BP Products North America, Inc. v. Charles Stanley, Jr. ( 2011 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BP PRODUCTS NORTH AMERICA, 
INCORPORATED,
Plaintiff-Appellant,
v.
 No. 10-2097
CHARLES V. STANLEY, JR.;
TELEGRAPH PETROLEUM PROPERTIES,
LLC,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:09-cv-01147-LMB-TRJ)
Argued: October 26, 2011
Decided: February 14, 2012
Before TRAXLER, Chief Judge, and SHEDD and FLOYD,
Circuit Judges.
Reversed in part, vacated in part, and remanded by published
opinion. Chief Judge Traxler wrote the majority opinion, in
which Judge Shedd joined. Judge Floyd wrote a dissenting
opinion.
2 BP PRODUCTS v. STANLEY
COUNSEL
ARGUED: John E. Petite, GREENSFELDER, HEMKER &
GALE, PC, St. Louis, Missouri, for Appellant. John Edwin
Coffey, REDMOND, PEYTON & BRASWELL, Alexandria,
Virginia, for Appellees. ON BRIEF: Mark M. Hanna, MUR-
PHY ANDERSON PLLC, Washington, D.C., for Appellant.
Daniel D. Mauler, REDMOND, PEYTON & BRASWELL,
Alexandria, Virginia; Harry Carl Storm, LERCH, EARLY &
BREWER, CHARTERED, Bethesda, Maryland, for Appel-
lees.
OPINION
TRAXLER, Chief Judge:
BP Products North America, Inc. ("BP") appeals a district
court order granting summary judgment in favor of Charles V.
Stanley, Jr., and his business, Telegraph Petroleum Properties,
LLC ("Telegraph") (together, "Defendants") in BP’s action
seeking to enforce a restrictive covenant in a deed. BP also
appeals the district court’s award of attorneys’ fees and costs.
We reverse the grant of summary judgment, vacate the fee
and cost award, and remand to the district court.
I.
BP is a petroleum refiner and distributor of motor fuel
under the BP, Amoco, and Arco brands. Prior to December
2005, BP sold fuel directly to its lessees and station-owner
retailers, who then resold the fuel to the public. Stanley was
one of these lessees. For many years before December 2005,
Stanley operated an Amoco-branded gasoline station in Alex-
andria, Virginia, on property leased from BP ("the Property").
During that time, in addition to selling BP fuel, Stanley oper-
ated an automobile repair shop on the Property.
BP PRODUCTS v. STANLEY 3
In 2005, BP entered into an agreement to sell its Virginia,
Maryland, and District of Columbia station properties and
dealer fuel supply rights to Eastern Petroleum, an independent
wholesale supplier, or "jobber." This agreement was subject
to first providing individual retailers the chance to match
Eastern’s offer. The agreement was part of a transition by BP
to a new distribution model, under which BP would no longer
sell fuel directly to retailers such as Stanley. Rather, BP
would sell to a large jobber, who would resell to BP-branded
dealers under supply agreements the jobber had with the
retailers. With its acquisition of BP’s Virginia retail assets,
Eastern entered into a 15-year supply agreement with BP,
under which Eastern agreed to buy more than 100 million gal-
lons of fuel annually from BP. Eastern also agreed to pur-
chase each of the station properties subject to a restriction that
they could not be used to sell non-BP-branded fuel.
BP offered Stanley and its other lessee-retailers the oppor-
tunity to match Eastern’s offer to purchase the property they
were leasing. The purchases would have to be subject to the
restriction against using the property to sell non-BP-branded
fuel, and the retailers would have to enter into 15-year supply
agreements with Eastern. If the dealers decided not to pur-
chase the properties, they could continue to operate their sta-
tions as they had been, with the only change being they would
be leasing from Eastern rather than BP and buying fuel from
Eastern rather than BP. The purpose of these dealings was to
move BP to its new jobber distribution model, which required
that demand for BP fuel at the station properties be main-
tained during the period under which Eastern’s 15-year supply
agreement with BP was in force.
Stanley, represented by legal counsel, agreed to purchase
the Property pursuant to a Purchase and Sale Agreement
("PSA") with BP dated September 2, 2005. He also agreed to
enter into a 15-year fuel-supply agreement with Eastern.
