By: Regan A. Sweeney
Maine Lawyers Review
Darling’s, an authorized Ford dealer since 1989, began its foray into conveyance sales in 1903, when it first started selling cars, trucks, and even bicycles. It has since grown exponentially. The Darling’s brand today includes dealerships in Bangor, Ellsworth, and Augusta for auto makers like Audi, Buick, Chevy, Ford, Jeep, Nissan, Volkswagen, Volvo, and more. But you don’t get to be a major player in the world of car sales without hitting a few bumps in the road. Darling’s Ford dealership went through a ten-year stretch of bumps en route to a Law Court decision in the dealership’s favor, regarding bonus payments earned by the dealership.
In 2000, amid much fanfare and a glamorous Las Vegas event, Ford launched the Blue Oval Certified (BOC) program, a bonus program paying dealers that met certain standards a 1.25% case bonus on the retail price of each Ford sold by the dealership. At first glance, one and a quarter percent may not seem like much, but applied to a dealership’s sales volume, and taking into consideration Ford vehicles range between$15,000 for a sub-compact to nearly $50,000 for an SUV, these numbers add up quickly.
Not every dealership qualified as a BOC dealership; it required certification dealer-initiated programs, elevated levels of customer care. Certification was heavily dependent upon customer feedback, so dealerships like Darling’s, that first qualified as a BOC dealership in 2001 and was the first dealership in Maine to qualify as a BOC dealership, put in considerable work in order to qualify for these bonus payments.
Judy A.S. Metcalf of Eaton Peabody, who represented Darling’s throughout this dispute noted that, “It required a huge commitment on the part of the dealers. It was a game-changer in how they all went about things -in terms of lighting in parking lots, a specific receptionist, hiring people; and it was incredibly successful in turning around what Ford perceived as a low perception among American manufacturers.”
Maybe it was too successful, as Ford announced, in August 2004, that it was discontinuing the program as of April 1, 2005. While certainly disappointed that the program was being discontinued, the real issue Darling’s took with the termination of the agreement was that Ford didn’t follow the requirements of the Business Practices Between Motor Vehicle Manufacturers, Distributor and Dealers Act, 10 M.R.S. §§ 1171-1190-A, in issuing the notice. Specifically, § 1174(3)(B) requires notice of any substantial franchise change to be made by giving 90-days’ written notice via certified mail – a step Ford declined to take and, to date, has still failed to do.
Darling’s procedural journey started with its complaint against Ford filed with the Maine Motor Vehicle Franchise Board in December 2006, which eventually wound its way through not one, but two Law Court decisions; the second of which is discussed in this issue. Noreen A. Patient, also with Eaton Peabody, noted just how long that road has been, “We started in front of an administrative body, we presented this to two different juries and argued before the Law Court twice, so it’s the full spectrum of trial work.”
It’s not often that cases continue for 10% of a century, but in this instance it took a literal decade of litigation. “There are not many clients that will go through ten years of litigation to get to the point that [they] believe in. They believed in us from the outset, and were adamant that the statute meant what it says,” said Patient. Metcalf echoed those sentiments, noting, “We are blessed to have a client that believes in both its rights under the law and its counsel. You cannot get what you’re entitled to unless you fight for what you’re entitled to.”
The case has been remanded to the Business and Consumer docket for a new trial on damages, but is currently awaiting expiration of the period in which to request reconsideration.