Mall Chevrolet, Inc v. General Motors LLC

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-2283
____________
MALL CHEVROLET, INC.,
Appellant
v.
GENERAL MOTORS LLC
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 1-18-cv-15077)
District Judge: Honorable John R. Padova
____________
Argued: May 24, 2022
Before: BIBAS, MATEY, and PHIPPS, Circuit Judges.
(Filed: April 26, 2024)
____________
William M. Tambussi [ARGUED]
Jonathan L. Triantos
BROWN & CONNERY, LLP
360 N Haddon Avenue
P.O. Box 539
Westmont, New Jersey 08108

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Laura D. Ruccolo
CAPEHART SCATCHARD, P.A.
8000 Midlantic Drive
Laurel Corporate Center, Suite 300S
P.O. Box 5016
Mount Laurel, New Jersey 08054
Counsel for Mall Chevrolet, Inc.
James C. McGrath [ARGUED]
Michael A. Kippins
SEYFARTH SHAW LLP
Two Seaport Lane
Suite 1200, Seaport East
Boston, Massachusetts 02210
Jeremy A. Cohen
SEYFARTH SHAW LLP
620 Eighth Avenue, 32nd Floor
New York, New York 10018
Counsel for General Motors LLC
_______________________
OPINION OF THE COURT
_______________________
PHIPPS, Circuit Judge.
A motor vehicle manufacturer sought to terminate its
franchise agreement with one of the most successful car
dealerships in New Jersey after discovering evidence that the

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dealership had submitted false warranty claims for vehicle
repairs. The manufacturer also announced its intention to
recoup the amounts it paid in disputed warranty claims through
a chargeback process. The dealership then preemptively sued
the manufacturer under the New Jersey Franchise Practices Act
to prevent the termination of the franchise agreement and the
chargebacks. Neither of those claims nor any of the others
brought by the dealership survived summary judgment.
Now on appeal, the dealership challenges the District
Court’s summary-judgment rulings. For the reasons below,
there was no genuine dispute of material fact – the dealership
did submit false claims for warranty repairs – and the
manufacturer was entitled to judgment as a matter of law on
each of the appealed claims. Accordingly, on de novo review,
we will affirm the judgment of the District Court.
I. FACTUAL BACKGROUND
A. GM’s Reliance on Dealerships and Its
Contract with Mall Chevy
General Motors LLC, commonly abbreviated as ‘GM,’
manufactures and sells new motor vehicles. As part of its
business model, GM relies on independently owned and
operated authorized dealers to sell its brands of new motor
vehicles directly to customers for personal or business use.
In 1986, GM entered into a franchise agreement for the sale
and service of its motor vehicles with Mall Chevrolet, Inc., or
‘Mall Chevy’ for short. Under the 2015 version of the contract,
Mall Chevy, whose dealership was physically located in
Cherry Hill, New Jersey, was the ‘dealer,’ and its area of
primary responsibility was the Camden region. That contract
also included an assurance by Mall Chevy that one of its partial
owners, Charles W. Foulke III – whom the contract designated
as a ‘dealer operator’ – would “provide personal services by
exercising full managerial authority” over the operations of the
dealership. Dealer Sales and Service Agreement 2015,

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Standard Provisions, Art. 2 (JA147). For years, Mall Chevy
was one of GM’s top-performing Chevy dealers regionally and
nationally.
B. Mall Chevy’s Performance of Warranty
Repairs for GM
The franchise agreement obligated Mall Chevy to service
vehicles, and that included warranty repairs on qualified
vehicles. After performing warranty work, Mall Chevy could
submit a reimbursement claim to GM for parts and a reasonable
amount of labor. In the contract, Mall Chevy promised that its
claims for payment would be “true and accurate.” Dealer Sales
and Service Agreement 2015, Standard Provisions, Art. 11.2
(JA159). As a matter of practice, GM allowed Mall Chevy to
submit reimbursement claims for warranty work without
supporting documentation.
Despite that flexibility, the contract established several
internal controls. Mall Chevy had to maintain a uniform
accounting system, and it had to retain for at least two years
and make available upon GM’s request the supporting
documentation for a warranty repair. In addition, Mall Chevy
agreed to allow GM “to access, examine, audit, and take copies
of any of the [required] accounts and records.” Id., Art. 11.3
(JA159). And if, after an audit, GM could not verify a warranty
repair, then it could recover the amounts paid for parts and
labor through a chargeback. Most consequentially, if Mall
Chevy submitted a false claim to generate a payment that
would not otherwise be due, then GM could terminate the
franchise agreement without affording Mall Chevy an
opportunity to cure that breach.
One of the key supporting documents for service work,
including warranty repairs, is a job card. A job card is
supposed to have several pieces of information related to the
service work requested and performed. That information
includes the date of service, the vehicle identification number,
the vehicle’s odometer reading, the customer’s name and

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contact information, the details of a customer’s concerns or
complaints, and the customer’s signature authorizing repairs
(or a signature by a service manager along with an explanation
for the absence of a customer’s signature).
Some of that job-card information is available from other
sources. For instance, when advertising used vehicles, some
vendors, such as CarMax and Carvana, make available on their
websites vehicle identification numbers and the corresponding
mileage for vehicles in their inventory. With the names and
contact information for those vendors available online, the
other information on a job card – the detailed description of a
customer’s concerns and an authorized signature – is critical to
a job card’s integrity.
To perform service work, including warranty repairs, Mall
Chevy employed service advisors, a dispatcher, and
technicians. The service advisors had significant responsibility
for preparing the job cards, including entering the information
about the vehicle and the customer. The dispatcher was
responsible for assigning the repair order to a technician, who
would repair the vehicle and record the work done on the job
card before returning the job card to the service advisor.
As part of their compensation from Mall Chevy, service
advisors and the dispatcher received commissions on the
amount of service work performed. The commission for
service advisors was tied to the repair work performed on their
job cards. The commission for the dispatcher was based on the
overall volume of service work performed, excluding revenues
attributed to the body shop. The calculation of those
commissions included warranty repair work.
C. Mall Chevy’s Problematic Claims for
Warranty Repairs
In May 2017, as part of a regional review, GM examined
warranty reimbursement claims submitted by Mall Chevy.
Through two letters – one dated May 16, the other May 19 –