Attached to the PSA was a Special Warranty Deed that
4 BP PRODUCTS v. STANLEY
included restrictions on the Property’s use. As is relevant
here, one of these restrictions ("the PR") states:
I. Petroleum Restriction: No part of the Property
shall be used by Grantee or any other Grantee Party,
directly or indirectly, for an automobile service sta-
tion, petroleum station, gasoline station, or for the
purpose of conducting or carrying on the business of
selling, offering for sale, storage, handling, distribut-
ing or dealing in petroleum, gasoline, motor vehicle
fuel, diesel fuel, kerosene, benzol, naphtha, greases,
lubricating oils, or any fuel used for internal com-
bustion engines, or lubricants in any form, or other
petroleum or petroleum-related products, except for
the personal use or consumption of such products by
Grantee or its lessees of the Property, unless any
such use is in connection with the operation of the
Property as a Grantor branded service station. For
purposes hereof, "Grantor branded service station"
shall mean a service station under the brand BP,
Amoco, Arco or any other brand of Grantor or any
of its affiliates or their respective successors and
assigns.
The above covenants and use restrictions bind and
restrict the Property as covenants and restrictions
running with the land and each portion thereof, and
are deemed to benefit Grantor as a user of, operator
of, or supplier of Grantor branded fuels to lands or
retail operations in the County in which the Property
is located. These restrictive covenants will remain in
full force and effect for a term of fifteen (15) years
from the date of this conveyance whereupon these
restrictive covenants will automatically lapse and
terminate and be of no further force or effect.
J.A. 64, 468. Stanley expressly acknowledged that "the pur-
chase price . . . reflects . . . the fact that all of the Use and
BP PRODUCTS v. STANLEY 5
Operating Restrictions shall be recorded against the Property
and shall be binding on Grantee and the other Grantee Par-
ties." J.A. 462.
The deed took effect when the PSA was signed on Decem-
ber 5, 2005, and Telegraph signed a supply agreement with
Eastern seven days later. By early 2006, however, Stanley had
become concerned that Eastern was charging commercially
unreasonable prices for its fuel. In response to a letter from
Stanley on this subject, Eastern and Stanley both agreed to
lower their profit margins in an attempt to make the sale of
BP fuel at the station property viable. When this effort failed,
Stanley requested that Eastern sell Telegraph a different, less
expensive brand of fuel. Defendants apparently continued to
purchase BP-branded fuel from Eastern until approximately
July 2008.
Starting about July 2008, Telegraph did not sell any gaso-
line from the Property for one year but continued to provide
vehicle-repair and inspection services on the Property. Defen-
dants never requested any relief from the restrictive covenant
to provide these services.
On April 27, 2009, Stanley sent BP a letter asserting that
Eastern had materially breached the supply agreement by fail-
ing to offer commercially reasonable fuel prices. The letter
stated that the PR was rendered unenforceable by the breach
and informed BP that Stanley intended to remove his "Amoco
brand imaging and obtain alternate gasoline supply." J.A. 181.
Stanley also repeated this intent in a subsequent letter.
Receiving no response, Defendants began selling AmeriGO
fuel on July 24, 2009. When BP learned that Defendants were
selling AmeriGO fuel, it demanded that they stop doing so.
Stanley refused, prompting BP to file suit against Defen-
dants. BP’s complaint alleges that Defendants violated the
PSA and the Special Warranty Deed by selling non-BP
branded motor fuel during the 15-year period in which the
6 BP PRODUCTS v. STANLEY
restrictive covenant was in force. The complaint requests
monetary damages, injunctive relief, and an award of attor-
ney’s fees and costs. Defendants counterclaimed, seeking a
declaration that the deed restriction is overbroad and invalid
("Count I") and that BP violated § 2-305 of Virginia’s com-
mercial code by charging commercially unreasonable fuel
prices ("Count II").
The parties filed cross-motions for summary judgment. In
its motion, BP sought judgment on both its claims and Defen-
dants’ counterclaims. Defendants moved for summary judg-
ment on BP’s claims, but only on Count I of their
counterclaims. BP also moved to strike a declaration in which
Stanley proffered putative expert testimony on the commer-
cial reasonableness of Eastern’s fuel prices. The district court
granted BP’s motion to strike.
