Dersch Energies Inc v. Shell Oil Company

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2495
DERSCH ENERGIES, INC.,
Plaintiff-Appellant,
v.
SHELL OIL COMPANY AND EQUILON ENTERPRISES, INC.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 C 4217—J. Phil Gilbert, Judge.
____________
ARGUED NOVEMBER 30, 2001—DECIDED DECEMBER 26, 2002
____________
Before FLAUM, Chief Judge, and CUDAHY and MANION,
Circuit Judges.
MANION, Circuit Judge. Dersch Energies, Inc. purchases
Shell Oil Company products and resells them to retail
distributors. In December 1997, Dersch began negotiating
with Shell the renewal of their franchise relationship,
which was set to expire in the fall of 1998. Throughout the
negotiation process, Dersch expressed concerns to Shell
about several contract provisions that it deemed objection-
able. After ten months of negotiations, Shell (now operat-
ing as Equilon Enterprises, L.L.C. due to a merger) in-
formed Dersch that unless it signed the proposed franchise
2 No. 01-2495
agreement within the next few days, Shell/Equilon would
issue a formal notice of nonrenewal of the parties’ franchise
relationship. Dersch signed the new franchise agreement
“under protest,” and, approximately one year later, filed an
action for declaratory relief against Shell and Equilon,
seeking a declaration of the corporation’s rights under the
agreement pursuant to the Petroleum Marketing Practices
Act, 15 U.S.C. §§ 2801-2806. After some procedural wran-
gling, the parties filed cross-motions for summary judg-
ment. The district court granted the defendants’ motion,
and Dersch filed a timely motion to alter or amend the
judgment, which the court denied. Dersch appeals the dis-
trict court’s decisions granting the defendants’ motion for
summary judgment and denying its motions for summary
judgment and to alter or amend the judgment. We affirm.
I.
Dersch Energies, Inc. (“Dersch”) is a family-owned motor
fuel reselling business that has purchased and sold Shell-
branded motor fuels for over fifty years. In its role as
middleman, Dersch sells Shell-branded motor fuels in por-
tions of southeastern Illinois and southwestern Indiana. On
average, Dersch purchases over ten million gallons of
Shell-branded motor fuels annually, which it then sells to
service stations and other agricultural, commercial, and
industrial businesses. Since 1951, Dersch has purchased
motor fuels from Shell Oil Co. (“Shell”) pursuant to a series
of supply or “jobber” contracts (drafted by Shell), the last
of which became effective on January 1, 1982, and was to
remain in effect until December 31, 1984 (“1982 Contract”).
The 1982 Contract provided for year-to-year renewals at
the expiration of the initial three-year term, unless termi-
nated by either party within ninety days of the annual re-
newal date. The parties operated under these annual re-
No. 01-2495 3
newals until September 1998, when a new franchise agree-
ment was entered into by the parties.
In 1997, to ensure national uniformity, Shell decided to
revise its existing franchise agreements with jobbers and
1
wholesalers. In December 1997, Shell sent a new franchise
agreement (“Renewal Agreement”) for Dersch to sign. In the
accompanying correspondence, Shell highlighted the
differences between the Renewal Agreement and the 1982
Contract, and informed Dersch that the 1982 Contract was
set to expire on March 31, 1998. Shell also advised Dersch
that it had until December 22, 1997, to execute the Renewal
Agreement.
On February 25, 1998, Ken Zumdome, Shell’s area man-
ager for Dersch’s territory, sent a facsimile message to John
Dersch, Dersch’s president, and Thomas Dersch, John
Dersch’s son and Dersch’s vice president, advising them
that a “[n]ew jobber contract was sent to you before Christ-
mas. You are the only jobber who has not returned [the
contract]. Every jobber in the country has this new contract
in effect. Please return ASAP.” On March 4, 1998, John
Dersch responded by advising Shell, in writing, that the
1982 Contract was not set to expire until December 1998.
On May 29, 1998, Shell notified Dersch that “Shell wants all
jobbers on their new contract. You are the only jobber not
signed. Our legal [department] says you have the right to
1
According to the defendants, “uniform contracts are important
to put all jobbers in a similar position so as to prevent jobbers
from gaining an unfair advantage over other jobbers which could
result if the terms and conditions of each individual contract were
separately negotiated.” The defendants also believe that “the
presence of different terms between various jobbers/wholesalers
might subject [them] to claims of selective application and
discriminatory practices.”
4 No. 01-2495
hold off signing until . . . December 31, 1998. If you do not
return the contract prior to that, your contract with Shell
will terminate.”
On July 15, 1998, representatives from both parties met to
discuss the terms and conditions of the proposed Renewal
Agreement. During the course of the meeting, Thomas
Dersch voiced concerns over the Renewal Agreement’s: (1)
indemnification provisions; (2) release of claims provisions;
(3) assignment provisions; (4) pricing provision; and (5)
description of Dersch’s new defined territory. He also told
the Shell representatives that he considered the corre-
sponding security and personal guaranty agreements—that
Shell was seeking to require Dersch to execute in conjunc-
tion with the Renewal Agreement—to be “onerous.” Two
days after the meeting, Dersch received a facsimile from
Zumdome advising that Shell would not require Dersch to
execute the new security or personal guaranty agreements,
but noting that the Renewal Agreement would now require
an addendum reflecting the fact that Shell had joined with
Texaco, Inc. (“Texaco”) to form Equilon Enterprises, L.L.C.
(“Equilon”) and acknowledging that Equilon would be
Dersch’s new supplier-franchisor under the Renewal
2
Agreement.
In mid-August 1998, Dersch received a slightly revised
version of the Renewal Agreement from Shell, along with
a letter that, after mistakenly asserting that the 1982 Con-
tract had expired on August 3, 1998, advised Dersch that
“the appropriate documents must be executed and re-
2
As part of a joint venture agreement between Shell and Texaco,
certain assets of the companies were transferred to Equilon, ef-
fective July 1, 1998, including Dersch’s franchise agreement with
Shell. Equilon operates as a major oil company refiner and mar-
keter of both Shell- and Texaco-branded motor fuels.
No. 01-2495 5
turned to Shell not later than August 3, 1998.” According to
Dersch, it did not respond to this letter because it be-
lieved, based on Shell’s prior correspondence, that it had
until December 31, 1998, to execute the Renewal Agree-
ment.
On or about September 29, 1998, John Dersch received a
telephone call from Zumdome, informing him that if
Dersch did not sign and forward the Renewal Agreement
to Shell/Equilon in the next two to three days, he was
under instructions to issue an official notice of nonrenewal
of Dersch’s franchise relationship on October 1, 1998, to be
3
effective January 1, 1999. Zumdome advised Dersch that
the nonrenewal would not be rescinded, and read excerpts
from the notice that had already been prepared by the
companies’ attorneys. Thomas Dersch then requested that
Zumdome send him a copy of the proposed notice of non-
renewal via facsimile. Zumdome complied with this re-
quest, faxing Dersch a copy of the proposed notice that
same day. After reviewing the proposed notice of nonre-
newal, Dersch executed the Renewal Agreement “under
protest,” and typed the following underneath each of his
signatures or initials: “[d]espite my objections to this agree-
ment, I have been threatened with the loss of my franchise
if I do not sign it at this time. Accordingly, I am signing it
under protest and reserve all rights to challenge it.”
Equilon signed the Renewal Agreement the next day on
September 30, 1998.
3
This was presumably to comport with the ninety-day notice re-
quirement under the 1982 Contract and 15 U.S.C. § 2804’s general
rule that ninety days notice be given before a franchisor termi-
nates a franchise or nonrenews a franchise relationship. See, e.g.,
Brach v. Amoco Oil Co., 677 F.2d 1213, 1217 (7th Cir. 1982).
6 No. 01-2495
On September 21, 1999, after operating under the Re-
newal Agreement for almost one year, Dersch filed an
action for declaratory relief, pursuant to 15 U.S.C. § 2805(e)
and 28 U.S.C. § 2201, requesting a declaration of its rights
under the Renewal Agreement pursuant to the Petroleum
Marketing Practices Act (“PMPA”). Specifically, Dersch
sought a declaration that Shell and Equilon (collectively
“Equilon” or the defendants) violated 15 U.S.C. § 2805(f)(1)
by conditioning the renewal of the parties’ franchise rela-
tionship on Dersch releasing claims and waiving rights that
it had under both federal and state law.
In its complaint, Dersch alleged that the defendants, by
threatening to discontinue the parties’ franchise relation-
ship, forced it to release or waive six state law rights, three
of which are at issue on appeal. First, Dersch claimed that
the indemnity provision of the Renewal Agreement, i.e.,
Article 11.1, required it to waive its right to contribu-
tion from joint tortfeasors in violation of 735 ILCS § 5/2-
4
1117(a). Second, Dersch averred that the change of deliv-
ery provisions, i.e., Articles 5.1 and 5.4, violated Ind. Code
§ 23-2-2.7-1(3) because they allowed the defendants to
“change the delivery point for product sold to Dersch from
the point of origin (i.e., the fuel terminal) to the destination,
5
and back, at its option.” Third, Dersch maintained that the
4
735 ILCS § 5/2-1117(a) provides that “a defendant is severally
liable only and is liable only for that proportion of recoverable
economic and non-economic damages, if any, that the amount of
that defendant’s fault, if any, bears to the aggregate amount of
fault of all other tortfeasors . . . .”
5
Ind. Code § 23-2-2.7-1(3) provides that “[i]t is unlawful for any
franchise agreement entered into between any franchisor and a
franchisee who is either a resident of Indiana or a nonresident
(continued...)
No. 01-2495 7
joint and several liability provision and the personal
obligations and provisions clause, i.e., Articles 21.2 and
21.3 respectively, subverted the limitations on personal lia-
bility for corporate officers and directors under both the
laws of Illinois and Indiana. See, e.g., Davis v. Hass & Hass,
Inc., 694 N.E.2d 588, 590 (Ill. App. Ct. 1998) (holding that
“[a] corporation is a legal entity which exists separate and
distinct from its shareholders, directors and officers.
Accordingly, shareholders, directors and officers are gen-
erally not liable for a corporation’s obligations.”) (internal
citations omitted); State of Indiana, Civil Rights Comm’n v.
