BSM Retained to File a Lawsuit in New York Against the Ford EV Program

The Firm has been retained by two Ford dealers in New York to challenge certain components of the Ford Model e Certified Elite Program. Ford Motor Company rolled out the new electric vehicle program requiring dealers to choose one of three allocation categories – (1) full access to electric vehicles; (2) limited to 25 sold orders per year; and (3) no access to electric vehicle models. In order to “qualify” for categories number 1 or 2, dealers must agree to a list of charging and other facility requirements which gives no consideration to a Ford dealership’s size market or expected electric vehicle sales going forward. The Program also added an e-commerce platform through which all electric vehicles must be sold.

The lawsuit filed in New York state court alleges that several components of the Model e Certified Elite Program violate New York law. Specifically, the one-size-fits-all charging requirements is a per se violation of New York law’s prohibition against unreasonable changes to facility and the prohibition against withholding vehicles in exchange for compliance with unreasonable requirements. The requirement that every dealer have a Level 3 charger available to the general public 24 hours a day, 7 days a week is not reasonably necessary in order for a dealer to sell new model electric vehicles. Likewise, the requirement that every dealer have a second Level 3 charger in the dealership is not reasonably necessary for many dealers to sell the number of electric vehicles which would be expected in their market.

The lawsuit also challenges certain components of the e-commerce platform as a violation of New York law. The way in which the e-commerce platform sets pricing for dealer’s new vehicles and trade-in vehicles is a violation of New York’s prohibition on manufacturers being involved in selling vehicles at retail including the setting of the vehicle price.

Lastly, the lawsuit against Ford Motor Company contends that the above listed components of the Model e Program, along with others, are adverse modifications to the Ford dealers’ franchise in violation of New York law.