NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Pellegrino Chrysler Jeep, Inc. (Pellegrino), a car dealership located in Woodbury Heights, appeals from the final agency decision of the Motor Vehicle Franchise Committee (the Committee)2 denying Pellegrino's protest of a decision by franchisor Chrysler Group, LLC (Chrysler Group) to establish a new Chrysler Jeep franchise in Sicklerville, to be owned by Charles Foulke, Jr., and the Foulke Management Corporation (collectively "Foulke"). Following our review of the record, we conclude the record contains substantial credible evidence supporting the Committee's decision and that Pellegrino's claims of error lack merit. Accordingly, we affirm.

I.

We begin with an overview of the relevant statute. The Motor Vehicle Franchises Act (the Act), N.J.S.A. 56:10-16 to -31, prohibits a franchisor from granting a new franchise if it would cause injury to an existing franchisee or to the public:

The Act requires a motor vehicle franchisor to give its "existing franchisees in the same line make within [twenty] miles of the proposed [franchise] location ... not less than [ninety] days' advance written notice of its intention to grant, relocate, reopen or reactivate a franchise." N.J.S.A. 56:10-19. Existing franchisees within the "relevant market area," defined as the area within fourteen miles the proposed dealership, have the right to file a protest. N.J.S.A. 56:10-16(f); N.J.S.A. 56:10-19. A hearing on a protest is to be "conducted as a contested case in accordance with the provisions of the Administrative Procedure Act." N.J.S.A. 56:10-21 (citation omitted). At the hearing, the franchisor "shall have the burden of proving by a preponderance of the evidence that the proposed franchise or business will not be injurious." N.J.S.A. 56:10-21.

The proposed franchise will be considered "injurious" to the existing franchisees or the public unless the franchisor proves by a preponderance of the evidence:

N.J.S.A. 56:10-23(b) sets forth four situations in which injury will be "conclusively presumed"; however, there is no contention that any of these situations apply in this case.

II.

From the extensive hearing record, we have distilled the following as the most pertinent facts. Chrysler Group sells Chrysler, Jeep, Dodge, and Ram vehicles through a dealer network system. On May 14, 2007, Pellegrino opened in Woodbury Heights through a sales-and-service agreement with Chrysler Corporation (Old Chrysler), the predecessor to Chrysler Group. The dealership was owned by Mark Pellegrino; later, Stanton Singer bought a thirty-five-percent interest. The franchise was previously owned by Chrysler Jeep of Woodbury (CJ Woodbury), which struggled financially. Mark Pellegrino believed that CJ Woodbury was mismanaged and that he could make the dealership profitable with better management.

A. The Decision to Establish a New Chrysler Dodge Dealership

At the time Pellegrino opened, Martin Chrysler Jeep (Martin) had been operating for approximately fifteen years in Sicklerville, about nine miles from Pellegrino. However, Martin voluntarily closed in December 2008, citing financial difficulties. Steven Hoffman, a dealer placement manager for Chrysler Group, worked with dealers on enhancing their facilities and performance and in buying and selling dealerships. He testified that Chrysler Group divided its dealerships into "sales localities" as determined by consumer buying habits. The dealerships in the Camden Sales Locality were: 1) Pellegrino; 2) Performance Dodge in Woodbury (one mile from Pellegrino); 3) Dodge Chrysler Jeep City in Burlington; 4) Lucas Chrysler Dodge Ram in Mt. Holly; 5) Cherry Hill Dodge Chrysler Jeep; and 6) Mt. Ephraim Chrysler Dodge Ram. Within each sales locality were "trade zones," which were geographical locations used to assign each dealer's "fair share" of sales for each brand, based on census tracks. The Camden Sales Locality had six Jeep trade zones and seven Chrysler trade zones. Pellegrino was in the Woodbury Trade Zone. The proposed new Chrysler Jeep dealership was in the adjoining Sicklerville Trade Zone.