County Line Park, Inc., 718 N.E.2d 768, 772 (Ind. Ct. App.
1999) (same). These contract provisions will hereinafter be
referred to collectively as the “Disputed Provisions.”
On December 9, 1999, the defendants moved to dismiss
Dersch’s complaint, arguing that there was no actual, jus-
ticiable controversy that would permit the district court to
exercise subject matter jurisdiction, and claiming that the
litigation was not ripe because Dersch’s complaint only
raised potential, not actual, violations of § 2805(f)(1). As
such, the defendants asserted that the district court was
being asked to improperly render an advisory opinion. The
district court denied the defendants’ motion to dismiss,
concluding that Dersch’s complaint alleged an actual con-
troversy because “a fair reading of the complaint reveals
that the controversy involves the question of whether
Shell/Equilon’s conduct of conditioning the franchise
renewal on Dersch’s assent to the waiver of rights provi-
5
(...continued)
who will be operating a franchise in Indiana to contain [a pro-
vision] . . . [a]llowing substantial modification of the franchise
agreement by the franchisor without the consent in writing of the
franchisee.”
8 No. 01-2495
sion violated [the PMPA].” In ruling on the defendants’
motion to dismiss, the district court also noted that
Dersch’s complaint was “not proceeding on diversity
grounds” and that:
To the extent that Dersch is relying on § 2805(f)(1) as an
independent source of jurisdiction, Dersch’s reliance is
misplaced. Section 2805(f)(1) does not provide an inde-
pendent basis for relief. Instead, § 2805(a) is the PMPA
section that grants a district court jurisdiction . . . [and
it] extends only to situations where there has been a
termination or nonrenewal, actual or constructive . . . .
So to secure relief for a violation of § 2805(f)(1), the
franchisee must couch [its] relief in terms of a violation
of §§ 2802-03.
Dersch subsequently amended its complaint to address
the jurisdictional concerns raised in the district court’s
order, alleging that the defendants’ coerced renewal vio-
lated both § 2802 and § 2805(f)(1). Thereafter, the parties
filed cross-motions for summary judgment. Dersch offered
two separate and distinct legal theories in support of its
PMPA claim. Dersch’s primary argument was that the state
law waivers resulted in a constructive nonrenewal of the
parties’ franchise relationship. In the alternative, Dersch
contended that even if the waivers did not constitute a
constructive nonrenewal of its franchise relationship, it was
still authorized to sue the defendants under the PMPA
because § 2805(f)(1) provides franchisees with an implied
private right of action to enforce the statute’s provisions.
The defendants responded by asserting that even if Dersch
could meet the PMPA’s threshold burden of demonstrating
a nonrenewal of its franchise relationship, see 15 U.S.C.
§ 2805(c), it could not prevail on its claim because the Dis-
puted Provisions were offered in good faith and in the
normal course of business pursuant to 15 U.S.C. § 2802(b)
No. 01-2495 9
(3)(A). The defendants also argued that the Disputed Pro-
visions did not, in any event, require Dersch to waive any
rights that it had under federal or state law. Finally, the
defendants noted their agreement with the district
court’s conclusion—in its motion to dismiss order—that
§ 2805(f)(1) was “not an independent source of jurisdiction
for relief under the PMPA.”
On March 8, 2001, the district court granted the defen-
dants’ motion for summary judgment, and rendered its
judgment that same day. In analyzing Dersch’s claim under
a constructive nonrenewal theory, the court noted that:
Because this case deals entirely with specific provisions
of the [Renewal] Contract, to successfully show a con-
structive nonrenewal, it appears that Dersch would
have to show (1) that the Defendants failed to reinstate,
continue, or extend the respective motor and [sic] fuel
marketing or distribution obligations and responsibili-
ties of itself and its franchisee under the prior franchise
contract adversely affecting the franchisee and (2) that,
if the complained-of contract provision is substantially
new and not previously agreed-upon, it must adversely
affect Dersch’s obligations and responsibilities under
the franchise . . . . If the franchisee can make its show-
ing, there is one additional step. Under certain circum-
stances, a franchisor may be justified in nonrenewing
a franchise relationship. A franchisor may nonrenew
the franchise if the franchisor and franchisee fail to
agree to additions to the existing franchise agreement,
provided the franchisor proposes those additions in
good faith, in the normal course of business, and not to
prevent the renewal of the relationship.
The district court then evaluated each of the Disputed
Provisions using this analytical framework. With respect to
the Renewal Agreement’s indemnity and change of de-
10 No. 01-2495
livery provisions, the district court found that: (1) the
provisions were substantively the same as the provisions on
the same subject matter contained in the 1982 Contract;
and (2) even if these provisions were considered new
terms, they did not run afoul of the PMPA because “[p]ro-
posing an already-agreed-upon provision of the existing
franchise agreement would fulfill Defendants’ showing of
6
good faith [under § 2802(b)(3)(A)], and there is no contrary
evidence.” For these reasons, the district court held that
Dersch could not demonstrate the constructive nonrenewal
of its franchise relationship vis-a-vis these contract provi-
sions.
The district court also concluded that the defendants’
insistence on Dersch agreeing to the Renewal Agreement’s
joint and several liability provision and personal obliga-
tions and provisions clause did not constitute a construc-
tive nonrenewal of the parties’ franchise relationship.
These contract provisions are contained in Article 21 of the
Renewal Agreement and provide as follows:
21. BUSINESS ENTITY OR JOINT BUYER
21.1 General. This article shall apply if Buyer is a
business entity or composed of more than one
person (i.e., any combination of individuals and
business entities).
21.2 Joint and Several Liability. If Buyer is composed
of more than one person, the obligations imposed
6
A franchisor may nonrenew a franchise relationship if a fran-
chisee refuses “to agree to changes in the franchise arrangement
that result from ‘determinations made by the franchisor in good
faith and in the normal course of business.’ ” Duff v. Marathon
Petroleum Co., 51 F.3d 741, 744 (7th Cir. 1995) (quoting § 2802(b)
(3)(A)).
No. 01-2495 11
hereunder shall be joint and several as to each
such person, and all such obligations shall be
deemed to apply to each person with the same
effect as though that person were the sole Buyer.
21.3 Personal Obligations and Provisions. If Buyer is a
business entity, all obligations and provisions
hereof of a personal nature shall apply as if such
business entity were an individual, and shall also
apply insofar as is legally possible and reason-
ably practicable to those individual persons who
have or exercise management responsibility for
such business entity, including without limita-
tion, officers, directors or agents of corporations
and partners of partnerships. The business entity
shall manage its affairs with respect to the per-
sonal obligations and provisions in a manner so
as to give full force and effect to same.
R61, 19.
Dersch argued that Articles 21.2 and 21.3 violated
§ 2805(f)(1), thus constituting a constructive nonrenewal of
its franchise relationship, because the provisions could be
used by the defendants to impose personal liability on John
Dersch and other managers, officers, and directors of the
corporation. The district court rejected this argument, how-
ever, concluding that neither provision could serve as a
basis for Dersch’s constructive nonrenewal theory because:
(1) Article 21.2 only applied if the “Buyer” was comprised
of more than “one person,” and the only “Buyer” to the
Renewal Agreement was Dersch, a corporation; and (2) by
its very terms (i.e., “insofar as is legally possible”), Article
21.3 was rendered inapplicable if any purported waiver
contained in that provision violated § 2805(f)(1).
12 No. 01-2495
The district court also rejected Dersch’s argument that
§ 2805(f)(1) provided it with an implied private right of
action to enforce the statute’s provisions, noting “[t]his
Court previously concluded that § 2805(f)(1) only creates
duties under the PMPA and is not an independent source of
jurisdiction . . . . There [is] no indication that Congress
intended to create an implied federal cause of action in
enacting § 2805(f).” The court then held that “if § 2805(f)(1)
does not create an implied cause of action . . . Dersch [can]
only maintain a cause of action under the general PMPA
provision conferring federal question jurisdiction onto fed-
eral courts.”
Dersch filed a timely motion to alter or amend the district
court’s judgment, pursuant to Fed. R. Civ. P. 59(e), which
the court denied. Dersch appeals the district court’s deci-
sions granting the defendants’ motion for summary judg-
ment, and denying its motions for summary judgment and
to alter or amend the judgment.
II.
This court reviews the district court’s grant of summary
judgment de novo, construing all facts in favor of Dersch, the
nonmoving party. Commercial Underwriters Ins. Co. v.
Aires Envtl. Services, Ltd., 259 F.3d 792, 795 (7th Cir. 2001).
Summary judgment is proper when the “pleadings, depo-
sitions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c). Thus, “[s]ummary judgment is appropriate if,
on the record as a whole, a rational trier of fact could not
find for the non-moving party.” Commercial Underwriters,
259 F.3d at 795. We will reverse the denial of a Rule 59(e)
No. 01-2495 13
motion to alter or amend a judgment only for an abuse of
discretion. Britton v. Swift Transp. Co., Inc., 127 F.3d 616, 618
(7th Cir. 1997).
On appeal, Dersch argues that the district court erred in
granting the defendants’ motion for summary judgment
because the analysis used by the court failed to give any
consideration whatsoever to the substantive requirements
7
of 15 U.S.C. § 2805(f)(1), which provides that:
No franchisor shall require, as a condition of entering
into or renewing the franchise relationship, a franchi-
see to release or waive—(A) any right that the franchi-
see has under this subchapter or other Federal law; or
(B) any right that the franchisee may have under any
valid and applicable State law.
Id.
According to Dersch, the district court’s analysis of
§ 2805(f)(1) was premised on “a misunderstanding of the
basic procedural preconditions” for interpreting the Petro-
leum Marketing Practices Act (“PMPA” or “Act”), 15
U.S.C. § 2801-2806. Dersch contends that the district court
erred in ruling that § 2805(f)(1) does not provide an im-
plied private right of action to enforce the statute’s provi-
sions. Furthermore, Dersch asserts that even if § 2805(f)(1)
does not contain an implied private right of action, it is still
entitled to maintain a claim under the PMPA because the
Disputed Provisions of the Renewal Agreement, imposed
upon Dersch by the defendants, amount to a constructive
nonrenewal of the parties’ franchise relationship. Thus, at
the very heart of this case is the role § 2805(f)(1) plays
7
Congress enacted § 2805(f)(1) as part of the “Petroleum Mar-
keting Practices Act Amendments of 1994,” Pub. L. No. 103-371,
108 Stat. 3484.
14 No. 01-2495
within the rubric of the PMPA. The issues before us—i.e.,
whether § 2805(f)(1) contains an implied private right of
action or may serve as the basis of a constructive nonre-
newal claim under the PMPA—are issues of first impres-
sion for our circuit. We review questions of statutory con-
struction de novo. Miller Aviation v. Milwaukee County Bd.
