locate the vehicle but the transaction takes place via the dealer.
• NADA will ask for a statement from Amazon regarding how customer data collected via this process will be utilized. It was noted that there are varying privacy laws per state so gathering this information is critical prior to the pilot launch (i.e. will dealers need to alter their disclosure agreements).

We will continue to share more once additional information becomes available throughout the beta program.

The Western Golf Association (WGA) awarded Dennis O’Keefe, CATA general counsel, with the Donald D. Johnson Lifetime Achievement Award for his work with the Evans Scholarship. The mission of the Western Golf Association/Evans Scholars Foundation is as follows: “We change lives — on golf courses, in classrooms, and in communities. Our world-class amateur and professional golf events enable us to provide deserving caddies with transformational college educational experiences that go well beyond full tuition and housing scholarships. In doing so, we prepare young people to become leaders who give back so that others may follow.”

O’Keefe served as WGA Director in 1992 and as Chairman from 2014-2015. He was instrumental in bringing the Western Amateur to the Glen View Club in 2021, when the club raised $1 million for Evans Scholars.

Congratulations to Dennis O’Keefe!