The district court subsequently granted Defendants’ sum-
mary judgment motion and denied BP’s, ruling that the PR
was unenforceable as written and that it could not be modified
by operation of the deed or by BP unilaterally. The court ruled
that the PR was overbroad on the basis that it prohibited using
the property as a vehicle repair business or using the property
to sell kerosene, benzol, naphtha, greases, benzol, greases, or
lubricating oils unless the station was BP-branded. The court
did not reach Count II of Defendants’ counterclaim, conclud-
ing that Count II sought the same relief that the court granted
pursuant to Count I. The court also awarded $120,031.59 in
fees and costs to Defendants.1
II.
BP argues that the district court erred in concluding that the
PR was overbroad and, thus, unenforceable. We agree.
1
The PSA provided for an award of attorneys’ fees and costs to the pre-
vailing party in any legal proceeding brought with respect to the agree-
ment.
BP PRODUCTS v. STANLEY 7
"Because we are sitting in diversity, our role is to apply the
governing state law, or, if necessary, predict how the state’s
highest court would rule on an unsettled issue." Horace Mann
Ins. Co. v. General Star Nat’l Ins. Co., 514 F.3d 327, 329 (4th
Cir. 2008).
The parties agree that under Virginia law, covenants "re-
stricting the free use of land are not favored and must be
strictly construed." Mid-State Equip. Co. v. Bell, 225 S.E.2d
877, 884 (Va. 1976). They disagree, however, regarding the
test by which such covenants should be judged. Defendants
argue that the restriction should be judged by the standard dis-
cussed in Omniplex World Services Corp. v. U.S. Investiga-
tions Services, Inc., 618 S.E.2d 340, 342 (Va. 2005), which
applies to noncompete covenants in employment contracts.
BP contends that restrictive covenants in deeds are judged by
a different standard, namely the one discussed in Merriman v.
Cover, Drayton & Leonard, 51 S.E. 817, 819 (Va. 1905), and
that the Omniplex and Merriman tests are distinct from one
another. We agree with BP.
Virginia courts have held that covenants restricting land use
are valid "where the restraint is limited and there is a valuable
consideration to support it," so long as "the restraint imposed
is reasonable as between the parties and not injurious to the
public by reason of its effect upon trade." Merriman, 51 S.E.
at 819. A restraint is reasonable if it only "afford[s] a fair pro-
tection to the interests of the party in favor of whom it is
given, and [is] not so large as to interfere with the interests of
the public." Id. Virginia courts apply a different test to non-
compete covenants in employment contracts, under which a
covenant is enforced if it is "narrowly drawn to protect the
employer’s legitimate business interest, is not unduly burden-
some on the employee’s ability to earn a living, and is not
against public policy." Omniplex, 618 S.E.2d at 342; see also
Therapy Servs., Inc. v. Crystal City Nursing Ctr., Inc., 389
S.E.2d 710, 711 (Va. 1990) (applying Merriman test when
"[a]lthough the provision in question involves an employee’s
8 BP PRODUCTS v. STANLEY
ability to secure future employment, it is neither a covenant
not to compete nor a restrictive covenant between employer
and employee"). The presence of the words "narrowly drawn"
in the Omniplex test suggests that the Omniplex test is stricter.
See also Ferdinand S. Tinio, Annotation, Enforceability, inso-
far as restrictions would be reasonable, of contract contain-
ing unreasonable restrictions on competition, 61 A.L.R. 3d
397 § 2[a] ("Generally, a stricter test of reasonableness is
applied in employment covenant cases than in sale covenant
cases."). Additionally, Omniplex’s consideration of the "em-
ployee’s ability to earn a living" is not even a part of the Mer-
riman test. We therefore apply only the Merriman test to the
facts before us.