8
of Supervisors, 273 F.3d 722, 728 (7th Cir. 2001).
A. The Petroleum Marketing Practices Act - 15 U.S.C.
§§ 2801-2806
Before addressing the merits of Dersch’s arguments, it is
necessary to give a brief overview of the scope and struc-
ture of the PMPA. The PMPA governs franchise arrange-
ments for the sale, consignment, or distribution of motor
fuel “in commerce,” and protects franchisees from arbitrary
or discriminatory termination or nonrenewal of their motor
fuel franchises. Beachler v. Amoco Oil Co., 112 F.3d 902, 904
(7th Cir. 1997); Beck Oil Co., Inc. v. Texaco Ref. & Mktg., Inc.,
25 F.3d 559, 561 (7th Cir. 1994). Both the text and structure
of the Act indicate that Congress enacted the PMPA to
address the disparity in bargaining power then existing
between franchisors (typically major oil companies) and
franchisees in the petroleum industry, Beck Oil, 25 F.3d at
561, and “to level the playing field on which these parties
interact.” Beachler, 112 F.3d at 904. The PMPA was designed
to accomplish this purpose by providing a single, uniform
set of rules governing the termination of petroleum fran-
8
We pause to note “that the absence of a valid (as opposed to
arguable) cause of action does not implicate subject-matter juris-
diction, i.e., the courts’ statutory or constitutional power to
adjudicate the case.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 89 (1998).
No. 01-2495 15
chises and nonrenewal of petroleum franchise relation-
ships. See generally 15 U.S.C. §§ 2801-2806. The PMPA pro-
hibits franchisors from terminating a franchise or discon-
tinuing a franchise relationship, 15 U.S.C. § 2802(a), unless
the franchisor does so pursuant to one of the grounds
enumerated in the Act, 15 U.S.C. §§ 2802(b)(2)-(3) or
2803(c), and meets the notification requirements contained
in 15 U.S.C. § 2804. Thus, the PMPA strikes a balance be-
tween the rights of franchisors and the rights of franchi-
sees, by affording franchisees important but limited pro-
cedural rights, while at the same time providing franchisors
with significant latitude to respond to changing market
conditions. Beachler, 112 F.3d at 904-05; Brach v. Amoco Oil
Co., 677 F.2d 1213, 1220 (7th Cir. 1982).
If a franchisor terminates a franchise or fails to renew a
franchise relationship in accordance with the PMPA, the
franchisee may maintain a civil action under 15 U.S.C.
§ 2805(a) and/or (b). Lippo v. Mobil Oil Corp., 776 F.2d 706,
720 (7th Cir. 1985). In order to prevail, the franchisee must
prove, as a threshold matter, a termination of its franchise
or the nonrenewal of its franchise relationship within the
meaning of the Act. 15 U.S.C. § 2805(c) (“the franchisee
shall have the burden of proving the termination of the
franchise or the nonrenewal of the franchise relationship.”);
Beachler, 112 F.3d at 905 (“It of course is the franchisee’s
initial burden under the PMPA to establish that its fran-
chise has been terminated or not renewed . . . and if it fails
9
to satisfy that burden, our inquiry is at an end.”). It is only
then that the franchisor has “the burden of going forward
[and] establishing that it is entitled to one of the affirmative
9
The PMPA gives franchisees the right to seek a preliminary
injunction prior to the expiration of the franchise agreement. See
15 U.S.C. § 2805(b)(2)(A)-(B).
16 No. 01-2495
defenses set forth in the Act [i.e., 15 U.S.C. §§ 2802(b),
2803(c)].” Duff v. Marathon Petroleum Co., 51 F.3d 741, 744
(7th Cir. 1995) (citing § 2805(c)). With the foregoing prin-
ciples in mind, we now turn to the merits of Dersch’s
lawsuit.
B. Dersch’s 15 U.S.C. § 2805(f)(1) claim
Dersch’s first argument on appeal is that § 2805(f)(1)
provides franchisees with an implied private right of action
to enforce the statute’s provisions. Dersch claims that this
is so because “there is no suggestion in the language or
legislative history of Section 2805(f)(1)” that a franchisee
must demonstrate the nonrenewal of its franchise relation-
ship, pursuant to § 2805(c), before maintaining a suit under
the PMPA for a franchisor’s violation of the statute. While
the plain meaning of § 2805(f)(1)’s text is clearly important,
this statutory subsection must still be construed in its proper
context. Smith v. Zachary, 255 F.3d 446, 448 (7th Cir.
2001), cert. denied, 122 S. Ct. 1207 (2002) (holding that “[t]he
plain meaning rule is applicable when the statutory lan-
guage is clear, unambiguous, and not controlled by other
parts of the act or other acts on the same subject.”). “A stat-
ute is passed as a whole and not in parts or sections and is
animated by one general purpose and intent. Consequently,
each part or section should be construed in connection
with every other part or section so as to produce a harmoni-
ous whole. Thus, it is not proper to confine interpretation to
the one section to be construed.” 2A Norman J. Singer,
Sutherland Statutory Construction § 46:05 (6th ed. 2000).
Section 2805(f)(1) is contained in the PMPA’s “enforce-
ment provisions” along with 15 U.S.C. § 2805(a), which is
entitled “maintenance of civil action by franchisee against
franchisor; jurisdiction and venue; time for commencement
No. 01-2495 17
of action,” id., and delineates all of the statutory require-
ments for maintaining a cause of action under the PMPA.
See also 15 U.S.C. § 2805(b) (outlining statutory require-
ments for obtaining equitable relief under the Act). Section
2805(a) provides that “[i]f a franchisor fails to comply with
10
the requirements of section 2802 or 2803 of this title, the
franchisee may maintain a civil action against such
franchisor . . . .” Id. (emphasis added). See also § 2805(b)(1)
(district courts may grant equitable relief to franchisees,
maintaining an action under § 2805(a), “to remedy the
effects of any failure to comply with the requirements of
section 2802 or 2803 of this title . . . .”) (emphasis added);
accord §§ 2805(c), 2805(d), 2805(e).
Like the district court, we believe that the existence of an
explicit cause of action in § 2805(a) and (b)—i.e., one based
on a franchisor’s violation of §§ 2802 or 2803—makes it
highly unlikely that Congress absentmindedly forgot to
provide a cause of action for § 2805(f)(1). See Dersch Ener-
gies, Inc. v. Shell Oil Co., 2001 WL 1803652, *3 (S.D. Ill. May
15, 2001). It is an elemental canon of statutory construction
that “where a statute expressly provides a particular rem-
edy or remedies, a court must be chary of reading others
into it.” Transamerica Mortgage Advisors, Inc. (TAMA) v.
Lewis, 444 U.S. 11, 19-20 (1979). Thus, “ ‘[w]hen a statute
limits a thing to be done in a particular mode, it includes
the negative of any other mode.’ ” Id. (citation omitted).
Therefore, while the text of § 2805(f)(1) clearly displays an
intent to prohibit certain conduct, the PMPA does not pro-
vide franchisees with a distinct and independent remedy
for a franchisor’s violation of this statutory subsection. See
Gonzaga Univ. v. Doe, 122 S.Ct 2268, 2275-76 (2002) (holding
10
Section 2803 applies to trial and interim franchises, and there-
fore is not at issue in this case.
18 No. 01-2495
that “even where a statute is phrased in such explicit
rights-creating terms, a plaintiff suing under an implied
right of action still must show that the statute manifests an
intent ‘to create not just a private right but also a private
remedy.’ ”). As we recently emphasized in Miller Aviation v.
Milwaukee County Bd. of Supervisors, 273 F.3d 722 (7th Cir.
2001),
A private right of action to enforce federal law must be
created by Congress . . . [I]n evaluating whether a
statute contains a private right of action . . . [t]he ju-
dicial task is to interpret the statute Congress has
passed to determine whether it displays an intent to
create not just a private right but also a private remedy.
Statutory intent on this latter point is determinative.
Without it, a cause of action does not exist and courts
may not create one, no matter how desirable that might
be as a policy matter, or how compatible with the stat-
ute. “Raising up causes of action where a statute has
not created them may be a proper function for common-
law courts but not for federal tribunals.”
Id. at 729-30 (quoting Alexander v. Sandoval, 532 U.S. 275,
286-87 (2001)) (emphasis added).
Because “statutory intent” is “determinative” on the
question of whether Congress intended to create a private
remedy, Miller, 273 F.3d at 730, we conclude that a franchi-
see may only maintain a civil action under the PMPA for
violations of § 2805(f)(1) if those violations constitute a
nonrenewal of its franchise relationship under § 2802 or
11
2803.
11
For identical reasons, we reject Dersch’s argument that 28
U.S.C. § 1331 provides it with an independent jurisdictional basis
to maintain an action against the defendants under the PMPA.
No. 01-2495 19
C. Dersch’s “Constructive” Nonrenewal Claim
This leads us to Dersch’s next claim, that the defendants’
violation of § 2805(f)(1) constitutes a “constructive” nonre-
newal of its franchise relationship under § 2802. Dersch
appears to argue that if a franchisor conditions the renewal
of a franchise relationship on the franchisee releasing or
waiving rights that it has under federal or state law, there
has been no renewal of that relationship within the mean-
ing of the PMPA.
The district court rejected this argument, holding that the
parties’ franchise relationship had been renewed because
the Renewal Agreement was, in substance, identical to the
parties’ prior franchise agreement. The court also held that
even if the Disputed Provisions could be characterized as
changes or additions to the parties’ franchise, i.e., new
contract terms, Dersch would still not be able to prevail on
its claim because “[p]roposing an already-agreed-upon
provision of the existing franchise agreement would fulfill
Defendants’ showing of good faith [under § 2802(b)(3)(A)],
12
and there is no contrary evidence.”
