15-3961-cv
CMS Volkswagen Holdings LLC v. Volkswagen Group of America, Inc.

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
28th day of October, two thousand sixteen.

Present:    AMALYA L. KEARSE,
            DENNIS JACOBS,
            ROSEMARY S. POOLER,
                              Circuit Judges.
_____________________________________________________

CMS VOLKSWAGEN HOLDINGS, LLC,

                                 Plaintiff - Appellant,

HUDSON VALLEY VOLKSWAGEN, LLC,

                                 Plaintiff,

                        v.                                15-3961-cv

VOLKSWAGEN GROUP OF AMERICA, INC.,

                                 Defendant - Appellee,

LASH AUTO GROUP, LLC,

                        Defendant.
_____________________________________________________

Appearing for Appellant:         Russell P. McRory, Arent Fox LLP (Michael P. McMahan, on the
                                 brief), New York, NY.
Appearing for Appellee:        Randall L. Oyler, Barack Ferrazzano Kirschbaum & Nagelberg
                               LLP (Steven J. Yatvin, on the brief), Chicago, Ill.

      Appeal from the United States District Court for the Southern District of New York
(Román, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is VACATED and
REMANDED.

        CMS Volkswagen Holdings, LLC d/b/a Palisades Volkswagen appeals from the June 6,
2014 opinion and order of the United States District Court for the Southern District of New York
(Román, J.) dismissing its complaint brought pursuant to the New York Franchised Motor
Vehicle Dealer Act (the “Dealer Act”). CMS Volkswagen Holdings, LLC v. Volkswagen Group
of Am., Inc., 25 F. Supp. 3d 432 (S.D.N.Y. 2014). The district court denied Palisades’ motion for
reconsideration and reargument on October 3, 2014, and the parties stipulated to dismissing the
remaining claims in favor of a final judgment entered by the district court on November 10,
2015. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        While this appeal was pending, the New York Court of Appeals issued its opinion in
Beck Chevrolet Co. v. Gen. Motors LLC, 27 N.Y.3d 379 (2016). Answering a certified question
from our Court, the New York Court of Appeals held that franchisor sales performance standards
that rely on statewide data that do not take into account local brand popularity violates Section
463(2)(gg) of the Dealer Act. Id. at 389-94. The district court when it rendered its opinion did
not have the benefit of the New York Court of Appeals’ decision, which rejected the statutory
interpretation and conclusions of a case on which the district court here relied. We remand so
that the district court may consider Beck’s impact in the first instance. The district court is free to
proceed in whatever manner it deems best on remand, including allowing plaintiffs an
opportunity to replead.

        Upon the conclusion of the proceedings before the district court, the jurisdiction of this
Court to consider a subsequent appeal may be invoked by any party by notification to the Clerk
of this Court within ten days of the district court’s decision, in which event the renewed appeal
will be assigned to this panel. See United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).

    Accordingly, the judgment of the district court is hereby VACATED and the matter
REMANDED for further proceedings consistent with this order. Each side to bear its own costs.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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