Defining the Dark Side

In my articles and presentations, I jokingly use the dark side “Star Wars” reference to describe the forces that attack dealers. They include entities that pursue dealers with an overabundance of regulations, exposure, litigation, and oversight to further their own agendas. This month, I’d like to focus on four members of the dark side and offer a way to keep your operations out of their crosshairs.

1. The Federales: They are, by far, the most active members of the dark side. They include the Consumer Financial Protection Bureau (CFPB), the Federal Trade Commission (FTC), the Department of Justice, the Internal Revenue Service, banking regulators, and state divisions of motor vehicles, among others.

The CFPB was created as the primary consumer watchdog by the Dodd-Frank Act five years ago. The National Automobile Dealers Association led a successful effort to get dealers exempted from the bureau’s regulatory oversight. However, the rule of unintended consequences prevailed, with Dodd-Frank granting the FTC expanded authority with respect to motor vehicle dealers.

We’ve already seen dealers reach settlements with the FTC over such charges as deceptive advertising and failure to adequately safeguard consumers’ nonpublic personal information. Then there was the nine-store, Los Angeles-based Sage Auto Group, which the FTC charged with payment packing and yo-yo financing, among other things. It was the first time the FTC took action against a dealer for yo-yo financing. There are also other dealers actively fighting charges of credit application fraud.

2. Plaintiffs’ Attorneys: Pop open the yellow pages of your phonebook. There you’ll find more pages devoted to attorneys than dealers. Bottom line: you are outnumbered.

The plaintiffs’ bar remains as active as ever. Recent successful litigation against auto dealers involved Truth in Lending violations due to contracts not printing out properly and because contract dates didn’t match the dates customers signed. We’ve also seen litigation related to dealers not properly disclosing negative equity, as well as dealers not having permission to pull a credit report.

3. Attorneys General: You should know that “AG” really stands for “aspiring governor.” These people need votes to continue their political careers, and the attorney general’s office is usually just a stepping stone to the governor’s mansion. Most see the best way to garner votes is to aggressively pursue bad businesses that take advantage of consumers.

The consumer is all for that. Go after the scam artists who are trying to steal money from senior citizens, or the traveling band of roofers who leave leaking tops on houses. Just leave the honest auto dealers alone.

4. Local Media: During sweeps month, some dealer is going to get lambasted with a highly emotional exposé alleging that the dealer unfairly dealt with a consumer (or five). You can expect to see word bites from sympathetic “victims,” files containing hundreds of pages of paper thrown on the desk, and a look at a “secret” internal document alleging that the dealer screwed the consumer(s).

Primarily because of Privacy Rule concerns, the dealer never has an opportunity to make his or her case in the court of public opinion. The dealer can only say, “If it happened, we will take appropriate action,” and hope the adverse public opinion does not drive away business.

Preventative Medicine: So, what’s a dealer to do to defend his or her organization against the dark side? While there is nothing anyone can do to prevent being sued, there are steps a dealer can take to limit the likelihood of a dark side attack. The best way to protect your dealership and yourself from the dark side is to have an effective compliance management system in place. Here’s what you do:

• Appoint a compliance officer to oversee and manage the overall program. Make sure everyone knows who this individual is and the authority he or she has.
• Conduct a risk assessment of your processes using federal and state requirements or best practices as your benchmark.
• Develop and implement a policy and procedure manual to outline how your employees are expected to execute each part of the process.
• Train your employees on your policy and procedure manual. Train them again in six to nine months. Then update your policy and procedure manual and train them again. Repeat.
• Regularly audit the output of the process to confirm that it is in compliance with your policy and procedure manual.