On appeal, Dersch takes issue with both of these conclu-
sions. First, Dersch argues that while “it might seem logical
to infer that an offer to renew existing contract terms
12
The district court also held, with respect to Articles 21.2 and
21.3, that these contract provisions did not require Dersch to
waive any rights that it had under state law. Because we conclude
infra that Dersch cannot succeed on its constructive nonrenewal
claim, even if these contract provisions required it to waive
certain state law rights, we need not address this aspect of the
district court’s holding. For this same reason, we decline to
address the parties’ detailed arguments on whether each of the
Disputed Provisions required Dersch to release or waive state law
rights in violation of § 2805(f)(1)(B).
20 No. 01-2495
would not amount to a constructive nonrenewal, such an
inference cannot be made when Section 2805(f)(1) is in-
volved.” According to Dersch, a franchisor can violate
§ 2805(f)(1) even if it offers a franchisee an agreement
identical to the one set to expire because § 2805(f)(1)’s
release and waiver prohibition specifically applies when
the parties are “renewing the franchise relationship.”
§ 2805(f)(1) (emphasis added). As such, Dersch contends
that it would render § 2805(f)(1) meaningless if a franchisor
could avoid the statute’s release and waiver prohibition by
simply offering to renew a franchise relationship on terms
and conditions identical to those contained in the parties’
prior franchise agreement. Second, Dersch contends that to
the extent the district court assumed a nonrenewal of the
parties’ franchise relationship and treated the Disputed
Provisions as “new” terms, it erred in holding that the de-
fendants were entitled to use § 2802(b)(3)(A)—which per-
mits franchisors to nonrenew a franchise relationship if the
franchisee refuses to agree to changes or additions made in
good faith and in the normal course of business—to cir-
cumvent § 2805(f)(1)’s release and waiver prohibition. In
short, Dersch asserts that the district court’s test for analyz-
ing its constructive nonrenewal claim: (1) “kept it from giv-
ing any consideration whatsoever to the substantive
requirements of Section 2805(f)(1),” and (2) permits “fran-
chisors to continue to insist upon the waiver or release of
rights, if they have historically done so.” This approach,
Dersch argues, ends up grandfathering a problem that
Congress sought resolve when it amended the PMPA to
include § 2805(f)(1).
We agree with Dersch’s argument in some respects. There
is no question that § 2805(f)(1) was enacted to provide
franchisees with a certain amount of protection during the
negotiation process of “entering into or renewing the
No. 01-2495 21
franchise relationship.” Furthermore, like Dersch, we think
that the meaning of § 2805(f)(1)’s text is clear; a franchisor
may not condition the renewal of a franchise relationship
on a franchisee releasing or waiving rights under federal
or state law. As such, a franchisor cannot circumvent
§ 2805(f)(1)’s release and waiver prohibition by offering to
renew the parties’ franchise relationship on terms and
conditions identical to those contained in a prior franchise
agreement, whether the prior agreement was entered into
before or after the enactment of the statute. Nor is a
franchisor permitted to use § 2802(b)(3)(A) to do an end run
around § 2805(f)(1)’s release and waiver prohibition.
However, while we agree with Dersch’s interpretation of
§ 2805(f)(1)’s meaning, this only calls into question the
reasoning of the district court’s decision, not its ultimate
conclusion—that the defendants’ alleged violation of
§ 2805(f)(1) did not result in a constructive nonrenewal of
the parties’ franchise relationship. For the reasons that
follow, we conclude that the district court’s decision must
stand because Dersch’s franchise relationship with the
defendants was renewed within the meaning of the PMPA.
See, e.g., Peele v. Country Mut. Ins. Co., 288 F.3d 319, 332 (7th
Cir. 2002) (holding that “ ‘[a]n appellate court may affirm
the district court’s [decision] on any ground supported by
the Record, even if different from the grounds relied upon
by the district court.’ ”) (citation omitted).
As previously discussed, the PMPA was enacted to
address one narrow, yet crucial, aspect of petroleum fran-
chise relationships—the termination of franchises and the
nonrenewal of franchise relationships. Most of the time, it
is obvious when a termination or nonrenewal has taken
place. There are, however, situations where a franchisor’s
actions will indirectly result in the termination of a fran-
chise or the nonrenewal of a franchise relationship—i.e., an
22 No. 01-2495
informal termination or nonrenewal. We recognized this
possibility in Beachler, 112 F.3d at 906, when we held that
the assignment of a franchise will result in a termination or
nonrenewal, within the meaning of the PMPA, if a franchi-
see demonstrates that the assignment terminated or dis-
continued any of the “ ‘three statutory components of the fran-
chise agreement,’ which include ‘the contract to use the refiner’s
trademark, the contract for the supply of motor fuel, [and] the
lease of the premises,’ ” id. (citation omitted) (emphasis
added), or that the assignment of the franchise was made in
violation of state law. Id. (“If an assignment is found to be
invalid under state law, it will necessarily result in a
termination of the franchise that is prohibited by the Act.”).
See also Shukla v. B.P. Exploration & Oil, Inc., 115 F.3d 849,
852-54 (11th Cir. 1997); Chestnut Hill Gulf, Inc. v. Cumberland
Farms, Inc., 940 F.2d 744, 750-52 (1st Cir. 1991); Ackley v. Gulf
Oil Corp., 726 F. Supp. 353, 360 (D. Conn.), aff’d mem., 889
F.2d 1280 (2d Cir. 1989); May-Som Gulf, Inc. v. Chevron
U.S.A., Inc., 869 F.2d 917, 922-25 (6th Cir. 1989).
Dersch, however, makes no attempt to argue that the
“coerced” release or waiver of the aforementioned state law
“rights” compromised or diminished, in any manner
whatsoever, its ability to lease retail premises or sell
13
branded motor fuel. Instead, Dersch argues that the offer
of a franchise renewal on a “take-it-or-leave-it basis,” in
violation of § 2805(f)(1), constitutes a “failure to renew”
under the PMPA, even when a franchisee’s statutory “fran-
chise” has, in fact, been renewed. The interdependence be-
tween certain provisions of the PMPA, however, make this
argument untenable.
13
In fact, Dersch has continued to sell Shell-branded motor fuel
throughout the course of this litigation pursuant to the terms of
the Renewal Agreement.
No. 01-2495 23
The composition of a petroleum franchise is delineated
with precision in the Act’s definitions for “franchise” and
“franchise relationship.” The PMPA defines the term “fran-
chise relationship” as “the respective motor fuel marketing
or distribution obligations and responsibilities of a fran-
chisor and a franchisee which result from the marketing of
motor fuel under a franchise.” 15 U.S.C. § 2801(2) (emphasis
added). The term “franchise” means any contract between
a franchisor, as defined by 15 U.S.C. § 2801(3), and a fran-
chisee, as defined by 15 U.S.C. § 2801(4), under which the
franchisor authorizes or permits the franchisee “to use, in
connection with the sale, consignment, or distribution of
motor fuel, a trademark which is owned or controlled by
such [franchisor] . . . which authorizes or permits such
use.” 15 U.S.C. § 2801(1)(A). A “franchise” covers the
essential contracts between a franchisor and a franchisee—
i.e., contract to use the supplier’s trademark in connection
with retail sales, contract for supply of fuel to be sold
under the trademark, and a lease of premises for the sale of
fuel. 15 U.S.C. § 2801(1). A “franchise relationship” then is
“an entity separate from, but defined by, the ‘franchise,’ or
contractual arrangement existing between the parties.”
Unocal Corp. v. Kaabipour, 177 F.3d 755, 764 n.6 (9th Cir.
1999) (emphasis added). See also Han v. Mobil Oil Corp., 73
F.3d 872, 876 (9th Cir. 1995). Therefore, when a franchisee
alleges that a franchisor has “failed to renew” the parties’
franchise relationship, i.e., “reinstate, continue, or extend
the franchise relationship,” 15 U.S.C. § 2801(14) (emphasis
added), as required by § 2802(a)(2), it must demonstrate
that at least one of the three essential components of a
petroleum franchise has been discontinued. This princi-
ple—which is nothing more than a restatement of our hold-
ing in Beachler—applies whether a franchisee’s constructive
nonrenewal claim is based on the assignment of its fran-
chise or of a franchisor’s alleged violation of § 2805(f)(1).
24 No. 01-2495
Because Dersch does not argue that the defendants’ alleged
violation of § 2805(f)(1) resulted in the nonrenewal of a
lease of retail premises, motor fuel supply contract, or the
contract to use the Shell trademark in connection with
retail sales, it cannot demonstrate the nonrenewal of its
franchise relationship within the meaning of the PMPA.
The central problem with Dersch’s argument, and indeed
with the district court’s reasoning below, is that it presumes
a franchisee can only enforce § 2805(f)(1)’s release and
waiver prohibition in the context of a PMPA claim. While it
is certainly possible for a § 2805(f)(1) violation to result in
the nonrenewal of a franchise relationship, that will not
always be the case. When a franchisor’s violation of
§ 2805(f)(1) does not result in a nonrenewal of the parties’
franchise relationship, a franchisee must resort to remedies
outside of the PMPA to vindicate its rights under the stat-
ute. We reach this conclusion for several reasons. To begin
with, as we have repeatedly emphasized, the PMPA is only
designed to regulate a narrow aspect of petroleum franchise
relationships—the termination of franchises and the
nonrenewal of franchise relationships. See generally §§ 2801-
2806. While it is true that § 2805(f)(1) was enacted to address
the disparity of bargaining power existing between
franchisors and franchise outside the termination/ non-
renewal context, i.e., during the negotiation process for
14
entering into or renewing a franchise relationship, there
is nothing in the PMPA suggesting that Congress intended
for franchisees to sue franchisors under the Act’s remedial
provisions for violations of § 2805(f)(1) when a termination
14
See also 15 U.S.C. § 2805(f)(2), which provides that the “interpre-
tation or enforcement” of the “franchise” shall be governed by the
law of the State “in which the franchisee has [its] principal place
of business . . . .” (emphasis added).
