Ruling that a Ford Motor Co. official’s promise to give auto dealer Kitty Van Bortel dibs on a sale of a rival Monroe County Ford dealership did not amount to a contract, a federal judge has dismissed Van Bortel’s lawsuit against Ford.
The owner of Subaru, Ford and Chevrolet dealerships in Monroe and Ontario counties, Van Bortel sued Ford in 2021 after the Buffalo-based West Herr Auto Group bought Webster-based Henderson Ford.
Originally filed in a Monroe County state Supreme Court in November 2021, Van Bortel’s court action was transferred to the Western District of New York federal court at Ford’s request one month later.
A key to the dispute is that while the buildings, real estate and inventory of U.S. auto dealerships are owned by their operators, the dealerships are franchises that can only be run under agreements with auto manufacturers like Ford Motor Co.
Van Bortel and her brother, Howard Van Bortel, who is also named as a plaintiff, cited in their court complaint a Ford official’s September 2021 promise that Ford would exercise its first right of refusal to itself purchase the Henderson franchise and then sell it to Van Bortel.
The Van Bortels also claimed that by allowing the Webster dealership to be sold to a male-owned firm instead of the woman-owned Van Bortel group, Ford discriminated against Kitty Van Bortel.
Despite Ford regional sales manager Paul Bucek’s promise and Kitty Van Bortel’s stated intention of purchasing Henderson Ford, Randy Henderson, former Henderson Ford owner, rejected an offer from Van Bortel and sold his Webster dealership to the West Herr group.
Though Ford district manager Bucek’s offer to give Van Bortel first crack at acquiring Henderson Ford was memorialized in a Sept. 1 letter, signed by Bucek and Kitty Van Bortel, Ford argued that any agreement it might have had with Van Bortel was an oral contract.
U.S. District Judge David Larimer agreed with the auto manufacturer, headlining the Aug. 10 ruling he handed down in Ford’s favor with a quote attributed to movie mogul Samuel Goldwin: “A verbal contract isn’t worth the paper it’s written on.”
“Significantly,” Larimer wrote, “the final sentence of the Sept. 1 letter stated, ‘Neither this letter nor any efforts you may or may not make to pursue such a transaction shall not, [sic] in any way, obligate either party to the above-mentioned transaction.’”
Noting that 16 days after Van Bortel and Bucek signed the Sept. 1 letter, Bucek informed Van Bortel in a phone call that the deal he had offered earlier was off, “there was thus no contract of sale to assign,” Larimer ruled.
In the Sept. 17 phone call, Van Bortel alleged, after Bucek communicated Ford’s decision, she and Bucek reached an agreement to have Ford honor its original promise to purchase Henderson Ford and sell it to Van Bortel.
Perhaps, but “an offer and acceptance are not enough in themselves to give rise to a contract,” Larimer concluded. The original letter did not specifically promise to sell the dealership but only promised to consider such action, the judge’s ruling adds.
The ruling continues, “the informal understanding described by (Van Bortel) said virtually nothing about any of the essential terms of the ‘agreement,’ but allegedly consisted of a bare promise by Ford to assign some unidentified, hypothetical (purchase and sale agreement) to (Van Bortel). Nothing was said about what Van Bortel was obligated to do in return; no terms were set and no sums of money referenced.”
Larimer also dismissed Van Bortel’s sex-discrimination claim, writing that “she has not alleged facts indicative of discriminatory animus on Ford’s part. Although (Van Bortel) was not assigned the (purchase and sale agreement) as she had hoped, there are no allegations indicating that her sex had anything to do with that.”