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GM informed Mall Chevy of the results of its review of the
dealership’s warranty-claim practices.
The May 16 letter was ominous. It articulated GM’s
suspicion that Mall Chevy was falsely claiming to have
performed warranty work on what may be called ‘ghost
vehicles’ – vehicles that were not actually repaired by Mall
Chevy. Based on its finding that “a high number of Mall
Chevrolet’s warranty cases [were] being processed for used
vehicle locations, resulting in legitimate questions as to the
circumstances of these repairs,” GM informed Mall Chevy that
it would not pay warranty claims for cars owned by three used-
car dealers – CarMax, Carvana, and DriveTime – without
GM’s prior approval. Letter from GM to Mall Chevy, May 16,
2017 (JA6569).
That message prompted an immediate response from one
of Mall Chevy’s service advisors, Ray Moffatt, whose
compensation included a commission on warranty work. He
resigned that day. In a text message to several of his Mall
Chevy colleagues, Moffatt let them know that he quit and that
Mall Chevy’s general manager “knows everything, the truth.”
Screenshot of Moffatt Text Message (JA6616). Moffatt closed
his text message with, “Sorry guys good while it lasted.” Id.
The next letter, dated May 19, detailed GM’s findings, and
it carried additional consequences. GM identified warranty
claims for over $98,000 that were invalid because the
corresponding job cards lacked required information or an
authorized signature. GM also found other problematic
warranty claims totaling more than $16,000 related to out-of-
warranty work, the use and retention of GM parts, improper
repeat repairs, and work not performed. As a result of those
findings, GM announced that it was charging back
$114,178.60 in warranty payments. Mall Chevy did not
challenge that chargeback.

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In the three weeks following that letter, three employees in
Mall Chevy’s service department in addition to Moffatt ceased
working there. One was the dispatcher, who, like Moffatt,
received a commission based in part on the performance of
warranty work. Also, the dispatcher along with one of the
other employees were recipients of Moffatt’s text message.
Even then, GM’s diligence was not complete: on July 5,
2017, it announced that it would audit Mall Chevy. The audit
examined an eleven-and-a-half-month period, from August 2,
2016, to July 14, 2017, and it involved on-site auditors as well
as a review of the electronic claims that Mall Chevy had
submitted.
As a result of the audit, GM prepared a 94-page Debit
Deviation Report. That report, dated April 30, 2018, identified
517 deviations on job cards related to 346 vehicles (the job
cards for some vehicles had multiple deviations associated
with them). In total, GM had paid Mall Chevy $672,176.59 for
that warranty work. That amount included claimed warranty
work on ghost vehicles – 186 of the deviations involved 130
vehicles whose presence at the dealership was “not
substantiated.” Debit Deviation Report (JA4838–4932).
D. GM’s Notice of Termination of the Franchise
and Its Intent to Chargeback Amounts
Claimed for Warranty Repairs
Within days of completing the Debit Deviation Report, GM
sent a notice-of-breach letter to Mall Chevy. That letter, dated
May 3, 2018, relayed the findings of the audit by highlighting
the 517 deviations. It also attached the Debit Deviation Report
and identified four claims that were facially fraudulent based
on the information Mall Chevy’s employees had recorded on
the job cards.1 The letter then gave Mall Chevy thirty days to
1 GM explained that those four claims were fraudulent because
(i) one job card listed a mileage number greater than what was
recorded on a later-submitted claim on the same car by a GM

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submit additional documentation to clear the deviations or to
provide “a detailed explanation, together with a comprehensive
plan describing the precise steps that [Mall Chevy] will take to
ensure that [it] will abide by all its obligations under [the
contract].” Letter from GM to Mall Chevy, May 3, 2018
(JA190). Finally, the letter warned that if Mall Chevy did not
timely respond with the requested information, then GM would
chargeback the $672,176.59 in problematic warranty claims
and would reserve the right to terminate the franchise.
Mall Chevy’s May 31 response was not an act of contrition.
The cover letter accused GM’s auditors of “intentionally
claiming issues that do not exist,” and professed that “[t]here
is no fraud or false claims involved here and GM presents no
evidence of fraud.” Response Letter from Mall Chevy to GM,
May 31, 2018 (JA193). Mall Chevy included in its response
nearly a thousand pages of documents, including some job
cards, and it asserted that those documents addressed “each and
every claimed deviation.” Id. (JA192). But beyond that
document dump, Mall Chevy offered no further explanation.
That correspondence did not convince GM – it still believed
that Mall Chevy had submitted false claims for warranty
repairs. On July 31, GM sent a notice-of-termination letter to
Mall Chevy. The letter explained that, despite the volume of
pages provided, Mall Chevy’s response resolved only 12 of the
517 deviations on the Debit Deviation Report, totaling
$16,143.55. And Mall Chevy’s flat denials of the four
examples of fraud were inadequate, according to GM. Citing
to specific contractual obligations, GM informed Mall Chevy
dealership in Georgia; (ii) one job card omitted an odometer
reading for which the technician’s time report and time ticket
did not reflect any work on the vehicle; (iii) one job card listed
a technician code that did not belong to a Mall Chevy
employee; and (iv) one job card reported a lower odometer
reading for a vehicle than it had on the two prior occasions that
it was serviced by Mall Chevy.

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that its submission of false claims for warranty work
constituted a material breach of the contract. With that
explanation, the letter notified Mall Chevy of GM’s intention
to terminate the contract on October 1, 2018, and to chargeback
the value of the remaining unexplained deviations – $656,033.
II. PROCEDURAL HISTORY
A. Mall Chevy’s Initiation of This Lawsuit
Against GM
On September 20, 2018, days before GM’s announced
effective date for termination and chargebacks, Mall Chevy
filed a civil suit against GM in the Superior Court of New
Jersey. Most of Mall Chevy’s claims were brought under the
right of action created by New Jersey’s Franchise Practices Act
for violating its protections. See N.J. Stat. § 56:10-10 (“Any
franchisee may bring an action against its franchisor for
violation of this act . . . to recover damages sustained by reason
of any violation of this act and, where appropriate, shall be
entitled to injunctive relief.”). Mall Chevy first claimed that
GM lacked the good cause required under the Act for
terminating the franchise agreement, and it sought to
permanently enjoin GM from relying on the grounds stated in
the notice of termination to terminate the agreement (Count I).
See N.J. Stat. § 56:10-5 (making it unlawful for a franchisor to
terminate a franchise without good cause).2 Mall Chevy also
claimed that GM violated § 56:10-15(f) of the Act by seeking
unsubstantiated chargebacks, and Mall Chevy sought to enjoin
GM from finalizing the chargebacks identified in the notice of
termination (Count V). In two of its other counts, Mall Chevy
2 Mall Chevy’s wrongful-termination claim triggered the
automatic preliminary injunction provision of the Franchise
Practices Act, which afforded Mall Chevy “all rights and
privileges of a franchisee as if notice of termination had not
been given” pending the final disposition of the action. N.J.
Stat. § 56:10-30(a). GM does not contest the constitutionality
of that provision.