No. 01-2495 25
or nonrenewal is not at issue. As previously explained,
“even where a statute is phrased in such explicit rights-
creating terms, a plaintiff suing under an implied right of
action still must show that the statute manifests an intent ‘to
create not just a private right but also a private reme-
dy.’ ” Gonzaga Univ., 122 S.Ct at 2275-76 (citation omitted).
By not amending the PMPA’s remedial provisions to
include a private right of action to enforce § 2805(f)’s pro-
visions, Congress made clear its intent for franchisees to
resort to remedies outside the PMPA context for redress of
violations of the statute when a nonrenewal is not at issue.
This conclusion is further supported by the Act’s preemp-
tion clause, which provides that:
To the extent that any provision of this subchapter
applies to the termination (or the furnishing of notifica-
tion with respect thereto) of any franchise, or to the
nonrenewal (or the furnishing of notification with re-
spect thereto) of any franchise relationship, no State or
any political subdivision thereof may adopt, enforce, or
continue in effect any provision of any law or regula-
tion (including any remedy or penalty applicable to
any violation thereof) with respect to termination (or the
furnishing of notification with respect thereto) of any
such franchise or to the nonrenewal (or the furnishing of
notification with respect thereto) of any such franchise
relationship unless such provision of such law or regu-
lation is the same as the applicable provision of this
subchapter.
15 U.S.C. § 2806(a)(1) (emphasis added).
By specifying with such precision when the States must
stand aside in favor of federal regulation, Congress implic-
itly marked the outer bounds of the power it intended to
26 No. 01-2495
15
exercise. Geib v. Amoco Oil Co., 29 F.3d 1050, 1058 (6th Cir.
1994); Continental Enterprises, Inc. v. Am. Oil Co., 808 F.2d 24,
27 (8th Cir. 1986); Esso Standard Oil Co. v. Dept. of
Consumer Affairs, 793 F.2d 431, 434 (1st Cir. 1986). Beyond
those limits, “state regulation may claim full federal appro-
bation.” Continental Enterprises, 808 F.2d at 27. See also Esso,
793 F.2d at 434 (holding that Congress, by enacting § 2806,
did not intend “ ‘to preempt all state provisions involv-
ing the substantive aspects of petroleum-products fran-
chises.’ ”) (citation omitted).
It is also important to keep in mind that the regulation of
petroleum franchise relationships has traditionally been a
matter of local concern in which the parties frame their
relationships with reference to State law. Hanes v. Mid-
America Petroleum, Inc., 577 F. Supp. 637, 644 (W.D. Mo.
1983). Cf. § 2805(f)(2); Lippo, 776 F.2d at 712 (holding that
petroleum franchise agreements are interpreted according
to state contract law); Brach, 677 F.2d 1217-18 (same). Con-
gress enacted the PMPA to federalize the standards by
which petroleum franchises are terminated and petroleum
franchise relationships are nonrenewed, not to create a
federal common law for governing petroleum franchise
agreements. O’Shea v. Amoco Oil Co., 886 F.2d 584, 593 (3d
Cir. 1989). In other words, the PMPA was not designed to
provide franchisees with a federal forum for the resolution
of run-of-the-mill contract disputes like those at issue in this
case. Without termination or nonrenewal, Dersch has
no claim under the PMPA. Dersch is, however, entitled
15
This is an application of the familiar canon of statutory con-
struction expressio unius est exclusio alterius, which provides that
“to express or include the one thing implies the exclusion of the
other . . . .” Black’s Law Dictionary 602 (7th ed. 1999). See also
Freightliner Corp. v. Myrick, 514 U.S. 280, 288 (1995).
No. 01-2495 27
to bring a state law claim to enforce its rights under
§ 2805(f)(1), such as economic duress. See, e.g., Hurd v.
Wildman, Harrold, Allen & Dixon, 707 N.E.2d 609, 614 (Ill.
App. Ct. 1999) (holding that “[e]conomic duress is a con-
dition where one is induced by a wrongful act or threat of
another to make a contract under circumstances that
deprive one of the exercise of one’s own free will.”). In any
event, whether the Disputed Provisions are voidable under
state law is not a question that can be resolved under the
remedial provisions of the PMPA.
We, therefore, conclude that if a franchisor impermissibly
conditions the renewal of a petroleum franchise relationship
on the relinquishment of any right that a franchisee has
under federal or state law, and the coerced relinquish-
ment of that right does not result in a nonrenewal of the
parties’ franchise relationship, the franchisee must resort
to remedies outside of the PMPA context to enforce
§ 2805(f)(1)’s release and waiver prohibition—primarily, if
not exclusively, through state law remedies. Section
2805(f)(1)’s release and waiver prohibition then, in this
case, provides Dersch with a claim under state law to chal-
lenge the validity of the Disputed Provisions. This is cer-
tainly not unusual given the structure of our federalist
system of government. As we noted in Spearman v. Exxon
Coal USA, Inc., 16 F.3d 722 (7th Cir. 1994), “[m]any federal
rules serve as the jumping-off point for state claims without
converting these into claims under federal law.” Id. at
725. See also Seinfeld v. Austen, 39 F.3d 761, 764 (7th Cir.
1994) (noting that state law actions are ofttimes premised
on a violation of federal law).
In reaching this determination, we are by no means sug-
gesting that § 2805(f)(1) only operates at the state level. On
the contrary, if a franchisor impermissibly conditions the
renewal of a franchise relationship on the franchisee releas-
28 No. 01-2495
ing or waiving federal or state law rights, and the franchi-
see’s refusal to agree to this conditional renewal results in
the nonrenewal of that relationship, the franchisor’s vio-
lation of § 2805(f)(1) may be examined in conjunction with
the franchisee’s claim for the nonrenewal of its franchise
relationship. See, e.g., Carter v. Exxon Co. U.S.A., a Div. of
Exxon Corp., 177 F.3d 197, 200-03 (3d Cir. 1999); Riverdale
Enterprises, Inc. v. Shell Oil Co., 41 F. Supp. 2d 56, 64-67 (D.
Mass. 1999). See also Korangy v. Mobil Oil Corp., 84 F. Supp.
2d 660, 666-67 (D. Md. 2000).
Moreover, the PMPA requires franchisors to provide
franchisees with a formal notice of termination or nonre-
newal, which, in most cases, must be given 90 days in
advance. 15 U.S.C. § 2804. During this 90-day period, a
franchisee may, and often does, seek injunctive relief to
prevent the franchisor from terminating its franchise or
nonrenewing its franchise relationship under the lenient
16
standard provided by the Act in 15 U.S.C. § 2805(b)(2).
16
Section 2805(b)(2) provides that a district is required to issue a
preliminary injunction if:
(A) the franchisee shows—
(i) the franchise of which he is a party has been terminated
or the franchise relationship of which he is a party has not
been renewed, and
(ii) there exist sufficiently serious questions going to the
merits to make such questions a fair ground for litigation;
and
(B) the court determines that, on balance, the hardships im-
posed upon the franchisor by the issuance of such prelimi-
nary injunctive relief will be less than the hardship which
would be imposed upon such franchisee if such preliminary
injunctive relief were not granted.
(continued...)
No. 01-2495 29
Beachler, 112 F.3d at 905 (noting that a “franchisee is entitled
to a preliminary injunction under the Act based upon a
lesser showing than would be required in the ordinary case
under Fed. R. Civ. P. 65.”). Because “[d]istrict courts . . .
enjoy broad discretion in fashioning temporary equitable
remedies, especially under the PMPA’s lenient standard,”
Koylum v. Peksen Realty Corp., 272 F.3d 138, 147 (2d Cir.
2001), a district court has the power to preserve the status
quo between the parties during the pendency of the litiga-
tion (i.e., the existing terms of the franchise relationship). Id.
In this respect, the PMPA protects franchisees not only from
arbitrary and discriminatory termination or nonrenewal, but
also from the harmful effects of threatened termination or
nonrenewal. See, e.g., Shell v. Shell Oil Co., 216 F. Supp. 2d
634, 639-40 (S.D. Tex. 2002).
Thus, Dersch’s assertion that it was forced to execute the
Renewal Agreement rings hollow. As one court recently
noted, “[b]ecause a franchisor cannot terminate without
providing the requisite notice, threats of termination un-
accompanied by explicit notice pursuant to § 2804 have no
teeth.” Shell Oil Co., 216 F. Supp. 2d at 640. Once the § 2804
notice is issued, the franchisee may immediately avail itself
of the protections afforded by § 2805, id., and therefore
Dersch was not in the “Catch-22” envisioned by the dis-
sent—i.e., either waiving its legal rights under § 2805(f)(1)
or committing “economic suicide” by allowing its gasoline
16
(...continued)
Thus, once the franchisee establishes a termination or nonre-
newal, it need only prove “a reasonable chance of success on the
merits” of its claim of a PMPA violation and that the balance of
hardships tips in its favor. Beachler, 112 F.3d at 905. Additionally,
the franchisee need not establish that it would be irreparably
harmed in the absence of an injunction. Id.
30 No. 01-2495
supply to be terminated. A district court within our circuit
recently made this same observation, noting:
[A] franchisee [need not] go out of business in order to
obtain relief from improper nonrenewal. A franchisee
presented with a renewal agreement so coercive that it
suggests that the franchisor’s ulterior motive is to pre-
vent renewal can refuse the agreement. If the fran-
chisor is unwilling to renew, it must notify the franchi-
see of nonrenewal ninety days before the nonrenewal
is to take effect. 15 U.S.C. § 2804(a). During this ninety-
day interim, the franchisee may seek a preliminary in-
junction to prevent enforcement of the nonrenewal.
Under the protection of an injunction, the franchisee
can continue operating its business on the terms of the
previous agreement while the merits of its action
against the franchisor are resolved. The availability of
injunctive relief ensures that a franchisee need not go
out of business before seeking relief from improper
nonrenewal.
Jet, Inc. v. Shell Oil Co., 2002 WL 31641627, *4 (N.D. Ill. No-
vember 22, 2002). See also Beachler, 112 F.3d at 905 (holding
that “Congress’ remedial purpose in enacting the PMPA is
reflected in the provision providing for preliminary injunc-
tive relief.”).
