4-90-414. Informal proceeding as precedent.

4-90-414. Informal proceeding as precedent. (a)(1) Any manufacturer doing business in this state, entering into franchise agreements for the sale of its motor vehicles in this state, or offering express warranties on its motor vehicles sold or distributed for sale in this state, shall operate or participate in an informal dispute settlement proceeding located in the State of Arkansas which complies with the requirements of this section. (2) The provisions of § 4-90-406(b)(1) and (2) concerning refunds or replacement do not apply to a consumer who has not first used this informal proceeding before commencing a civil action, unless the manufacturer allows a consumer to commence an action without first using this informal proceeding, or unless the manufacturer has failed to make the disclosure required by § 4-90-404(b). (3)(A) The consumer shall receive adequate written notice from the manufacturer of the existence of the proceeding. (B) Adequate written notice may include the incorporation of the informal dispute settlement proceeding into the terms of the written warranty to which the motor vehicle does not conform. (b) The informal dispute proceeding shall meet the following criteria: (1) The informal dispute proceeding must comply with the minimum requirements of the Federal Trade Commission for informal dispute settlement proceedings as set forth in 16 C.F.R. § 703.1 et seq., as in effect on the date of adoption of this subchapter, unless any provision of 16 C.F.R. § 703.1 et seq. is in conflict with this subchapter, in which case the provisions of this subchapter shall govern; (2) The informal dispute proceedings must prescribe a reasonable time, not to exceed thirty (30) days after the decision is accepted by the buyer, within which the manufacturer or its agent must fulfill the terms of its decisions; (3)(A) No documents shall be received by any informal dispute proceeding unless those documents have been provided to each of the parties in the dispute at or prior to the proceeding, with an opportunity for the parties to comment on the documents either in writing or orally. (B) If a consumer is present during the informal dispute proceeding, the consumer may request postponement of the proceeding meeting to allow sufficient time to review any documents presented at the time of the meeting, which had not been presented to the consumer prior to the time of the meeting; (4)(A) The informal dispute proceeding shall allow each party to appear and make an oral presentation within the State of Arkansas, unless the consumer agrees to submit the dispute for decision on the basis of documents alone or by telephone, or unless the party fails to appear for an oral presentation after reasonable prior written notice. (B) If the consumer agrees to submit the dispute for decision on the basis of documents alone, then the manufacturer or dealer representatives may not participate in the discussion of the dispute; (5) Consumers shall be given an adequate opportunity to contest a manufacturer's assertion that a nonconformity falls within intended specifications for the vehicle by having the basis of the manufacturer's claim appraised by a technical expert selected and paid for by the consumer prior to the informal dispute settlement hearing; (6) A consumer may not be charged with a fee to participate in an informal dispute proceeding; and (7) Any party to the dispute has the right to be represented by an attorney in an informal dispute proceeding. (c)(1) The informal dispute proceeding shall annually submit a pool of not fewer than six (6) members to the Consumer Protection Division of the Office of the Attorney General. (2) Selected strictly by rotation, one (1) member shall hear disputes scheduled for a particular session unless the consumer requests a panel of three (3) members, in which case three (3) members, also selected by rotation, shall hear disputes scheduled for a particular three-member session. (3) If the informal dispute proceeding deems it appropriate to require the services of an independent investigator, the investigator shall be selected from a pool of not fewer than four (4) members who are submitted annually to the division and from which the particular investigator shall be selected strictly by rotation.