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alleged that GM imposed unreasonable performance standards
on Mall Chevy in violation of § 56:10-7.4(a) of the Act
(Count II) and that GM used an arbitrary and unreasonable
process to gauge Mall Chevy’s performance in violation of
§ 56:10-7.4(d) of the Act (Count III).3 In addition to injunctive
relief, Mall Chevy requested compensatory damages, punitive
damages, a declaratory judgment, and attorney’s fees and
costs.
GM timely removed the case to the District Court on
diversity grounds: the parties were completely diverse,4 and the
3 The other three counts – one under the statute and two
common-law claims – are not subject to this appeal. The
statutory claim was for failure to reimburse warranty services
in violation of § 56:10-15(a) of the Act (Count IV), and the
parties stipulated to its dismissal with prejudice. The two
common-law claims were for breach of contract based on non-
reimbursed warranty repairs (Count VI), and for breach of the
implied covenant of good faith and fair dealing on several
grounds, including by conducting bad-faith audits of Mall
Chevy (Count VII). The District Court rejected those at
summary judgment, and that portion of the ruling has not been
appealed. See Mall Chevrolet, Inc. v. Gen. Motors LLC,
2021 WL 426193, at *17 (D.N.J. Feb. 8, 2021).
4 Mall Chevy is a citizen of New Jersey by its incorporation
and its principal place of business – both of which are in New
Jersey. GM, as a limited liability company, takes on the
citizenship of its members and sub-members, see Lincoln
Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir.
2015), which renders it a citizen of Delaware and Michigan.
Its sole member is General Motors Holdings LLC, whose sole
member is General Motors Company, a Delaware corporation
with its principal place of business in Michigan.

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amount in controversy exceeded $75,000.5 See 28 U.S.C.
§ 1441; id. § 1332(a)(1).
B. The Cross-Motions for Partial Summary
Judgment
After over a year of discovery, the parties cross-moved for
partial summary judgment.
Mall Chevy sought summary judgment on two of its
statutory claims. It argued that it should succeed on the
wrongful-termination claim (Count I) because GM lacked
good cause to terminate the franchise. Mall Chevy also
asserted that GM was not entitled to the proposed chargebacks
because it did not establish that the claimed warranty repairs
were fraudulent (Count V).
GM cross-moved for summary judgment on all remaining
counts except for the claim that GM did not substantiate its
intended chargebacks (Count V). In response to the wrongful-
termination claim (Count I), GM argued that it had good cause
to terminate the franchise agreement because Mall Chevy had
materially breached the agreement by submitting false claims
for warranty work. With respect to the other claims now on
appeal (Counts II and III), GM argued that Mall Chevy did not
produce any evidence of compensatory damages needed to
5 The amount in controversy, which must exceed $75,000, is
met here based on the value of the claimed chargebacks as well
as the value of the terminated dealership, neither of which is to
a “legal certainty” less than the jurisdictional amount.
SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 202 (3d
Cir. 2022) (quoting Auto-Owners Ins. Co. v. Stevens & Ricci
Inc., 835 F.3d 388, 395 (3d Cir. 2016)); see also St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)
(“It must appear to a legal certainty that the claim is really for
less than the jurisdictional amount to justify dismissal.”).

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sustain those claims, and that punitive damages were
unavailable in the absence of compensatory damages.
In addition to its summary-judgment motion, GM moved to
strike Mall Chevy’s jury demand for the unsubstantiated-
chargebacks claim (Count V). As argued by GM, because that
claim sought equitable relief, it did not belong before a jury.
The District Court denied Mall Chevy’s motions and
granted GM’s motions. See Mall Chevrolet, Inc. v. Gen.
Motors LLC, 2021 WL 426193, at *1 (D.N.J. Feb. 8, 2021). In
rejecting Mall Chevy’s wrongful-termination claim, the
District Court determined that GM had good cause to terminate
the franchise agreement because there was no genuine dispute
that Mall Chevy had materially breached the contract by
submitting false claims for warranty repairs. See id. at *11–
12. The District Court also denied Mall Chevy’s remaining
statutory and common-law claims unrelated to chargebacks
because Mall Chevy did not make a showing of compensatory
damages. See id. at *17. Relying on that same rationale – the
lack of compensatory damages – the District Court denied Mall
Chevy’s request for punitive damages. See id. Finally, the
District Court granted GM’s motion to strike Mall Chevy’s
demand for a jury trial because the remaining claim for
unsubstantiated chargebacks sought only equitable relief. See
id. at *18–19.
Before a bench trial on Mall Chevy’s unsubstantiated-
chargebacks claim, GM sought and obtained leave to move for
summary judgment on that count. In its motion, GM invoked
the defense in § 56:10-9 of the Franchise Practices Act, which
bars a franchisee from bringing a claim under the Act if the
franchisee has failed to substantially comply with the franchise
agreement. See N.J. Stat. § 56:10-9. Equipped with the
§ 56:10-9 defense, GM argued that Mall Chevy’s material
breach constituted a failure to substantially comply with the
contract, such that Mall Chevy could not sustain its claim to
enjoin allegedly unsubstantiated chargebacks. That argument,