The dissent claims that in making this point we have
contradicted the crux of our holding—i.e., that a franchisee
cannot maintain a claim for a § 2805(f)(1) violation unless
it results in the nonrenewal of the franchise relationship—
because:
In effect, the majority is saying that, in a § 2805(f)(1)
case like the one before us, the statutory notice of
nonrenewal is the precise equivalent of nonrenewal it-
self and may be treated as nonrenewal for purposes of
No. 01-2495 31
maintaining suit. This position, of course, recognizes
the validity of constructive nonrenewal, a concept that
the majority opinion has otherwise attempted thor-
oughly to demolish.
Dissent at 42.
In one respect, the dissent is correct: a franchisor’s issu-
ance of a notice of nonrenewal is the precise equivalent of a
nonrenewal. Lippo, 776 F.2d at 720 (noting that “[i]n an
action brought under section 2805(a) the franchisee has the
burden of proving termination [or nonrenewal] of the fran-
chise. (This must really mean attempted termination [or non-
renewal] if the injunctive relief is to be of any use.)”) (emphasis
added); Jet, Inc., 2002 WL 31641627 at *5 (holding that “[b]y
lowering the required showing [under § 2805(b)(2)], the
Act’s remedial scheme prevents nonrenewal from taking
place until a franchisee’s case can be heard on the merits.”).
The dissent is also correct when it asserts that a franchisee
is not precluded from seeking relief under the PMPA merely
because the franchisor failed to issue a formal notice of
nonrenewal. Dissent at 45. Neither of these observations,
however, supports the dissent’s overall argument, which is
premised on an overly expansive definition of “constructive
nonrenewal.”
According to the dissent, “[c]onstructive nonrenewal
merely means treating something which is literally or in fact
not nonrenewal as actual nonrenewal for purposes of
litigation.” Dissent at 42. This definition of constructive
nonrenewal, however, cannot be reconciled with this
court’s holding in Beachler or § 2805(c)’s requirement that
franchisee must, as a threshold matter, demonstrate the
nonrenewal of its franchise relationship. Furthermore,
contrary to the dissent’s repeated assertions, we do not
reject the constructive nonrenewal approach accepted by the
vast majority of our sister circuits. Our opinion specifically
32 No. 01-2495
recognizes that a franchisee may bring a cause of action
under the PMPA when a franchisor’s actions result in the
loss of one of the three statutory components comprising a
“franchise” under the Act—i.e., lease of retail premises,
motor fuel supply contract, or the contract to use the
franchisor’s trademark. In such cases, this circuit and
several of our sister circuits have held that a franchisee may
maintain an action under § 2802 for the nonrenewal of its
franchise relationship; an action which is commonly
17
referred to as a claim for “constructive nonrenewal.”
Beachler, 112 F.3d at 906; Shukla v. B.P. Exploration & Oil, Inc.,
115 F.3d 849, 852-54 (11th Cir. 1997); Chestnut Hill Gulf, Inc.
v. Cumberland Farms, Inc., 940 F.2d 744, 750-52 (1st Cir. 1991);
Ackley v. Gulf Oil Corp., 726 F. Supp. 353, 360 (D. Conn.), aff’d
mem., 889 F.2d 1280 (2d Cir. 1989); May-Som Gulf, Inc. v.
Chevron U.S.A., Inc., 869 F.2d 917, 922-25 (6th Cir. 1989).
What we do reject is the constructive nonrenewal theory
advanced by the dissent, which, to our knowledge, has only
been endorsed by the Ninth Circuit. See Pro Sales, Inc. v.
Texaco, U.S.A., 792 F.2d 1394, 1399 (9th Cir. 1986). In Pro
Sales, the court held that “a franchisee who signs a succes-
sor contract under protest and promptly seeks to invoke its
rights under the PMPA . . . has not ‘renewed’ the franchise
relationship so as to bar relief under the PMPA.” Id. at
1399. There are several problems, however, with the dis-
17
The “constructive” label, however, can be confusing. This char-
acterization does not mean that a franchisee can maintain a
PMPA claim based on franchise policy disagreements. In the
context of the PMPA, constructive means “not directly expressed,
but inferred,” The Compact Oxford English Dictionary 322 (2d ed.
1989), i.e., an indirect or informal termination or nonrenewal. See
Beachler, 112 F.3d at 906.
No. 01-2495 33
sent’s reliance on Pro Sales. To begin with, Dersch did not
“promptly seek to invoke its rights under the PMPA.” In
Pro Sales, the franchisee signed the contested franchise
agreement and, at the same time, filed suit under the
PMPA. 792 F.2d at 1396. The franchisee also moved for,
and was granted, a temporary restraining order continuing
the terms of the old franchise agreement. Id. Here, in
contrast, Dersch signed the Renewal Agreement and
operated under the terms of that agreement for just under
18
a year before filing suit. Thus, even were we inclined to
consider applying the reasoning of Pro Sales in this case,
Dersch has met only the first prong of the test articulated
in that opinion—i.e., signing the agreement “under pro-
test.” See Shell Oil Co., 216 F. Supp. 2d at 642 (noting “that
there is no allegation in this case that any Plaintiff accepted
the renewal agreements under protest while simulta-
neously bringing suit, as was the case in Pro Sales.”).
Even more problematic, however, is the fact that the Pro
Sales court completely disregards the statutory protection
afforded to franchisees who receive a formal notice of
termination or nonrenewal under the PMPA. As previously
noted, once a franchisor issues a formal notice of nonre-
newal, a franchisee may immediately seek injunctive relief
under § 2805(b)(2). The Pro Sales court, however, ignored
a franchisee’s ability to obtain an injunction under the
PMPA, and relied exclusively on the legislative history of
the Act in support of its holding. 792 F.2d at 1399 (noting
18
Indeed, one of the arguments made by the franchisee in Pro
Sales was that “its continuation of the franchise relationship only
under the terms of the TRO, and not under the terms of either
successor contract . . . bears on whether its actions constitute[d]
[a] nonrenewal.” Pro Sales, 792 F.2d at 1399 n.6.
34 No. 01-2495
that “[t]he legislative history of the Act reflects a number
of specific concerns . . . [one of those being] that franchisee
independence may be undermined by the use of actual or
threatened termination or nonrenewal . . . .”). We have
held, however, that “[l]egislative history is problematic
under the best circumstances, and even so reliable a source
as the Conference Committee Report may be used only
when there is a genuine ambiguity in the statute.” Board of
Trade of City of Chicago v. S.E.C., 187 F.3d 713, 720 (7th Cir.
1999). By enacting § 2805(b)(2), Congress clearly indicated
the means by which it would protect franchisees from being
coerced into signing a new franchise agreement against their
will. NSY, Inc. v. Sunoco, Inc., 218 F. Supp. 2d 708, 712
(E.D. Pa. 2002) (noting that “[t]he PMPA gives the franchi-
see a cause of action against the franchisor for violations of
the Act’s provisions, including the right to seek a prelimi-
nary injunction prior to the expiration of the franchise
agreement.”).
Moreover, given the lenient standard for obtaining in-
junctive relief under the PMPA, we do not accept the Ninth
Circuit’s assertion in Pro Sales—echoed by the dissent in
this case—that franchisees would be forced to go out of
business before invoking the protections of the Act unless
they are permitted to sign renewal agreements under
protest. 792 F.2d at 1399. If a franchisee is able to demon-
strate that the franchisor’s attempted termination or non-
renewal violates the PMPA, the district court is required to
issue an injunction to protect the franchisee’s economic
interests during the pendency of the case. If, on the other
hand, a franchisee (like Dersch) cannot make such a show-
ing because its statutory “franchise” has been renewed,
that franchisee must seek redress at the state level to en-
force its contract rights under the franchise agreement—
i.e., violations of § 2805(f)(1) that do not constitute a non-
No. 01-2495 35
renewal under the PMPA but are instead ordinary contract
19
disputes.
Here, Dersch’s actions dictated its fate. Had Dersch al-
lowed the defendants to issue a formal notice of non-
renewal, its dispute with the defendants would have been
transformed from a mere contract dispute into a non-
renewal (within 90 days) of its franchise relationship—thus
allowing it to meet its burden under § 2805(c) and maintain
suit against the defendants via § 2805(a)-(b). However, by
signing the renewal agreement, and thus renewing its
statutory “franchise,” Dersch divested itself of the right to
20
bring an action under the PMPA. Although federal courts
19
In Pro Sales, the court seems to endorse the concept that a
franchisee may forego the requirements of § 2805(b)(2) and
simply issue itself a de facto injunction by signing an agreement
under protest because the franchisee’s ability to continue in busi-
ness under the terms of an “illegal” contract is within its control,
792 F.2d at 1399 n.7, whereas the issuance of an injunction is
“uniquely within the power of the district court to grant . . . .” Id.
To follow such an approach, however, would result in this court
substituting its judgment for that of Congress. That, of course, is
not a proper function of the judiciary, United States v. McKinney,
98 F.3d 974, 979 (7th Cir. 1996), and we therefore find this aspect
of the Pro Sales court’s reasoning unpersuasive.
20
As previously noted, a formal notice of nonrenewal is not
necessarily a prerequisite to filing suit under the PMPA. The
significance of the notice is that it formally expresses the fran-
chisor’s intent to discontinue the parties’ franchise relationship
(within 90 days), and therefore constitutes a “nonrenewal” for
purposes of § 2805(c). Thus, if the actions of a franchisor indi-
rectly result in a termination or nonrenewal (e.g., an assignment
of the franchise), and no notice is issued in conjunction with that
action, the franchisee is clearly not precluded from filing suit
(continued...)
36 No. 01-2495
are required to grant the PMPA “a liberal construction
consistent with is overriding purpose to protect franchi-
sees,” Brach, 677 F.2d at 1221, we are not empowered “to
take liberties with the PMPA’s carefully stated provisions
and reengineer the statute in the name of rough justice.”
C.K. Smith & Co., Inc. v. Motiva Enterprises LLC., 269 F.3d 70,
76 (1st Cir. 2001). See also Shell Oil Co., 216 F. Supp. 2d at 641
(holding “[t]his Court does not have license to read a
remedy into a statute that Congress did not enact. Section
2804 and 2805 provide adequate remedies for aggrieved
dealers consistent with the balancing of interests the PMPA
drafters intended to achieve.”) (internal citation omitted).