Chrysler measured dealer sales "effectiveness" in terms of "minimum sales responsibility" (MSR) by obtaining a market share (also called "market penetration") based on new vehicle registrations in the entire state. "Market share" was obtained by dividing all of the Chrysler products registered in the state by the number of new vehicles registered in the state. If the total registrations for all brands of vehicles in New Jersey was 100,000 and Chrysler had a 10% market share, the Chrysler dealerships in New Jersey would have to sell 10,000 vehicles. Responsibility for selling the vehicles would be "fair shared" to each dealership based on the number of dealers within the sales locality. If there was one dealer in the sales locality, that dealer would be responsible for 100% of the expected sales in that market, which would equal Chrysler's penetration in the state multiplied by the number of Chrysler registrations in that sales locality. If there were multiple dealers in that sales locality, the trade zones were used to calculate a dealer's fair share. To make that calculation, Chrysler made a fifty-fifty weight of the total number of registrations in the trade zone and the number of Chrysler registrations in the state; this was done separately for each line make resulting in different fair shares for Jeeps, Chryslers, etc. Although Chrysler previously used dealer sales as part of the calculation of fair share, it no longer did. At the end of the year, Chrysler would compare the dealer's actual sales to its fair-share portion of the MSR, and if the numbers were equal, the dealer would receive an MSR of 100%. Chrysler expected an MSR of 100%, which indicated that the dealer's performance equaled the state average, not that the dealer achieved all sales that could be achieved.

Old Chrysler declared bankruptcy in April 2009; however, it submitted a plan for reorganization. According to Hoffman, Old Chrysler's dealer network was inefficient because it was bloated; the brands were spread out among various dealers. "Project Genesis" was a plan instituted by Chrysler to eliminate dealerships and have the remaining dealers carry more than one brand at the same location. Pursuant to the bankruptcy plan, dealerships were "rejected" by the reorganized Chrysler Group, including five in a fourteen-mile ring from Pellegrino.3 The plan for the Camden Sales Locality was to have six consolidated dealerships. Ever since Martin closed in 2008, Sicklerville was an "open point" and the company wanted to locate a dealership there. Sicklerville was an attractive area to Chrysler Group because of the Turnersville Auto Mall, a large row of auto dealerships on Route 42 in Turnersville and adjacent Sicklerville, which was home to virtually all domestic and foreign auto manufacturers except Chrysler, Jeep, Dodge, and Ram.

B. Chrysler Awards the Sicklerville Open Point to Foulke

After Pellegrino declined the opportunity to fill the Sicklerville open point in exchange for giving up the Woodbury dealership, Foulke expressed interest in establishing a Sicklerville dealership and found an appropriate piece of property on Route 42 adjacent to the Turnersville Auto Mall. Foulke planned to build a $2 million facility, 9.3 air miles from Pellegrino. Chrysler Group originally approved Foulke's application for a Chrysler, Jeep, and Dodge dealership, but the Dodge franchise was dropped after a nearby Dodge dealership protested.

On April 27, 2001, Foulke entered an "Assurance of Voluntary Compliance" with the Attorney General after an Attorney General inquiry regarding possible violations of the New Jersey Consumer Fraud Act, the Consumer Protection Leasing Act, and the odometer statute.4 Almost eight years later, on March 23, 2009, Foulke entered into a consent agreement with the Attorney General to settle alleged violations of the Consumer Fraud Act, regulations governing motor vehicle advertising, and the used car lemon law. Foulke made no admission of liability, but agreed to pay a $450,000 settlement, in part to make restitution to buyers. Foulke said he settled these complaints for "goodwill," or because it was cheaper to settle than to litigate. In February 2012, Chrysler sent a letter to Foulke to discuss an "action plan" to improve its customer sales and service scores.

Pellegrino protested the proposed new dealership in Sicklerville, claiming the new dealership would have a "huge impact" on its car sales and parts business. As historical evidence, Pellegrino noted that when his predecessor, CJ Woodbury, competed with Martin in Sicklerville, both dealerships folded. Moreover, Pellegrino opened in May 2007 while Martin was still in business, yet did not begin to turn a profit until Martin closed in December 2008. From May 2007 to December 2007, Pellegrino lost $67,000. In 2009, Chrysler's bankruptcy hurt business, but the dealership's net earnings rose to $491,000. The dealership made $900,000 in net profits in 2010, and $1.1 million in 2011.

Pellegrino consistently sold vehicles in excess of its MSR. It was designated as a "Five-Star Dealer" for meeting high dealer standards, and won a "Silver Award" for meeting certain sales volumes. The dealership was well-capitalized. Chrysler Group had no complaints about Pellegrino's sales, service, parts, facilities, or financial situation. Rather, Hoffman and Brett Tunic — a Chrysler Group dealer network development manager — testified that Chrysler Group's intention was not to cause harm to Pellegrino by "stealing from each other," but to increase Chrysler's market share by taking sales from other manufacturers. Chrysler Group believed the proposed new dealership would benefit the public by increasing tax collections on sales, real estate, and employees, creating jobs both during construction and once the dealership opened, and adding competition for Chrysler products.