In so doing, we note that courts have consistently upheld
covenants similar to the one before us today. See, e.g., Savon
Gas Stations No. Six, Inc. v. Shell Oil Co., 309 F.2d 306, 310-
11 (4th Cir. 1962); Eastling v. BP Prods. N. Am., Inc., 578
F.3d 831, 833 (8th Cir. 2009); Calumet Council Bldg. Corp.
v. Standard Oil Co. of Ind., 167 F.2d 539, 542 (7th Cir. 1948);
Staebler-Kempf Oil Co. v. Mac’s Auto Mart, Inc., 45 N.W.2d
316, 319 (Mich. 1951). Additionally, Virginia courts often
rely on Restatements in resolving issues of contract and prop-
erty law, see, e.g., Edwards v. Bradley, 315 S.E.2d 196, 198
(Va. 1984); Meissel v. Finley, 95 S.E.2d 186, 189 (Va. 1956),
and the Restatement (Third) of Property: Servitudes (2000),
addressing restrictions on the use of real property, strongly
points to that result. Comment b to § 3.6 of the Restatement
notes that "[t]he common law of unreasonable restraints on
competition looks to the purpose, the geographic extent, and
the duration of the restraint to determine whether it is reason-
able." The comment also provides that "[c]ovenants against
competition that are tied to ownership of a particular parcel of
land are seldom unreasonable because the impact is limited to
one piece of land." Id. Comment c to the same section further
notes that "petroleum-product companies" often sell or lease
"land for service stations, taking covenants from the grantees
that they would purchase all their petroleum products from
BP PRODUCTS v. STANLEY 9
the grantor and would sell only the grantor’s products in the
station." Comment c concludes that "[a]lthough there was
some early hesitance about the validity of these arrangements,
they came to be widely accepted."
Nevertheless, as we have explained, the district court found
the PR to be overbroad and unenforceable for two reasons. BP
challenges both reasons on appeal, and we will address them
seriatim.
A.
First, BP argues that the district court erred in ruling that
the PR is unenforceable because it purports to prohibit using
the Property to operate a non-BP-branded auto repair shop
that does not sell gasoline. Indeed, BP argues that the district
court erred in interpreting the PR to even include such a pro-
hibition. We agree.
Under Virginia law, terms in a contract will be interpreted
in light of the context in which they appear. See
Westmoreland-LG & E Partners v. Virginia Elec. & Power
Co., 486 S.E.2d 289, 294 (Va. 1997). As do the courts of
other states, Virginia courts construe agreements "according
to the sense and meaning of the terms which the parties have
used; and, if they are clear and unambiguous, their terms are
to be taken in their plain, ordinary and popular sense." Baw-
den v. American Cent. Ins. Co., 150 S.E. 257, 260 (Va. 1929).
Additionally, when "two constructions may be given a con-
tract, one of which would render it valid and the other of
which would destroy it, the former construction will be given
it, if [it is] reasonable." Merriman, 51 S.E. at 818. Any
ambiguity in a real covenant "must be resolved in favor of the
unrestricted use of land." Providence Square Assocs., L.L.C.
v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000) (applying
Virginia law).
The PR provides, in relevant part, that "[n]o part of the
Property shall be used . . . for an automobile service station,
10 BP PRODUCTS v. STANLEY
petroleum station, gasoline station, or for" other purposes not
relevant to this issue "unless any such use is in connection
with the operation of the Property as a [BP] branded service
station." J.A. 64, 468. As BP’s expert stated in his report,
The terms automobile service station, petroleum
station and gasoline station are common names
referring to a retail facility that offers fuel and in
some cases automotive repair services. . . . Depend-
ing on the context, "service station" or "automobile
service station" could mean a retail facility that pro-
vides gas only, gasoline and convenience merchan-
dise, gasoline and a car wash, gasoline and
automotive repair services, or a combination of gaso-
line with any number of these goods or services.
In the industry, however, "service station" or "au-
tomobile service station" would never mean a facil-
ity that provides automotive repair services only.
J.A. 406-07. This understanding is in line with the common
meaning of "service station." See Webster’s Encyclopedic
Unabridged Dictionary of the English Language 1750 (2001)
(noting that "service station" is a synonym of "gas station"
and is defined as "a place equipped for servicing automobiles,
as by selling gasoline and oil, making repairs, etc."). Thus,
while a "service station" might offer auto-repair services,
under the common meaning of the term, a service station
would necessarily sell gasoline as well. Furthermore, the
notion that "service station" and "gas station" are synonymous
is hardly unlikely in light of the fact that the third term
included in the list, "petroleum station," has the same mean-
ing as well. See Andrews v. American Health & Life Ins. Co.,
372 S.E.2d 399, 401 (Va. 1988) (applying the maxim noscitur
a sociis, which "instructs that ‘the meaning of a word takes
color and expression from the purport of the entire phrase of
which it is a part, and it must be read in harmony with its con-
text’").