After all, the PMPA “constituted a diminution of the
property rights of franchisors and thus should not be
interpreted to reach beyond its original language and
purpose.” May-Som Gulf, 869 F.2d at 921.
In this case, Dersch chose to renew its franchise relation-
ship with the defendants—thus reaping the benefits of
renewal (i.e., the continued supply of branded gasoline)—
but objected to contract provisions that it deemed to be
violative of § 2805(f)(1). While the Disputed Provisions
may indeed violate § 2805(f)(1), they clearly have no impact
on Dersch’s statutory “franchise.” As such, Dersch is pre-
cluded from using the remedial provisions of the PMPA to
sue the defendants for a “constructive nonrenewal” of its
franchise relationship when all of the essential statutory
components of its PMPA franchise remain intact. Beachler,
112 F.3d at 906. Therefore, to the extent that Dersch con-
20
(...continued)
under the PMPA, even in the absence of such notice. Beachler, 112
F.3d at 903-04. The central inquiry in both instances is whether
the franchisor has terminated the franchisee’s statutory franchise
or failed to renew the parties’ franchise relationship, or formally
expressed its intent to do so.
No. 01-2495 37
tends that the defendants have failed to renew the parties’
franchise relationship because they violated § 2805(f)(1), it
has failed to state a claim upon which relief can be granted
under the Act.
III.
Section 2805(f)(1) does not provide franchisees with an
implied private right of action for a franchisor’s violation of
its provisions. Furthermore, the defendants’ alleged viola-
tion of § 2805(f)(1) does not constitute a nonrenewal of
the parties’ franchise relationship within the meaning
of the PMPA. We, therefore, AFFIRM the district court’s
judgment granting the defendants summary judgment of
Dersch’s PMPA claim and denying Dersch’s motion for
summary judgment, as well as the court’s order denying
Dersch’s motion to alter or amend its judgment, for the
reasons stated in this opinion.
CUDAHY, Circuit Judge, dissenting.
I.
The question that remains after studying the opinion of
the district court and that of the majority (which affirms
the district court by applying a different analysis) is ob-
vious: what possible purpose could Congress have had in
amending the PMPA in 1994 to add § 2805(f)(1)? Although
38 No. 01-2495
the district court set out to provide some sort of substance
for this admittedly remedial piece of federal legislation, its
efforts were, in the end, about as fruitless as those of the
majority, which virtually writes § 2805(f)(1) out of the
United States Code. The majority can only speculate that
the section was intended to give some unspecified heft to
some unspecified state remedy—thereby completely de-
parting from the broader aim of remedying gross dispari-
ties in franchisor-franchisee bargaining power and provid-
ing regulatory uniformity on a national basis. See Beachler
v. Amoco Oil Co., 112 F.3d 902, 904 (7th Cir. 1997). The
only state law claim mentioned is economic duress—a
notably slippery cause of action even if marginally fortified
by § 2805(f)(1). Maj. Op. at 27. The majority is quite frank in
conceding that in its view a federal claim under § 2805(f)(1)
can be recognized only if the franchisee is willing to commit
economic suicide by allowing its gasoline supply to be
terminated.
A.
The district court attempted to avoid such a harsh result
by tentatively allowing recovery on a theory of constructive
nonrenewal. Such a theory has been clearly recognized
in some circuits, see, e.g., Pro Sales, Inc. v. Texaco, USA, 792
F.2d 1394, 1399 (9th Cir. 1986) (“[A] franchisee who signs
a successor contract under protest and promptly seeks to
invoke its rights under the PMPA . . . has not ‘renewed’ the
franchise relationship so as to bar relief under the
PMPA.”), and finds support in dicta in the Seventh Circuit,
see Boyers v. Texaco Refining & Marketing, Inc., 848 F.2d 809,
813 n.4 (7th Cir. 1988) (“Our decision that Boyers has
waived his right to raise the ‘constructive nonrenewal’
argument on appeal should not affect his ability to pursue
this theory on his main claim if the facts supporting
this theory are laid out sufficiently in Boyers’s Second
No. 01-2495 39
Amended Complaint.”). This theory treats a renewal
achieved by threats of termination in the same way as a
literal nonrenewal. However, in exploring this promising
approach, the district court was led astray into treating
§ 2805(f)(1) as applicable only to prospective contract
provisions and not to those provisions contained in earlier
franchise agreements. Thus, the district court’s constructive
nonrenewal analysis, although initially encouraging, is
almost as thorough in erasing § 2805(f)(1) from the federal
code as is the route taken by the majority.
The majority opinion, even though it rejects the construc-
tive nonrenewal approach, disapproves of the analysis
applied by the district court in draining § 2805(f)(l) of sub-
stance after that court has applied a constructive nonre-
newal theory. The majority “agree[s] with Dersch’s argu-
ments in some respects” that the district court’s application
of the constructive nonrenewal theory “ ‘kept it from giving
any consideration whatsoever to the substantive require-
ments of Section 2805(f)(l)’ ” and “permits ‘franchisors to
continue to insist upon the waiver or release of rights, if
they have historically done so.’ ” Maj. Op. at 20-21 (quoting
Appellant’s Br. at 14, 20, 21). In other words, the dis-
trict court erred in holding that only new provisions of a
franchise agreement could invoke the prohibition of
§ 2805(f)(l). The majority goes on to say:
[W]e think that the meaning of § 2805(f)(l)’s text is
clear; a franchisor may not condition the renewal of a
franchise relationship on a franchisee releasing or
waiving rights under federal or state law. As such, a
franchisor cannot circumvent § 2805(f)(l)’s release and
waiver prohibition by offering to renew the parties’
franchise relationship on terms and conditions identical
to those contained in a prior franchise agreement,
whether the prior agreement was entered into before or
40 No. 01-2495
after enactment of the statute. Nor is a franchisor
permitted to use § 2802(b)(3)(A) [the good faith pro-
viso] to do an end run around § 2805(f)(l)’s release and
waiver prohibition.
Maj. Op. at 21.
I could not agree more fully with these observations of
the majority that reject the district court’s application of
§ 2805(f)(1)’s prohibition only to new contract terms and
that court’s invocation of the good faith justification of
§ 2802(b)(3)(A) to validate the Disputed Provisions that
have been contained in past agreements. As a matter of
law, terms that violate § 2805(f)(1) cannot qualify as good
faith proposals. How can one in good faith insist on the
inclusion in the agreement of terms forbidden by statute?
See, e.g., Coast Village, Inc. v. Equilon Enterprises, LLC, 163 F.
Supp. 2d 1136, 1178 (C.D. Cal. 2001) (“Notwithstanding
Plaintiffs’ failure to rebut the evidence presented by De-
fendant of its good faith development of the provisions in
the new agreement(s) . . . several provisions of the new
agreement(s) require waiver of rights protected by state or
federal law, and therefore agreement thereto cannot be
required to effect renewal of Plaintiffs’ franchises.”); River-
dale Enterprises, Inc. v. Shell Oil Co., 41 F. Supp. 2d 56, 67 (D.
Mass. 1999).
To confine the prohibition of § 2805(f)(1) to new terms, or
only to changes in terms, is a construction that simply finds
no support in the text of § 2805(f)(1). See Maj. Op. at 21.
And to rely on § 2802(b)(3)(A), which permits franchisors
to nonrenew a franchise agreement relationship if the fran-
chisee refuses to agree to changes and additions made in
good faith in the normal course of business, is to indulge
the contradiction that unlawful terms can somehow be of-
fered in good faith and in the normal course of business.
No. 01-2495 41
See Coast Village, Inc., 163 F. Supp. 2d at 1178; Riverdale
Enterprises, Inc., 41 F. Supp. 2d at 67.
Therefore, while I agree with the district court in follow-
ing Pro Sales, Inc., supra, to find a basis for this lawsuit
through a constructive nonrenewal analysis, I cannot agree
that that approach can be thwarted, as it was by the district
court, by restricting it only to new terms or to changes in
terms, or by employing the good faith proviso to trump
§ 2805(f)(1). I would pursue, as a preferred option, a
constructive nonrenewal analysis, but in that context would
apply § 2805(f)(1) to the Disputed Provisions here even
though they have been included in past agreements.
Further, I would not permit § 2802(b)(3)(A) [the good faith
proviso] to override the prohibition of § 2805(f)(1).
B.
The points which the majority attempted to make in its
1
first response to the observations of the dissent are re-
markable, but far from convincing. Citing the provisions of
the PMPA for 90 days’ formal notice of nonrenewal, to-
gether with the associated provisions for preliminary
injunctive relief, the majority has contradicted most of
what it carefully attempted to demonstrate in the earlier
1
The reader, seeing the majority opinion and dissent simulta-
neously as parts of a single text, may find the interplay of the var-
ious arguments and counter-arguments both muddled and
contradictory, since they have been composed progressively, one
after another, and are found in layers like the sedimentary strata
of the fossil record. I have tried to provide some sense of where
in the temporal evolution of this dissent particular comments
belong, but I recognize the extreme difficulty of keeping things in
coherent order.
42 No. 01-2495
part of its opinion. Thus, the majority has gone to great
lengths to establish that there can be no federal claim based
on § 2805(f)(l) unless there has been an actual termination
or nonrenewal of a franchise. The majority says that, “if a
franchise impermissively conditions the renewal of a
franchise relationship on the franchisee releasing or waiv-
ing federal or state law rights, and the franchisee’s refusal to
agree to this conditional renewal results in the nonrenewal of
that relationship, the franchisor’s violation of § 2805(f)(l)
may be examined in conjunction with the franchisee’s
claim for the nonrenewal of its franchise relationship.” Maj.
Op. at 27-28 (emphasis added). Nothing could be clearer
than this. And, of course, it is the basis of my observation,
to which the majority now objects, that the franchisee must
either waive its rights under § 2805(f)(l) or commit eco-
nomic suicide by allowing its gasoline supply to be cut
(through nonrenewal of the franchise).
The majority, also in its first response to my dissent,
points to provisions for a notice of nonrenewal and for
associated preliminary injunctive relief as affording an
escape from the “Catch-22” which I have outlined. 15 U.S.C.