C. Expert Testimony

Sharif Farhat, who had testified as an expert in approximately 100 other cases, was qualified as an expert in dealer network analysis. Farhat was employed by Urban Science Applications, a consulting company that provided services to the automotive industry and worked for "essentially every auto manufacturer in operation in the United States." His particular job was to provide clients with a methodology to analyze data and business problems consistently. He had performed about 300 dealer network analyses. Chrysler Group retained Farhat to assess the adequacy of Chrysler's representation in the area in question and to assess the impact of the addition of the proposed Sicklerville dealership on other dealers.

Farhat used an eight-step process to perform a dealer network analysis: 1) identify the relevant geographic areas to be analyzed; 2) develop reasonable standards upon which dealer network performance can be judged and minimum levels of "sales opportunity" established; 3) compare actual dealer network performance to the standards for the purpose of quantifying the adequacy of current representation; 4) in the event that dealer network performance falls below a standard, identify the likely cause of the shortfall; 5) identify or evaluate a solution to any inadequacies identified; 6) assess the impact of the proposed action on the consuming public, same line-make dealers in the relevant area and the line make; 7) confirm the results derived from the analysis with case studies; and 8) finalize conclusions. According to Farhat, the procedure had been used for over twenty years, used actual data so as to minimize the need for subjectivity, and had been accepted in courts "hundreds of times."

To establish a benchmark for judging dealer performance, Farhat used Chrysler's state average market penetration and adjusted for local segment preferences; he referred to this as "expected average" or "market penetration." After determining the sales in each of the geographic areas, Farhat determined that Chrysler's market penetration was below average in all of the geographical areas considered for 2008-2011, which indicated that the existing Chrysler dealers had not adequately represented Chrysler. In other words, Chrysler dealers had not provided adequate levels of intra-brand or inter-brand competition. It also meant that the existing Chrysler dealer network was not providing prospective purchasers with adequately convenient customer care. He concluded the hole in the market was because customers had to travel to Woodbury instead of "auto row."

Farhat opined that, although there might be some impact on Pellegrino, more sales opportunities would be available and Pellegrino would have the opportunity to increase sales by "responding positively to the enhanced competition" that would result from the proposed location. The projected future growth mitigated concerns that the new dealership would harm Pellegrino. Chrysler had no interest in simply spreading around the same market share; rather, it believed that the new dealership would create increased opportunities by taking sales away from other manufacturers. In addition, Farhat opined that the proposed dealership would enhance the availability of stable, adequate, and reliable sales and service convenience for customers because it would fill a hole in the market left by the 2008 closure of Martin, by providing a new state-of-the-art facility that would promote the brand and make the dealer network more stable for sales and service.

John Matthews testified as an expert in quantitative analysis and dealer network planning on behalf of Pellegrino, and engaged in an analysis to determine the effect of adding the proposed Sicklerville dealership. Matthews rejected the use of a state average as an objective benchmark. Rather, he advanced the "Philadelphia Metro Market" as a benchmark, which is comprised of the New Jersey counties that substantially form the Camden Sales Locality, plus five additional counties in the greater Philadelphia area. He estimated that, should the new dealership open, Pellegrino stood to lose between twenty-five and fifty percent of sales. He asserted that the public interest would not be served by a new dealership because the consumer would have to "pick up the cost" of redundant capital investment and idle facilities. He concluded that Sicklerville was the "wrong place" for a new dealership and that a Marlton location presented a "better place."

Richard Neville, who was qualified as an expert in dealer operations, also testified on behalf of Pellegrino. He stated that the proposed Sicklerville dealership would not materially enhance the availability of stable, adequate and reliable sales and service, given that Pellegrino already provided adequate market representation through its sales department, service, parts inventory, customer relations, and facilities; however, the proposed dealership would affect Pellegrino's stability. Joseph Gardemal, an expert in accounting and dealer operations, reviewed the reports completed by Matthews and Neville and disputed their methodologies on behalf of Chrysler Group.

D. The ALJ and Committee Decisions

In a comprehensive twenty-eight page initial decision, Administrative Law Judge Elia A. Pelios (ALJ or ALJ Pelios) recommended that the agency reject Pellegrino's protest.5 The ALJ concluded that the manufacturer had proven the requisite factors under N.J.S.A. 56:10-23, which would allow it to establish the new dealership. The ALJ found that Chrysler Group's expert, Farhat, presented a more persuasive opinion as to the issue of potential injury to Pellegrino if the proposed Sicklerville location is built. He particularly approved of Farhat's methodologies, noting "[o]n balance, [Farhat] is better suited to evaluate the relevant market conditions, and I afford greater weight and adopt his opinions regarding the nature and impact of those conditions." The ALJ added that "[Matthews's] testimony as to those same conditions lack authoritativeness required to overcome the testimony of [Farhat], as he appeared to lack `sufficient specialized knowledge to be able to express and to explain the basis of that opinion'" (citation omitted).