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too, persuaded the District Court, which then entered summary
judgment in GM’s favor. See Mall Chevrolet, Inc. v. Gen.
Motors LLC, 2021 WL 2581665, at *5 (D.N.J. June 23, 2021).
C. Mall Chevy’s Appeal
Through a timely notice of appeal of the District Court’s
final decision, Mall Chevy invoked this Court’s appellate
jurisdiction. See 28 U.S.C. § 1291; Fed. R. App. P. 4(a)(1)(A).
Mall Chevy now argues that the District Court erred in
rejecting its four statutory claims.6
In opposing Mall Chevy’s arguments, GM focuses on
sustaining its proof that Mall Chevy materially breached the
franchise agreement. Such a breach, GM contends, provides
good cause to terminate the franchise agreement and
constitutes a failure to substantially comply with the agreement
for purposes of the § 56:10-9 defense.
6 In addition to relying on the arguments that it presented to the
District Court, Mall Chevy moved to certify three questions to
the New Jersey Supreme Court. See N.J. Ct. R. 2:12A-1. That
request was not waived or forfeited because it could not have
been raised in the District Court. See id. (permitting
certification only “if the answer may be determinative of an
issue in litigation pending in the Third Circuit and there is no
controlling appellate decision, constitutional provision, or
statute in [New Jersey]”). Those questions all relate to the New
Jersey Franchise Practices Act: (i) whether the actions of rogue
employees that were unbeknownst to a dealer operator but that
otherwise qualified as a material breach of contract constitute
good cause under the statute to terminate a franchise;
(ii) whether a franchisor may rely on after-acquired evidence
to establish that it had good cause for terminating a franchise;
and (iii) whether the statute’s defense for failure to
substantially comply with the terms of a franchise agreement
applies to claims of unlawful chargebacks.

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III. DISCUSSION
A. Mall Chevy’s Claim for Wrongful
Termination of Its Dealership
Mall Chevy disputes the entry of summary judgment
against its wrongful-termination claim count on three grounds.
It contends that summary judgment was improper because
there is a genuine dispute about whether GM had good cause
for terminating the franchise agreement. Mall Chevy also
argues that the Franchise Practices Act does not permit a
franchisor to use after-acquired evidence to show good cause,
which GM did. In addition, Mall Chevy denies that it was the
franchisee and asserts that the real franchisee was the dealer
operator, Foulke, who could not be deemed to materially
breach the agreement based on the actions of Mall Chevy’s
rogue employees. Those challenges have no merit.
1. No Genuine Dispute of Material Fact
Prevents Summary Judgment in Favor
of GM on the Wrongful-Termination
Claim.
a. GM Must Prove Good Cause for
Terminating the Dealership.
In interpreting Rule 56, the Supreme Court has outlined two
closely related methods for a movant to succeed at summary
judgment. First, under the standard approach, the moving
party may produce material facts, established as genuinely
undisputed, that entitle it to judgment as a matter of law. See
Fed. R. Civ. P. 56(a) (“The court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.”); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248–52 (1986) (explaining the meaning of the terms
‘material’ and ‘genuine’). Second, under the Celotex
approach, a moving party may instead demonstrate that the
nonmoving party has not made “a showing sufficient to
establish the existence of an element essential to that party’s

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case . . . on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(emphasis added).
In 2011, New Jersey supplemented the protections afforded
to motor vehicle franchisees under the Franchise Practices Act,
and one consequence of that legislation was that it foreclosed
the Celotex method for motor vehicle franchisors seeking
summary judgment on claims that they wrongfully terminated
a franchise. See Act of May 4, 2011, ch. 66, § 12, 2011 N.J.
Laws 496, 513 (codified at N.J. Stat. § 56:10-30(c)). By its
terms, that enactment imposed the burden of proving good
cause on the franchisor – even when the franchisor was a
defendant:
In any action or alternate dispute resolution
proceeding with respect to the termination of a
motor vehicle franchise, the motor vehicle
franchisor shall have the burden of proving that
termination of the motor vehicle franchise does
not violate [§ 56:10-5].
N.J. Stat. § 56:10-30(c); see also id. § 56:10-5 (setting forth
requirements for terminating a franchise, including the good-
cause requirement); cf. Addington v. Texas, 441 U.S. 418, 423
(1979) (explaining that in “the typical civil case” the plaintiff,
not the defendant, bears the burden of proof under a
preponderance-of-the-evidence standard). Because the motor
vehicle franchisee does not have the burden of proving
wrongful termination, the franchisor cannot successfully move
for summary judgment under the Celotex approach, which
applies only when the non-moving party bears the burden of
proof for an element of a claim at trial. See Celotex Corp.,
477 U.S. at 322.
Although the Celotex approach is not viable here, GM may
still prevail under the standard method for summary judgment,
but that requires establishing that the material facts are
undisputed. A fact is material if its resolution “might affect the

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outcome of the suit under the governing law.” Anderson,
477 U.S. at 248; see also SodexoMAGIC, LLC v. Drexel Univ.,
24 F.4th 183, 203 (3d Cir. 2022). And a dispute is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248;
see also SodexoMAGIC, 24 F.4th at 203–04. To show that no
material facts are genuinely disputed, GM, as the moving
party, may rely on several sources, including deposition
testimony, documents, electronically stored information,
sworn statements, stipulations, admissions, and interrogatory
answers. See Fed. R. Civ. P. 56(c)(1)(A). Even still, Mall
Chevy, as the nonmoving party, may object to the
consideration of any fact within those materials that “cannot be
presented in a form that would be admissible in evidence,” Fed.
R. Civ. P. 56(c)(2), and reasonable inferences from the facts
are drawn in Mall Chevy’s favor, see Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
b. The Submission of False Claims
for Warranty Repairs Qualifies as
Good Cause for Terminating the
Franchise Agreement.
GM’s entitlement to judgment as a matter of law on Mall
Chevy’s wrongful-termination claim depends on the Franchise
Practices Act. See Anderson, 477 U.S. at 248 (“[T]he
substantive law will identify which facts are material.”). That
statute defines “good cause” for terminating a franchise as the
“failure by the franchisee to substantially comply” with the
requirements of the franchise agreement. N.J. Stat. § 56:10-5.
That good-cause standard is similar to the legal concept of
material breach, i.e., a breach that discharges the non-
breaching party’s obligation to perform its future contractual
obligations. See Nolan v. Lee Ho, 577 A.2d 143, 146 (N.J.
1990) (“When there is a breach of a material term of an
agreement, the non-breaching party is relieved of its
obligations under the agreement.”); see also Restatement
(Second) of Contracts § 237 (Am. L. Inst. 1981) (“[I]t is a
condition of each party’s remaining duties to render

