Hertz argued that its clawback policies were incorporated by reference into various other agreements and were thus enforceable. However, in the 2021 opinion denying the CEO's motion to dismiss, the court had ruled that Hertz was barred from asserting the incorporation argument and was only able to pursue breach of the clawback policies under the theory that they were standalone contracts.

The court then determined that the clawback policies were not enforceable as standalone contracts. Looking to New Jersey state contract law, the court determined that contracts may be:

The court treated Hertz's claims as an argument for an implied-in-fact contract which means that to survive summary judgment, Hertz needed to demonstrate a genuine issue of material fact as to whether there was "mutual agreement and an intent to promise" (Duffy v. Charles Schwab & Co, Inc., 123 F. Supp. 2nd 802, 817). Here, the court found that there was no evidence of conduct that could be construed as an offer from Hertz to the CEO or a meeting of the minds as to any material terms of agreement. In fact, the clawback policies themselves included language stating that each award agreement or other document granting incentive compensation shall include a provision incorporating the clawback policies. The court treated this as an acknowledgement that the clawback policies lack material terms unless incorporated into relevant agreements.

Looking again to New Jersey state contract law, the court determined that the Standards of Business Conduct are not enforceable standalone contracts because they are too vague for a court to determine "with reasonable certainty what each party has promised to do" (Lo Bosco v. Kure Eng'g Ltd., 891 F. Supp. 1020, 1025 (D.N.J. 1995)).

Hertz made conflicting arguments regarding the Separation Agreement, at times asserting that the Separation Agreement was a valid agreement that the CEO had breached and at other times asserting that the Separation Agreement should be rescinded because Hertz entered into it as a result of false claims by the CEO.

However, the Separation Agreement is governed by the laws of Florida, which require plaintiffs to choose between "rescission, in which a voidable contract is repudiated, and damages, in which the contract is affirmed" (Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1279 (11th Cir. 2004)) (emphasis added). The court determined that Hertz's pleadings and oral arguments were seeking the equitable remedy of rescission rather than pleading a breach seeking damages. The court then holds that rescission is impossible because Florida law requires the party seeking rescission to return the other party to the pre-agreement status. Hertz did not point to any facts demonstrating that it could put the parties into pre-agreement status, including what would happen with respect to the former CEO's employment status with Hertz.