According to the ALJ, the differences in opinion between Farhat and Matthews were attributable in part to their different study methodologies. For example, Matthews did not use a statutorily prescribed two-year period for data collection and made "multiple data entry errors" in his reports; he used a market area not recognized by Chrysler Group in its business practice nor contemplated by the statute; he did not consider market growth, but rather, relied on a "static market" theory; and he used "expected" sales in his calculations, whereas Farhat used actual sales.

The Committee adopted the ALJ's initial decision, and issued a Rule 2:5-1(b) amplification on December 3, 2014. The Committee found that: (1) "Pellegrino failed to meet its burden of proving that it met or exceeded the brand's performance in the rest of the [S]tate as to market penetration for the twenty-four month period prior to notice, and therefore cannot articulate the conclusive presumption set forth in N.J.S.A. 56:10-23(b)(1)"; (2) Pellegrino's expert "relied on projected sales and hypothetical sales, instead of looking at actual sales made into the Sicklerville Trade Zone and in doing so has not established the conclusive presumption in N.J.S.A. 56:10-23(b)(2)"; and (3) Pellegrino failed to establish a "conclusive presumption" regarding materially unfair or deceptive practices under N.J.S.A. 56:10-23(b)(4), finding Pellegrino's offering of "a Consent Agreement, a Voluntary Assurance, customer complaints, releases, settlements and arbitration awards" as inconclusive proof of alleged wrongdoing.

Further, the Committee found that the record supported the ALJ's conclusions that Chrysler Group satisfied its burden under N.J.S.A. 56:10-23(a). In particular, the Committee: (1) credited Chrysler Group's expert, Farhat, and found that Foulke would materially enhance sales and services in any of the potential market areas presented; (2) found that the stability of Pellegrino would not be affected; (3) found that Chrysler Group demonstrated that Pellegrino failed to provide adequate representation of the Chrysler Jeep line in the market area for at least a two-year period; and (4) found that Chrysler Group acted in good faith to fill the Sicklerville open point.

III.

On this appeal, Pellegrino raises the following points for our consideration:

Having reviewed the entire record, we conclude that several of these points are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in the comprehensive opinion of ALJ Pelios adopted by the Committee, and the Committee's seventeen-page amplification of final decision. We add the following comments and brief discussion.

Our role in reviewing the decisions of administrative agencies is limited. We are bound by factual findings and conclusions that are supported by the record taken as a whole, see In re Taylor, 158 N.J. 644, 655-58 (1999), and are obliged to defer to the agency's exercise of its administrative expertise, id. at 657-59, as long as the conclusions reached are not arbitrary, capricious or unreasonable, id. at 657.

As a threshold matter, we disagree with Pellegrino that, "given the fact that a new ALJ was substituted and no meaningful action was taken by the Committee, no deference should be given to the Initial Decision or the Amplification," as well as that no deference should be given to the expertise of the agency because no substantive regulations have been promulgated and the "Committee made no independent analysis of the facts and offered no expertise as to the proper interpretation of the statute." Rather, the replacement of ALJ Kerins is irrelevant because Pellegrino agreed another ALJ could decide the case without rehearing it. Moreover, ALJ Pelios based his rejection of Pellegrino's expert, Matthews, on flawed methodology rather than demeanor. The Committee's opinion, issued as a belated "amplification" when it had not issued a prior opinion, can still be considered. Accordingly, we employ the well-established test for appellate review of agency factfinding to determine whether the agency's decision was supported by substantial credible evidence. See Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004). Here, the agency's decision was based on comprehensive factfinding by ALJ Pelios which, in turn, was amply supported by the evidence.

Pellegrino argues that the decision of the Committee and ALJ failed to treat the proposed Chrysler and Jeep franchises separately, and when they are properly considered separately, no argument can be made that the existing franchisees have failed to offer stable, adequate, and reliable sales and service. However, as Foulke correctly contends, Pellegrino failed to raise this issue below, and thus we will not consider it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, the record clearly indicates that all of the parties, including Pellegrino, assumed the protest would be analyzed using a combined dealership. In the event Pellegrino believed the Chrysler and Jeep franchises should have been addressed separately, it should have raised the issue squarely prior to the hearing, as the issue would have significantly changed the focus of the experts' testimony and reports. Raising the issue in post-trial proposed findings of fact and law was not sufficient.