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performances to be exchanged under an exchange of promises
that there be no uncured material failure by the other party to
render any such performance due at an earlier time.”).
Consistent with that understanding, in interpreting the
Franchise Practices Act, New Jersey courts have recognized
that a franchisee’s material breach of a franchise agreement
constitutes good cause for termination of a franchise. See
Dunkin’ Donuts of Am., Inc. v. Middletown Donut Corp.,
495 A.2d 66, 72–73 (N.J. 1985); see also Gen. Motors Corp.
v. New A.C. Chevrolet, Inc., 263 F.3d 296, 317 n.8 (3d Cir.
2001) (explaining that there is “no real or practical difference
between a conclusion that a party materially breached a
contract, and a conclusion that the party failed to substantially
comply with its obligations under a contract”). Thus, if Mall
Chevy materially breached the franchise agreement, then as a
matter of law, GM would have good cause to terminate the
franchise.
To determine if a breach is material, rather than minor, New
Jersey courts typically consider several factors. See Roach v.
BM Motoring, LLC, 155 A.3d 985, 991 (N.J. 2017) (“To
determine if a breach is material, we adopt the flexible criteria
set forth in Section 241 of the Restatement (Second) of
Contracts (1981).”).7 But if a contract identifies a term as
‘material’ or an act or omission as a ‘material breach,’ then
New Jersey courts generally defer to the parties’ agreement on
the materiality of that term, act, or omission. See Dunkin’
Donuts, 495 A.2d at 75 (“[B]ecause the franchise contracts are
clear in making the underreporting of sales a material breach
of contract, thereby entitling [the franchisor] to terminate the
franchise and receive damages due, equity should and must
respect these contractual provisions.”).8 And here, the
7 See also Restatement (Second) of Contracts § 241 (proposing
five factors for determining whether a breach is material).
8 See also In re Gen. DataComm Indus., Inc., 407 F.3d 616,
624 (3d Cir. 2005) (deferring to a contract’s definition of
material breach); 23 Richard A. Lord, Williston on Contracts

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franchise agreement identifies several acts as material
breaches, including the submission of false claims “which
would not otherwise have qualified for payment.” Dealer Sales
and Service Agreement 2015, Standard Provisions, Art. 14.5.5
(JA165). Thus, if Mall Chevy submitted false claims for
warranty repairs, then GM would have good cause as a matter
of law to terminate the franchise agreement. See Mall Chevy,
Inc., 2021 WL 426193, at *9 n.7 (recognizing that there was
no dispute “that the submission of such claims, if proven,
would constitute a material breach”); see also Dunkin’ Donuts,
495 A.2d at 71 (explaining that the Franchise Practices Act
protects only innocent franchisees); Amerada Hess Corp. v.
Quinn, 362 A.2d 1258, 1267 (N.J. Super. Ct. Law Div. 1976)
(“[P]rotection of the public’s welfare points toward
termination of dishonest franchisees.”).
c. There Is No Genuine Dispute that
Mall Chevy Submitted False
Claims for Warranty Repairs on
Ghost Vehicles.
GM produced an abundance of factual support for the
conclusion that Mall Chevy submitted false claims for
warranty work – at least for repairs on ghost vehicles. The
foundational piece of evidence is the Debit Deviation Report.
Even if not every one of the 517 discrepancies identified in that
report constitutes a material breach, the submission of a claim
for warranty work on a ghost vehicle, as a false claim, would
§ 63:3 (4th ed. 2018 & Supp. 2023) (“Where the contract itself
is clear in making a certain event a material breach of that
contract, a court must ordinarily respect that contractual
provision.”). But cf. In re Weinstein Co. Holdings LLC,
997 F.3d 497, 507–09 (3d Cir. 2021) (declining to interpret
every term in a contract as material based on a nine-word
phrase buried in a covenant provision, which did not provide
for termination or any other remedy and was better viewed as
a condition precedent to a payment obligation).

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be a material breach of the franchise agreement. And the Debit
Deviation Report identified 186 instances of “[v]ehicle
presence not substantiated” related to claimed warranty work
on 130 vehicles. Debit Deviation Report (JA4838–4932). Yet
even after GM requested that Mall Chevy explain the
deviations with the forecast of grave consequences for
inadequate responses, Mall Chevy provided explanations for
only 12 of the deviations – and none of those related to
warranty work on ghost vehicles. That absence of explanations
is telling, but not dispositive.
To further prove the falsity of Mall Chevy’s claims for
warranty repairs, GM produced sworn statements from
knowledgeable employees of CarMax, Carvana, and
DriveTime. In aggregate, those vendors averred that they had
no record of repairs on 96 vehicles that Mall Chevy claimed to
have serviced under warranty at their behest. The affidavits
from CarMax and Carvana added another layer of detail: 78 of
the vehicles that Mall Chevy claimed to have repaired were not
even in New Jersey when Mall Chevy stated that it performed
the warranty work.9
GM also identified a motive and an opportunity for Mall
Chevy employees to commit fraud. Because the service
advisors and the dispatcher received a commission from Mall
Chevy based on the volume of warranty work they performed
or managed, they had financial motives to submit false claims
for warranty repairs. In addition, GM’s dealership-friendly
process for warranty claims – which did not require the
9 In its reply brief, Mall Chevy argues, for the first time, that
the three used-car dealers do not keep complete records, so the
lack of records is minimally probative. Putting argument-
forfeiture concerns aside, this argument mischaracterizes the
record, which supports at most the conclusion that the used-car
dealers did not have complete paper records, not that the
dealers’ complete recordkeeping systems – paper and
electronic – were incomplete.

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submission of job cards and other supporting evidence of the
repairs – presented an opportunity to fabricate claims for
warranty repair work on ghost vehicles. And much of the
information needed to make a claim for a warranty repair on a
ghost vehicle was available online: used-car dealerships post
vehicle identification numbers and odometer readings for
vehicles in their inventory, along with those dealers’ names
and contact information.
Beyond motive and opportunity, there is a clincher – the
text message from former service advisor Ray Moffatt on
May 16, 2017. That message lamented that Mall Chevy’s
general manager “knows everything, the truth,” and it
communicated that Moffatt quit that day. Screenshot of
Moffatt Text Message (JA6616). Moffatt closed the message
with the sentiment, “Sorry guys good while it lasted.” Id.
Those few words conveyed a great deal: in context, they
operate as an admission by Moffatt that he was involved with
others at Mall Chevy in submitting false warranty claims.
Also, Mall Chevy’s conduct after GM’s May 2017 letters
is consistent with the coordinated submission of false warranty
claims by its employees.10 In the three weeks after its receipt
of GM’s May 19 letter describing job-card deviations, four
employees in its service department, including Moffatt, no
longer worked there. One of them was the dispatcher, who
received commissions based on the amount of warranty work
that Mall Chevy performed. Two of them, including the
dispatcher, received Moffatt’s text message.
Finally, the testimony of Mall Chevy’s general manager,
who was its corporate representative for a Rule 30(b)(6)
deposition, admitted that one of the four claims that GM
10 In opposing summary judgment, Mall Chevy did not object
to the consideration of this evidence. Cf. Fed. R. Civ.
P. 56(c)(2); Fed. R. Evid. 407 (allowing for the exclusion of
evidence of subsequent remedial measures).