BP PRODUCTS v. STANLEY 11
Even if the meaning of "service station" were not plain out-
side the context of this agreement, it certainly is plain within
the context of the agreement. The purpose of the PR from
BP’s perspective was "to secure [Stanley’s] long term
branded fuel sale commitment" by making sure that any gaso-
line sold on the property would be BP-branded. J.A. 416; see
J.A. 418 ("The guaranteed length of the supply commitment
is a critical element in determining the value of the loca-
tion."). BP had no interest in prohibiting Stanley from operat-
ing an auto repair shop that did not sell fuel.
For all of these reasons, even assuming that the PR is
ambiguous — and we do not believe that it is — the restric-
tion must be interpreted narrowly to allow liberal use of the
land, see Providence Square Assocs., 211 F.3d at 850, and to
favor the enforcement of the agreement, see Merriman, 51
S.E. at 818. See also Bayside Corp. v. Virginia Super Food
Fair Stores, Inc., 128 S.E.2d 263, 267 (Va. 1962) (explaining
that courts should "give effect to the plain intention of the par-
ties" who agree to accept certain restrictions "instead of seek-
ing ingenious subtleties of interpretation by which to evade
such restrictions" (internal quotation marks omitted)). Thus,
we conclude that the PR does not prohibit Stanley from oper-
ating a non-BP-branded vehicle repair business on his prop-
erty so long as the business does not also sell non-BP-branded
gasoline.
B.
BP next challenges the district court’s conclusion that the
PR is overbroad because it prohibits "the business of selling,
offering for sale, storage, handling, distributing or dealing in
. . . kerosene, benzol, naphtha, greases, lubricating oils . . . or
lubricants in any form, or other petroleum or petroleum
related products . . . unless any such use is in connection with
the operation of the Property as a Grantor branded service sta-
tion." J.A. 64, 468. The district court determined that the evi-
dence showed "that BP has no interest in the sale or use of
12 BP PRODUCTS v. STANLEY
these items." J.A. 989. On this basis, the district court deter-
mined that the restriction was unreasonable as between the
parties. The court also reasoned that "because of the cove-
nant’s overbreadth, it clearly injures the public because its
language chills, and in fact, in this case, entirely halts, the
competitive sale of goods to the public." J.A. 990.
BP advances multiple arguments challenging the ruling by
the district court that the PR was overbroad as a result of its
application to the sale of these enumerated items. BP first
argues that, as a petroleum refiner, it has a legitimate business
interest in prohibiting the sale of any products that would
dilute the demand for BP’s petroleum. BP also maintains that
the PR should be read to prohibit the sale of kerosene, benzol,
or naphtha only to the extent those products are used for the
sale of fuel for internal combustion engines. Finally, BP
argues that it is not seeking to prevent the sale of lubricants
and that any prohibition of such sales "is academic and repre-
sents far too slender a reed on which to invalidate the entire
Petroleum Restriction, and thereby allow Stanley to use the
Property to sell non-BP fuel, the very use the parties indispu-
tably intended that the Property could not be put." Appellant’s
brief at 48.
We agree with BP that the challenged prohibition at the
outset is too inconsequential to invalidate the entire PR. The
PR clearly exists to prohibit primarily the operation of a non-
BP-branded gas station. No evidence suggests that Stanley’s
right to sell any of the products in the prohibition at issue is
of significant importance to him or to BP. More to the point,
no evidence suggests that prohibiting their sale on this one
particular piece of property has any effect whatsoever on the
public interest. See Bayside Corp., 128 S.E.2d at 266 (holding
that restriction "clearly . . . d[id] not interfere with the rights
of the public" when "[i]t only prohibit[ed] a super market in
one shopping center"). Indeed, the only effect that the prohibi-
tion appears to have had is that it has served as a basis for
Defendants’ attempt to invalidate the portions of the restric-
BP PRODUCTS v. STANLEY 13
tions that actually do affect the parties.2 We need go no fur-
ther in our analysis than to note how unimportant this
argument is.