Pellegrino further argues that the decision failed to properly define "market area," a necessary prerequisite to applying the statutory factors set forth in N.J.S.A. 56:10-23(a)(1) and (3). We find no error.

The ALJ acknowledged Pellegrino's argument that the trade zone was the appropriate "market area" and also acknowledged that the statute did not expressly define "market area," making the issue one of "first impression." However, he accepted Farhat's testimony that under any potential definition of "market area" — including the Woodbury Trade Zone — the statutory factors in N.J.S.A. 56:10-23(a)(1) and (3) were met. Thus, it was unnecessary to delve into the precise definition of "market area." The amplification noted Pellegrino's exception to this ruling but rejected it given that the ALJ had accepted Farhat's testimony that under any definition of "market area," the statutory test had been met. Because the ALJ ruled that the statutory test had been met under any definition of "market area," we do not decide the issue further. See In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 370 (1961).

Pellegrino argues that Chrysler Group cannot satisfy N.J.S.A. 56:10-23(a)(3) because it conceded Pellegrino has quality facilities, equipment, parts, and personnel. However, that section requires a showing that the existing franchisees "have not provided adequate representation of the line make in their market areas for a period of at least two years based on the availability of motor vehicle sales and service facilities, equipment, supply of motor vehicle parts and qualified service personnel." Ibid. (emphasis added). The emphasized phrases indicate that the Legislature was concerned not just with whether an existing franchisee provided quality facilities, equipment, parts, and personnel, but also whether the availability of existing franchisees' facilities, equipment, parts, and personnel provided adequate representation of the line in the market area. Chrysler Group's expert testified that the existing franchisees' facilities did not provide adequate representation of the line in the market area because of inadequate sales. The ALJ credited the expert's testimony and found that Pellegrino's quality facilities did not address the "hole" in the market area caused by Chrysler's lack of representation in the Turnersville Auto Mall. The Committee's adoption of that finding was not arbitrary or capricious.

The ALJ's decision to credit the testimony of Chrysler Group's expert rather than Pellegrino's is fully supported on this record. Chrysler Group's expert, Farhat, rendered a detailed opinion which the ALJ found convincing for reasons he cogently explained. Pellegrino has not shown that the ALJ erred in accepting Farhat's opinion. It is well-settled that a trial court is free to accept or reject the testimony of either side's expert, or accept some testimony and reject the rest. Brown v. Brown, 348 N.J.Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002); Todd v. Sheridan, 268 N.J.Super. 387, 401 (App. Div. 1993). It is the role of the fact-finder to determine the facts and to either accept or reject the methodology used by an expert. Rubanick v. Witco Chem. Corp., 242 N.J.Super. 36, 55 (App. Div. 1990), modified on other grounds, 125 N.J. 421 (1991). Allegations that a witness "glossed over" significant factors are "properly the subject of exploration and cross-examination at trial" and for the fact-finder to consider. Ibid.

We next briefly address Pellegrino's argument that based on Foulke's history of bad customer service involving consumer complaints, arbitrations, and legal actions against it at its other dealerships, Foulke would not materially enhance sales and service to customers.

Although Foulke was accused of unfair and deceptive business practices, it did not admit any wrongdoing in the settlement of the lawsuits filed against it, and thus, the settlements cannot be used as admissions. See State v. Williams, 184 N.J. 432, 446 (2005). Further, settlements may be entered into for reasons other than liability, such as cost of litigation or goodwill. Thus, they are not necessarily probative of wrongdoing. Wyatt v. Wyatt, 217 N.J.Super. 580, 586 (App. Div. 1987).

While there was evidence to show that Foulke's dealerships have not met Chrysler's customer satisfaction goals, failure to meet company goals is not the same as engaging in unfair or deceptive business practices. Moreover, Chrysler still desired to have Foulke open another dealership, indicating that whatever problems Foulke's other dealerships had, Chrysler did not deem them serious enough to forgo a business relationship with Foulke. Even in the event that some percentage of customers had or will have an issue with Foulke, this does not necessarily mean that overall the dealership will not enhance the availability of stable, adequate, and reliable sales and service.

In sum, we conclude that Chrysler Group met its burdens under N.J.S.A. 56:10-23, and that Pellegrino's protest should be denied. The Committee's decision does not violate express or implied legislative policies, the record contains substantial evidence to support its findings, and in applying the legislative policies to the facts, the agency did not clearly err in reaching a conclusion that could have been reasonably made upon a showing of the relevant factors.

Affirmed.