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identified as fraudulent was indeed false. See Fed. R. Civ.
P. 30(b)(6). He testified that “once [he] investigated this claim,
it was easy to determine that it was false,” Colender Dep.
213:8–10 (JA4295), because the job card associated with that
claim “was false,” id. at 237:9–15 (JA4301).
In response to that avalanche of evidence of its false claims
for warranty repairs on ghost vehicles, Mall Chevy musters
only incomplete and feeble answers. It relies on the deposition
testimony of the former dispatcher. He testified that he had a
specific memory of working on one car that CarMax stated
was in Denver, Colorado, at the time Mall Chevy claims it did
a repair. At most, that testimony would create a genuine
dispute for one of the 96 ghost vehicles identified by CarMax,
Carvana, and DriveTime. That statement does nothing to call
into question the evidence regarding the other ghost vehicles.
Mall Chevy also looked to Moffatt’s deposition to create a
genuine issue of material fact. Moffatt testified that he
“assume[d]” he had performed these repairs, but he did not
“have definitive proof” that each vehicle was at Mall Chevy.
Moffatt Dep. 124:24–25 (JA7141). Because Moffatt hedged
and speculated, those statements do not create a genuine
dispute regarding the falsity of warranty claims for any of the
ghost vehicles. See Jutrowski v. Twp. of Riverdale, 904 F.3d
280, 288–89 (3d Cir. 2018) (holding that “[b]are assertions,
conclusory allegations, or suspicions will not suffice” to create
a genuine issue of fact for trial (quoting D.E. v. Cent. Dauphin
Sch. Dist., 765 F.3d 260, 269 (3d Cir. 2014))); Gonzalez v.
Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 264 (3d Cir.
2012) (explaining that “bare and self-serving” testimony does
not create a genuine dispute of material fact where there is also
strong, contradictory “circumstantial evidence”). Moffatt’s
most specific responsive testimony – that “[i]f [he] wrote it up
and had keys, then . . . [he] did do the work” – also did not
discredit GM’s ghost-vehicle theory of fraud. Moffatt Dep.
125:2–3 (emphasis added) (JA7141). That testimony was
conditioned on Moffatt having the keys, yet if he had the keys,

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then the vehicle would have already been at Mall Chevy, and
it would not be a ghost vehicle. Thus, that testimony, even on
its own terms, did not address GM’s evidence that Mall Chevy
submitted false warranty claims for ghost vehicles. For these
reasons, Moffatt’s testimony does not prevent summary
judgment in favor of GM. See In re Weinstein Co. Holdings
LLC, 997 F.3d 497, 510 (3d Cir. 2021) (“[T]he summary
judgment standard does not require a court to draw improbable
inferences.”).
The location information on the job cards likewise did not
generate a genuine dispute of material fact. The job cards for
the ghost vehicles indicate that each of the vehicles was at Mall
Chevy on the day of the claimed warranty repair. But in
opposing summary judgment, Mall Chevy did not rely on the
location information from the job cards, so it forfeited that
argument. And even if Mall Chevy had offered the job cards
for their truthfulness, GM could have objected since those out-
of-court statements about the location of the vehicles would be
hearsay. See Fed. R. Evid. 801(c) (defining ‘hearsay’), 802
(declaring that hearsay is inadmissible); cf. id. 803(6)(E)
(making inapplicable the business-records exception when the
opponent shows that “the source of information or the method
or circumstances of preparation indicate a lack of
trustworthiness”).
For these reasons, GM has met its burden on the summary-
judgment record under the standard method: it demonstrated
undisputed facts that Mall Chevy submitted false warranty
repair claims for ghost vehicles, and as matter of law, that
constitutes good cause to terminate the franchise agreement.

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2. A Franchisor May Rely on Evidence
Acquired after a Notice of Termination
to Prove Good Cause for the
Termination of a Motor Vehicle
Franchise.
To avoid summary judgment on its wrongful-termination
claim, Mall Chevy argues that the sworn statements from the
used-car dealers cannot be considered at summary judgment.
According to Mall Chevy, two statutory provisions bar a
franchisor from proving good cause through the use of
evidence that it did not identify in its notice of termination.
First, the Franchise Practices Act requires the franchisor to
provide “all the reasons for such termination” in writing
60 days before the termination. N.J. Stat. § 56:10-5. Second,
under a 2011 amendment applicable to motor vehicle
franchises, to prove good cause, a franchisor is “limited to the
grounds for termination set forth in the written notice.” Id.
§ 56:10-30(c). So, for Mall Chevy to succeed on this
argument, it must establish that one or both of the statutory
terms – ‘reasons’ or ‘grounds’ – prevents a franchisor from
using evidence that it did not identify in its notice of
termination.
Neither of those terms extends that far. As understood
contemporaneously with the enactment of the Franchise
Practices Act in 1971 and the amendment in 2011, neither of
‘reasons’ nor ‘grounds’ had a plain meaning that included
providing notice of forthcoming evidence (akin to a pretrial
disclosure). See American Heritage Dictionary of the English
Language 1086 (1969) (defining ‘reason’); American Heritage
Dictionary of the English Language 775 (4th ed. 2009)
(defining ‘ground’). Nor did the specialized legal usage of
those terms at those times have such a meaning. See Reason,
Black’s Law Dictionary (4th ed. 1968); Ground, Black’s Law
Dictionary (9th ed. 2009). And without any other basis for
interpreting those terms more broadly, neither statutory
provision bars GM from using evidence that it later obtained to
support the reasons and grounds that it identified in its notice