We therefore conclude that the PR, although perhaps
slightly broader than necessary to achieve its purpose, on the
whole "afford[s] a fair protection" to BP’s interests without
being "so large as to interfere with the interests of the public."
Merriman, 51 S.E. at 819. Accordingly, we hold that the dis-
trict court erred in granting summary judgment against BP.
Because we reverse the judgment, we also vacate the fee and
cost award.3
III.
For the foregoing reasons, we reverse the district court’s
grant of summary judgment to the Defendants, vacate the fee
2
We note that Defendants claim that the equities in this case favor inval-
idation because BP made clear to Stanley that the terms upon which it
would sell the property were nonnegotiable. However, it is hard to see
how BP’s refusal to offer the property to Stanley under more generous
terms than those to which Eastern had already agreed is unfair to Stanley.
Stanley was perfectly free to reject BP’s offer and essentially continue on
as he had before, leasing the property rather than owning it; but having
chosen to accept BP’s terms, the existence of which was reflected in the
price paid for the property, Stanley is not free to avoid them. See Bayside
Corp. v. Virginia Super Food Fair Stores, Inc., 128 S.E.2d 263, 266-67
(Va. 1962) ("It may not be amiss to here suggest that there can be no
sound or wholesome public policy, which operates in the slightest degree
to lend approval to open disregard and violation of personal contracts
entered into in good faith, upon good consideration. It is quite as important
as a matter of public interest and welfare, that individuals be not allowed,
with impunity, to transgress their solemn undertakings, advisedly entered
upon, as it is that the public have protection in other respects." (internal
quotation marks omitted)).
3
After oral argument, BP requested that we take judicial notice of, or
supplement the record on appeal with, an instrument of partial release that
BP maintains it recorded with the Fairfax County Recorder of Deeds. In
light of our disposition of BP’s appeal, we deny BP’s request as moot.
14 BP PRODUCTS v. STANLEY
and cost award, and remand for further proceedings consistent
with this opinion.
REVERSED IN PART,
VACATED IN PART,
AND REMANDED
FLOYD, Circuit Judge, dissenting:
The majority notes that the Petroleum Restriction (PR) is
"slightly broader than necessary to achieve its purpose." Ante
at 13. Nevertheless, it concludes that the PR remains enforce-
able because it "on the whole ‘afford[s] a fair protection’ to
BP’s interests without being ‘so large as to interfere with the
interests of the public.’" Id. (quoting Merriman v. Cover,
Drayton & Leonard, 51 S.E. 817, 819 (Va. 1905)). I cannot
agree and therefore respectfully dissent.
Virginia law allows a restraint on trade only when it is "rea-
sonable as between the parties and not injurious to the public
by reason of its effect upon trade." Merriman, 51 S.E. at 819.
"Whether or not the restraint is reasonable is to be determined
by considering whether it is such only as to afford a fair pro-
tection to the interests of the party in favor of whom it is
given, and not so large as to interfere with the interests of the
public." Id.
Here, the PR, which BP drafted and to which Stanley
agreed, prohibits Stanley from
carrying on the business of selling, offering for sale,
storage, handling, distributing or dealing in petro-
leum, gasoline, motor vehicle fuel, diesel fuel, kero-
sene, benzol, naphtha, greases, lubricating oils, or
any fuel used for internal combustion engines, or
lubricants in any form, or other petroleum or
petroleum-related products, . . . unless any such use
BP PRODUCTS v. STANLEY 15
is in connection with the operation of the Property as
a Grantor branded service station.
BP admits, however, that it does not sell automotive lubri-
cants to the general public; supply naphtha, benzol, kerosene,
greases, or lubricating oils to any service station in Virginia;
compete in the automotive lubricant industry; or receive any
revenue from the sale of automotive lubricants anywhere
within Virginia. In my mind, therefore, BP drafted a covenant
that regulates more than is necessary to protect its legitimate
interests, and simply put, the PR is overbroad.
