9 1 NOTIFICATION OF TERMINATION OR CANCELLATION 2 OR FAILURE TO REVIEW 3 SEC. 105. (a) Prior to termination or cancellation, or 4 failure to renew, a franchise, a franchisor shall furnish noti 5 fication to the franchisee affected thereby 6 7 8 9 10 11 (1) in the manner described in subsection (e); and (2) except as provided in subsection (b) (1), not less than ninety days prior to the date on which such franchise is to be terminated or cancelled, or not renewed. (b) (1) In circumstances in which it would not be rea12 sonable for a franchisor to furnish notification pursuant to 13 subsection (a) (2), such franchisor shall furnish notification 14 to the franchisee affected thereby on the earliest date on 15 which furnishing of such notification is reasonably prac16 ticable. 17 (2) With respect to any termination or cancellation, or 18 failure to renew, a franchise to which paragraph (1) applies, 19 the franchisor may net establish a new franchise relationship 20 with respect to such franchise before the expiration of the 21 thirty-day period which begins on the date notification was 22 posted, except that a franchisor may, where specified in the 23 franchise, repossess any facilities subject to the franchise and 24 operate such facility through his own employees or agents 79-674 O 77 - 2 10 1 during such thirty-day period in circumstances under which it would be reasonable to do so. (c) Notification furnished under this section (1) shall be in writing; (2) shall be posted by certified mail; and (3) shall contain (A) a statement of intention to terminate or cancel, or fail to renew, such franchise, together with the reasons therefor; (B) the date on which such termination or cancellation, or failure to renew, takes effect; and (C) a summary statement of the provisions of this title. ENFORCEMENT SEC. 106. (a) If a franchisor terminates or cancels, or 16 fails to renew, a franchise in a manner which does not com17 ply with the requirements of section 102 or 103, respec18 tively, the franchisee affected thereby may maintain a civil 19 action against such franchisor. Such action may be brought, 20 without regard to the amount in controversy, in the district 21 court of the United States in any judicial district in which 22 the principal place of business of such franchisor is located 23 or in which such franchisee is doing business, however, no 24 such action may be maintained unless commenced within 25 three years after the date of cancellation or termination, or 26 failure to renew such franchise. 11 1 (b) (1) The court shall grant such equitable relief as is 2 necessary to remedy the effects of any termination or can3 cellation of, or failure to renew, a franchise in a manner 4 which does not comply with the requirements of section 102 5 or 103, respectively, including declaratory judgment and 6 mandatory or prohibitive injunctive relief, including interim 7 equitable relief. 8 (2) In any action under subsection (a), the court shall 9 grant a preliminary injunction if 10 11 12 13 14 (A) the franchisee shows that his franchise has been terminated or cancelled, or not renewed; and (B) the franchisor does not demonstrate to the satisfaction of the court that such francisor is likely to prevail in a trial on the merits. 15 In any action under subsection (a), the franchisor shall 16 have the burden of proving that his termination or cancella17 tion of, or failure to renew, the franchise compiled with the 18 requirements of section 102 or 103, respectively. 19 (3) If the franchisee prevails in any action under sub20 section (a), the court shall award actual damages, and exem 21 plary damages where appropriate, and shall direct that rea22 sonable attorney and expert witness fees be paid by the 23 franchisor, unless the court determines that only nominal 24 damages are to be awarded to such franchisee, in which case 25 the court may, in its discretion, direct that such fees are to 26 be paid by the franchisor. 1 12 (4) The questions of whether to award exemplary dam 2 ages and the amount of such award shall be determined by 3 the court and not by the jury. 4 (c) (1) In any action under subsection (a) with respect 5 to a failure to renew, the court shall not compel a continua6 tion or renewal of the franchise relationship if the franchisor demonstrates to the satisfaction of the court that the basis for 8 such failure to renew is a reasonable business judgment on 9 the part of the franchisor. 10 (2) The reasonable business judgment defense to per11 manent injunctive relief specified in paragraph (1) shall not 12 affect any right of a franchisee to recover actual damages and 13 reasonable attorney and expert witness fees under subsec14 tion (b). 16 19 15 RELATIONSHIP OF THIS ACT TO EXISTING FRANCHISES SEC. 107. (a) Sections 102 and 104, and the pro17 visions of section 105 (relating to the furnishing of notifi18 cation with respect to termination or cancellation of a franchise before the conclusion of the term, or the expiration 20 date, stated in the franchise), shall not apply to any 21 franchise entered into prior to the date of enactment of 22 this Act. Sections 102 and 104, and such provisions of 23 section 105 shall apply to any franchise entered into on or after such date. 24 25 (b) Section 103, and the provisions of section 105 13 1 (relating to the furnishing of notification with respect to 2 failure to renew a franchise), shall apply to any franchise 3 4 5 6 7 in effect on the date of enactment of this Act or entered into after such date. RELATIONSHIP TO STATE LAW SEC. 108. No State, territory, possession, the District of Columbia, or the Commonwealth of Puerto Rico, or any 8 political subdivision thereof, may adopt, enforce, or con9 tinue in effect any law or regulation with respect to a termination or cancellation of, or a failure to renew, a franchise, 10 11 or the furnishing of notification with respect to a termina12 tion or cancellation of, or failure to renew, a franchise, which 13 is inconsistent with the provisions of this title. 14 15 16 17 18 19 TITLE II-MORATORIUM ON REFINERS INCREAS ING PERCENTAGE OF DISTRIBUTION OF GAS- COMPUTATION OF RETAIL MARKET SHARES SEC. 201. (a) Not later than the first day of the 20 second full calendar month beginning after the date of 21 enactment of this Act, the Administrator of the Federal 22 Energy Administration shall promulgate and make effective 23 a rule, under section 11 (b) (1) (A) of the Energy Supply 24 and Environmental Coordination Act of 1974, to require 25 each refiner to submit reports to the Administrator, on or |