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of termination.11 Thus, it is unnecessary to assess whether
summary judgment on the wrongful-termination claims could
be sustained without the sworn statements from the used-car
dealers.12
11 As an alternative to addressing the question of a franchisor’s
ability to rely on after-acquired evidence to support its decision
to terminate a franchise, Mall Chevy has moved this Court to
certify this question to the New Jersey Supreme Court. See
N.J. Ct. R. 2:12A-1 (allowing certification of questions of law
from the Third Circuit to the New Jersey Supreme Court). But
as explained above, this legal issue has a clear answer and
therefore does not merit certification. See United States v.
Defreitas, 29 F.4th 135, 141 (3d Cir. 2022) (“Certifying a
question where the answer is clear is inappropriate and
unnecessary.”); Travelers Indem. Co. of Ill. v. DiBartolo,
171 F.3d 168, 169 n.1 (3d Cir. 1999) (refusing to certify a
question of state law because “the issue was [not] sufficiently
difficult to command the attention of [the state’s highest
court]”). Accordingly, that request will be denied.
12 In a footnote in its opening brief followed by two paragraphs
in its reply brief, Mall Chevy asserts that GM’s reliance on the
affidavits violates the after-acquired evidence doctrine. But
Mall Chevy provides no support for the proposition that New
Jersey courts apply that doctrine to claims other than those
based on invidious discrimination in employment. See
Redvanly v. Automated Data Processing, Inc., 971 A.2d 443,
447–48 (N.J. Super. Ct. App. Div. 2009) (applying the doctrine
in the context of employment discrimination); see generally
McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 357
(1995) (developing the after-acquired evidence doctrine in the
context of a claim for age discrimination in employment, but
only after recognizing that the legislation authorizing the claim
was “part of an ongoing congressional effort to eradicate
discrimination in the workplace” and that it “reflect[ed] a
societal condemnation of invidious bias in employment
decisions”). Accordingly, that doctrine as developed under

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3. The Dealer Operator, Charles Foulke,
Is Not the Franchisee, and the
Wrongful Acts of Mall Chevy’s
Employees Are Attributed to Mall
Chevy for Purposes of Establishing
Good Cause.
To salvage its wrongful-termination claim, Mall Chevy
offers a two-part argument against good cause. It contends,
first, that the dealer operator, Charles Foulke – not Mall Chevy
– was the franchisee. From there, Mall Chevy asserts that even
if its employees committed the fraud, they were rogues who
acted without Foulke’s knowledge or approval such that those
acts do not amount to good cause for terminating the franchise
agreement.
The first component of the argument – that Foulke was the
franchisee – conflicts with Mall Chevy’s prior positions in this
case, is incorrect, and is ultimately self-defeating. Mall
Chevy’s complaint alleges no fewer than six times that Mall
Chevy, not Foulke, is the franchisee. And Mall Chevy did not
seek to amend those allegations, as would be necessary to take
such a contrary factual position. See Sovereign Bank v. BJ’s
Wholesale Club, Inc., 533 F.3d 162, 181 (3d Cir. 2008);
Parilla v. IAP Worldwide Servs., VI, Inc., 368 F.3d 269, 275
(3d Cir. 2004). Also, the franchise agreement, which identifies
Mall Chevy as the dealer and Foulke as the dealer operator,
makes clear that the dealer operator is not a party to the
agreement:
New Jersey law does not apply in this context to bar GM’s use
of sworn statements from used-car dealers to corroborate its
previously disclosed premise that Mall Chevy’s false claims
justified termination of the franchise.

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Although this Agreement is entered into in
reliance on the personal services of the Dealer
Operator, the Dealer entity specified in this
Agreement is the only party to this Agreement
with General Motors.
Dealer Sales and Service Agreement 2015, Standard
Provisions, Art. 2 (emphasis added) (JA147). So Foulke, who
was not even a party to the franchise agreement, was not the
franchisee. Finally, if Foulke were the franchisee, then all of
Mall Chevy’s statutory claims would fail because the statute
allows only franchisees to sue for statutory violations. See N.J.
Stat. § 56:10-10 (“Any franchisee may bring an action against
its franchisor for violation of this act . . . .”); see also Tynan v.
Gen. Motors Corp., 591 A.2d 1024, 1025, 1029–31 (N.J.
Super. Ct. App. Div. 1991) (holding that a plaintiff other than
a franchisee as defined by the Act lacks standing to bring a
claim under the Act against a franchisor), rev’d in part on other
grounds, 604 A.2d 99, 100 (N.J. 1992) (per curiam). So rather
than rescuing Mall Chevy’s wrongful-termination claim, the
counterfactual hypothesis that Foulke was the franchisee
would prevent Mall Chevy, as an entity other than the
franchisee, from suing under the Franchise Practices Act. For
these reasons, Mall Chevy fails to establish the first necessary
component of its argument, and there is no need to address the
second half of its contention.13
13 Mall Chevy’s alternative request to certify this issue to the
New Jersey Supreme Court will be denied. With Mall Chevy
as the franchisee, there is no need to address whether the
actions of non-managerial, rogue employees that were
unknown to the franchisee can provide good cause for a
franchisor to terminate a franchise.

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B. Mall Chevy’s Failure to Substantially Comply
with the Franchise Agreement Bars Its
Remaining Claims.
Mall Chevy also appeals the District Court’s entry of
summary judgment on its three other statutory claims. One of
those claims (Count V) sought to enjoin GM from charging
back Mall Chevy $656,033 in warranty claims on the grounds
that GM did not substantiate the chargebacks in violation of
N.J. Stat § 56:10-15(f). The other two claims sought damages
for imposing unreasonable performance standards in violation
of § 56:10-7.4(a) (Count II), and for using an arbitrary and
unreasonable process to gauge performance in violation of
§ 56:10-7.4(d) (Count III).
While the Franchise Practices Act expressly allows
franchisees to sue franchisors for violating its provisions, see
N.J. Stat. § 56:10-10, it also provides franchisors a defense to
all such claims, see id. § 56:10-9. Under that defense, a
franchisor may avoid liability for any claim under the Act if
the franchisee has not substantially complied with the franchise
agreement:
It shall be a defense for a franchisor, to any action
brought under this act by a franchisee, if it be
shown that said franchisee has failed to
substantially comply with requirements imposed
by the franchise and other agreements ancillary
or collateral thereto.
Id.; see Maintainco, Inc. v. Mitsubishi Caterpillar Forklift Am.,
Inc., 975 A.2d 510, 518 (N.J. Super. Ct. App. Div. 2009) (“For
any claim, the franchisor may assert as a defense that ‘said
franchisee has failed to substantially comply with requirements
imposed by the franchise and other agreements ancillary or
collateral thereto.’” (quoting N.J. Stat. § 56:10-9)); Simmons v.
Gen. Motors Corp., Oldsmobile Div., 435 A.2d 1167, 1178
(N.J. Super. Ct. App. Div. 1981) (recognizing that the statutory
provision provides a complete defense to any claims brought