BP argues, of course, that the PR is not overbroad. Citing
dictionary definitions that indicate kerosene, naphtha, and
motor oil are petroleum-related, it asserts that it has a legiti-
mate interest in prohibiting the sale of any product that would
"dilute the demand for [its] petroleum," even if it does not sell
that particular product in Virginia. Notably, however, BP does
not argue that it has a legitimate business interest in prohibit-
ing the storage or handling of such products or in regulating
the presence and use of "greases," "lubricating oils," and "lu-
bricants in any form," even though the PR specifically
addresses this conduct. Instead, it asks us to ignore the PR’s
plain language and "construe[ ]" its overbroad prohibitions "in
light of the [PR’s] purpose and aims"—namely, "to prevent
the sale of products that dilute the demand for BP gasoline."
"If a certain petroleum product does not have that capacity,"
BP argues, "its sale would not be prohibited." In sum, then,
BP asks us (and Stanley) to determine if a prohibited product
would "dilute the demand for BP gasoline" and, if not, simply
pretend that the plain language of the PR does not truly pro-
hibit the sale, storage, or use of that product. This I cannot do.
BP is a sophisticated, experienced, and competently repre-
sented party. Accordingly, I must assume that it drafted the
PR’s language carefully and intentionally, and I cannot view
16 BP PRODUCTS v. STANLEY
its sweeping prohibitions as a casual mistake or over-
sight.* See Richfood, Inc. v. Jennings, 499 S.E.2d 272, 276
(Va. 1998) ("No word or clause will be treated as meaningless
if a reasonable meaning can be given to it, and there is a pre-
sumption that the parties have not used words aimlessly."
(quoting Winn v. Aleda Constr. Co., 315 S.E.2d 193, 195 (Va.
1984)) (internal quotation marks omitted)).
BP contends that we can enforce the PR regardless of any
overbreadth simply by excising the offending language. And,
since oral argument, BP purportedly has released Stanley
from the overbroad portions of the PR. See Ante at 13 n.3.
Nevertheless, I cannot conclude that the PR becomes enforce-
able through alteration by the court or BP. First, Virginia law
disfavors judicial reformation of covenants through blue-
penciling. See Strategic Enter. Solutions, Inc. v. Ikuma, No.
CL 2008-8153, 2008 WL 8201356, at *4 (Va. Cir. Ct. Oct. 7,
2008) ("The Virginia Supreme Court has not directly ruled on
‘blue-penciling’ overly broad clauses in restrictive cove-
nants[;] however it is clear from the restrictive covenant juris-
prudence in Virginia that the Court does not entertain the
notion that these disfavored restraints on trade should be
reformed by the judiciary . . . ."); Daston Corp. v. MiCore
Solutions, Inc., No. CL-2010-9318, 2010 WL 7375597, at *5
(Va. Cir. Ct. July 30, 2010); Better Living Components, Inc.
v. Coleman, No. CH04-13,307, 2005 WL 771592, at *5 (Va.
Cir. Ct. Apr. 6, 2005). More fundamentally, however, Vir-
ginia law supports narrowly drawn covenants that are reason-
able, and general public policy encourages parties to draft
precise language on which all participants to a contract can
*The district court aptly noted that the PR "is literally so broad that it
would prohibit Stanley from operating a restaurant on the property, if it
used kerosene to heat the stove, or a bicycle repair shop if petroleum-
based lubricants were used." BP Prods. N. Am., Inc. v. Stanley, No.
1:09cv1147, 2010 WL 2817238, at *4 n.6 (E.D. Va. July 15, 2010). Fur-
thermore, I cannot comprehend how Stanley could successfully or effi-
ciently operate an automotive repair business without the ability to store
or handle greases or "lubricants in any form."
BP PRODUCTS v. STANLEY 17
rely. Allowing BP, a multinational, sophisticated corporation,
to draft blatantly overbroad restrictions and then, when chal-
lenged, simply declare that such restrictions are a mistake and
meaningless not only is contrary to basic contract principles,
but also is detrimental to the public interest. Accordingly, I
find that the PR’s overbreadth spoils its enforceability and
dissent from the majority’s contrary conclusion.