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under the Franchise Practices Act); see also New A.C.,
263 F.3d at 320 n.11 (characterizing § 56:10-9 “as a complete
defense in ‘any action’ instituted under the [Franchise
Practices Act] by a franchisee”).
That defense applies here to bar Mall Chevy’s remaining
statutory claims. Through the franchise agreement, Mall
Chevy agreed “to timely submit true and accurate . . . claims
for payments.” Dealer Sales and Service Agreement 2015,
Standard Provisions, Art. 11.2 (JA159). And by seeking
reimbursement for warranty repair work on ghost vehicles,
Mall Chevy violated that term because “the false information
was submitted to generate a payment to [Mall Chevy] for a
claim which would not otherwise have qualified for payment.”
Id., Art. 14.5.5 (JA165). Thus, in submitting false claims, Mall
Chevy did not substantially comply with the contract, and its
other statutory claims are foreclosed by the defense.14
Mall Chevy disputes that outcome. It argues that the
§ 56:10-9 defense does not apply to chargeback claims, which
were added to the Act by later legislation. But as long as that
addition of the chargeback provision, codified at § 56:10-15(f),
was within the Franchise Practices Act, then the defense would
apply. See N.J. Stat. § 56:10-9 (providing a complete defense
for franchisors against “any action brought under this act”
(emphasis added)). And the legislation adding § 56:10-15(f)
was explicit that the chargeback-protection provision operated
as an amendment to the Franchise Practices Act. See Act of
14 Because the § 56:10-9 defense bars Mall Chevy’s other
statutory claims, it is unnecessary to consider the additional
arguments that Mall Chevy raises on appeal relating to those
claims, viz., that the District Court erred by denying Mall
Chevy’s jury trial request for its unsubstantiated-chargebacks
claim that sought only injunctive and declaratory relief and that
the District Court erred in granting summary judgment to GM
on these claims by finding that Mall Chevy had not offered
proof of compensatory damages.

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Mar. 12, 1999, ch. 45, § 3, 1999 N.J. Laws 270, 272, 274
(stating that the 1977 supplement to the Franchise Practices
Act “is amended” to add, among other things, the provision
codified at § 56:10-15(f)). So, the statutory basis for the
chargeback claim, § 56:10-15(f), is part of the Franchise
Practices Act and is therefore subject to the § 56:10-9 defense.
As a last resort, Mall Chevy urges disregard of the plain
statutory text of § 56:10-9. It argues that a literal interpretation
of the defense would lead to an absurd result: motor vehicle
franchisors will be able to make chargeback claims as soon as
a franchisee fails to substantially comply with a franchise
agreement – even if the non-compliance is unrelated to the
chargebacks. See Mercedes-Benz of N. Am., Inc. v. Dep’t of
Motor Vehicles ex rel. Fifth Ave. Motors, Ltd., 455 So. 2d 404,
410–11 (Fla. Dist. Ct. App. 1984) (reasoning that a “literal
interpretation” of § 56:10-9 “would undo the New Jersey
legislature’s attempt to correct the unequal bargaining power
between franchisors and franchisees” and “would result in an
almost absurd interpretation”). Mall Chevy further contends
that such an outcome would contradict the codified purpose of
the Franchise Practices Act, which recognized the “disparity of
bargaining power between national and regional franchisors
and small franchisees.” N.J. Stat. § 56:10-2.
The absurdity is not there. This is not a situation where the
nexus is lacking between the failure to substantially comply
and the proposed chargebacks – Mall Chevy’s false claims
were the basis for the chargebacks. And as the New Jersey
Supreme Court has recognized, the Franchise Practices Act
does not protect franchisees “who have lost their franchises as
a result of their own neglect or misconduct.” Dunkin’ Donuts,
495 A.2d at 72.
More broadly, there is nothing absurd about the § 56:10-9
defense barring statutory claims for unsubstantiated
chargebacks, even in the absence of a nexus. The Franchise
Practices Act supplements the common-law causes of action,

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which would otherwise be available to franchisees to recover
unsubstantiated chargebacks. See Simmons, 435 A.2d at 1169
(recognizing claims by motor vehicle franchisee for breach of
contract and for unlawful termination under the Franchise
Practices Act). But cf. N.J. Stat. § 56:10-12 (identifying
limited circumstances in which causes of action other than
those provided in the Act are barred). With recourse available
under the common law, Mall Chevy’s inability to pursue a
statutory cause of action based on an unrelated failure to
substantially comply with the franchise agreement is hardly a
situation “where the absurdity and injustice of applying the
provision to the case would be so monstrous, that all mankind
would, without hesitation, unite in rejecting the application.”
1 Joseph Story, Commentaries on the Constitution of the
United States, § 427, at 303 (2d ed. 1851); see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts, § 37, at 237–38 (2012).
For similar reasons, the § 56:10-9 defense bars the
remaining statutory claims that Mall Chevy seeks to revive on
appeal. Those claims for imposing unreasonable performance
standards in alleged violation of § 56:10-7.4(a) and for using
an arbitrary and unreasonable process to gauge performance in
alleged violation of § 56:10-7.4(d) were likewise based on
statutory amendments to the Franchise Practices Act. See Act
of Mar. 12, 1999, ch. 45, § 5, 1999 N.J. Laws 276, 277 (adding
to the Franchise Practices Act, among other things, the
provisions codified at § 56:10-7.4(a) and (d)). They are thus
subject to the § 56:10-9 defense. And it is not absurd to bar
those claims based on Mall Chevy’s submission of false claims
for warranty work on ghost vehicles, especially in light of the
availability of alternative modes of redress for Mall Chevy
under common-law causes of action.
IV. CONCLUSION
For these reasons, we will affirm the judgment of the
District Court.

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