§ 2805(b)(2). In effect, the majority is saying that, in a §
2805(f)(1) case like the one before us, the statutory notice of
nonrenewal is the precise equivalent of nonrenewal itself
and may be treated as nonrenewal for purposes of main-
taining suit. This position, of course, recognizes the validity
of constructive nonrenewal, a concept that the majority
opinion has otherwise attempted thoroughly to demolish.
Constructive nonrenewal merely means treating something
which is literally or in fact not nonrenewal as actual non-
renewal for purposes of litigation. A substantial part of the
majority opinion is dedicated to showing the error of con-
No. 01-2495 43
2
structive nonrenewal, yet, in response to the dissent, the
majority argues that the statutory notice of nonrenewal
really amounts to actual nonrenewal for purposes of sus-
taining a lawsuit based on § 2805(f)(1). This is a convenient
3
contradiction that simply will not hold water. The majority
2
Thus, the majority states, “When a franchisor’s violation of
§ 2805(f)(1) does not result in a nonrenewal of the parties’ fran-
chise relationship, a franchisee must resort to remedies outside of
the PMPA to vindicate its rights under the statute.” Maj. Op. at
24.
3
Now, I look at what I hope (as I compose this chronologically-
last footnote) is the final version of the majority and dissenting
opinions. I see that in the course of numerous passages back and
forth of drafts of these opinions between the majority and me
(and the revisions consequent to these passages) the majority
opinion seems to have evolved from emphatic disapproval of a
theory of constructive nonrenewal to an embrace of that ap-
proach. The majority in effect now says that Dersch made only a
procedural error. Had this small gasoline distributor merely
waited for a formal notice of termination instead of signing the
franchise agreement under protest, he would have been free to
litigate his rights under § 2805(f)(l) to his heart’s content.
This is a procedural possibility not mentioned by either of the
parties or by the district court nor, as far as I am aware, by any-
one else in connection with the enforcement of rights under
§ 2805(f)(l). I am not prepared to say that constructive non-
renewal as outlined by the majority does not exist, but the
majority’s route is certainly not expressly provided in the words
of the statute. There is nothing to indicate a preference by
Congress for the solution proposed by the majority to the path
outlined in Pro Sales and open to Dersch here.
However, the important thing to me is not the procedural
formalities (not) observed by Dersch, but rather the possibility of
(continued...)
44 No. 01-2495
also asserts that the standards for preliminary relief under
the PMPA are lenient in their demands on the franchisee.
They can hardly be lenient enough to provide preliminary
relief when by the majority’s analysis elsewhere there can
be no permanent relief under § 2805 (f)(l)—injunctive,
declaratory or in damages—unless there has been an actual
4
nonrenewal of the franchise. And, if suit may be main-
3
(...continued)
maintaining suit without suffering a loss of fuel supply. My
position here is that Dersch should not be deprived of this
opportunity in the case before us, whether or not there was some
other procedure that might have provided a similar opportunity.
As I have noted, the procedure proposed by the majority is far
from clear from the text of the statute and seems to me in no way
superior to the Pro Sales approach.
Nonetheless, I am pleased that this dissent has apparently re-
sulted in the concession that constructive nonrenewal is alive and
well—albeit in a slightly different form than that pursued by
Dersch and Pro Sales. How these developments will be viewed by
the franchisor community remains to be seen. In the responses of
the majority to this dissent, franchisors may have won the battle
but lost the war.
4
See Maj. Op. at 15 (“In order to prevail, the franchisee must
prove, as a threshold matter, a . . . nonrenewal of its franchise.”);
Maj. Op. at 27 (“We, therefore, conclude that if a . . . coerced
relinquishment of [a federal or state] right does not result in a
nonrenewal of the parties’ franchise relationship, the franchisee
must resort to remedies outside the PMPA context to enforce
§ 2805(f)(1)’s release and waiver prohibition.”); Maj. Op. at 27-28
(“[I]f a franchisor impermissibly conditions the renewal of a
franchise relationship on the franchisee releasing or waiving
federal or state law rights, and the franchisee’s refusal to agree to
this conditional renewal results in the nonrenewal of that rela-
(continued...)
No. 01-2495 45
tained by treating notice of nonrenewal as the functional
equivalent of nonrenewal itself, what need would there be
for something formally titled “a private right of action”? In
fact, if the majority’s view of the 90-day notice provision is
correct, the majority is recognizing a procedure which in
every relevant respect is functionally equivalent to a private
right of action for the franchisee.
Additionally, the only case from this circuit, Beachler,
cited to support the majority’s contention that Dersch
should have refused to sign the renewal agreement and
filed suit upon receiving statutory notice of nonrenewal
does not stand for the proposition that PMPA relief
requires such formal notice under § 2804. Beachler, 112 F.3d
902. If anything, Beachler supports the proposition that
Dersch’s PMPA cause of action arose the moment Shell
said “take-it-or-leave-it,” and was unaffected by whether
or not Dersch signed under protest. In Beachler we analyzed
the availability of relief for franchisees under the PMPA
without regard to whether formal notice of nonrenewal or
termination under § 2804 was ever issued. See id. at 903-04
(“Once Amoco’s plans for the assignments and sales were
finalized, affected dealers in Peoria and Springfield were
notified both orally and in writing. Six of the sixteen deal-
ers then instituted this action under the PMPA for prelimi-
nary and permanent injunctive relief.”). The franchisees in
Beachler filed suit upon written notice of the pending as-
signment and were denied relief because “the franchi-
sees” have failed to show that the assignments would give
rise to a termination or nonrenewal under the PMPA.” Id. at
4
(...continued)
tionship, the franchisor’s violation of § 2805(f)(1) may be exam-
ined in conjunction with the franchisee’s claim for the non-
renewal of its franchise relationship.”).
46 No. 01-2495
909 (emphasis added). What is significant is that the right
to relief under the PMPA did not depend upon either of the
grounds advanced by the majority: (1) actual nonrenewal
or termination or (2) formal notice of nonrenewal under
5
§ 2804(a). Therefore, as I have already argued, Dersch’s
cause of action for constructive nonrenewal, as analyzed
under Beachler, arose when Shell made its take-it-or-leave-it
5
The majority’s responses to my dissent appear to recognize
subliminally that it is on perilous ground with its newly con-
ceived acknowledgment that actual nonrenewal is not a precondi-
tion to PMPA relief. Because the statute does not expressly
require statutory notice as a precondition to the preliminary relief
cited by the majority (it merely requires the still indeterminate
concept of “nonrenewal” contained in § 2805(b)(2)(A)(i)), the
natural next question is why must we adopt the majority’s
requirement of formal statutory notice? The majority answers
that question by citing to the district court of the Southern
District of Texas for its proposition that the absolute earliest
moment at which PMPA relief is available is at the time formal
statutory notice is given under § 2804(a). Shell v. Shell Oil Co., 216
F. Supp. 2d 634 (S.D. Tex. 2002). However, the majority fails to
indicate how, within this analytical framework, Beachler’s
plaintiffs could have, any more than Dersch, had a cause of action
for nonrenewal based on Amoco having “announced its
intention[s]”; a circumstance that, like the take-it-or-leave-it offer
given Dersch, evidences a total lack of formal statutory notice of
nonrenewal. Beachler, 112 F.3d at 902. Texas’ admittedly extensive
understanding of all things petroleum notwithstanding, Beachler
is good law in this circuit and is extensively relied upon by the
majority for its test of “nonrenewal,” and Beachler clearly does not
require formal statutory notice of nonrenewal as a prerequisite to
“nonrenewal.”
No. 01-2495 47
6
offer of renewal containing the contract terms that violated
7
§ 2805(f)(1).
The majority’s observations about Pro Sales and its
relation to Dersch’s claim are equally wide of the mark.
First, the majority faults Dersch for failing to “promptly
seek to invoke its rights under the PMPA.” “Promptly” in
the case of Pro Sales, by the majority’s reckoning, appar-
ently meant in a matter of days or weeks, not a year as in
Dersch’s case. However, I think this Pro Sales requirement
relates significantly to the kind of relief being sought. In
Pro Sales the franchisee apparently asked for injunctive
relief. Dersch requests only declaratory relief (which I
suppose might translate into reformation of the franchise
agreement) and there is no particular need for a speedy
resolution in that context or, for that matter, a need to
6
Subsequent revisions of the majority opinion appear to indicate
that it might, perhaps, agree with the statement in the text when
it lowers its requirement for a nonrenewal suit to simply a
“formal[ ] express[ion]” of an intent to nonrenew. Maj. Op. at 35-
36 n.20. This immediately brings to the forefront what is perhaps
the true kernel of my disagreement with the majority: how and
why is Dersch’s cause of action under the PMPA extinguished by
its agreement under protest (ostensibly to preserve its rights
under the PMPA) to the unlawful conditions that are the trigger
of those very rights? In the interest of bringing this dissent to a
final close, I leave that question for future discussion and possible
resolution.
7
The ultimate holding of Beachler, that there was no nonrenewal,
does not undermine this analysis. That holding resulted from
an examination of whether the prospective effect of the an-
nounced assignment would be nonrenewal. Similarly, Dersch’s
case should be analyzed to determine if the prospective effect of
the take-it-or-leave-it offer would be nonrenewal, which, as noted
supra, I believe it would be.
48 No. 01-2495
maintain the old contract in force pending a declaration of
its illegality (and the excision of its void provisions).
Further, the statutory language of which the majority is so
fond defines for us what is considered “promptly” done
under the PMPA: filing suit within one year of the non-
renewal. § 2805(a). The majority cannot be claiming that
Dersch sat on its rights without notice to Shell: Dersch
signed under protest after clearly indicating its lack of
assent to the contract terms. There is no question that
Dersch has acted as “promptly” as the PMPA requires.
The majority also faults the Pro Sales court for ignoring
the PMPA provisions for receipt of the formal notice of
termination and immediate recourse to preliminary in-
junctive relief. I fail to see the relevance of this point. The
fundamental analysis of the basic merits of rights under the
PMPA by the Ninth Circuit is quite different from the
analysis by the majority here. Whether the Pro Sales court
thought the PMPA provisions for notice and preliminary
relief were important, let alone critical, does not seem to
me significant in the context of its basic approach. After all,
preliminary, status-quo-maintaining procedures are purely
ancillary to statutory rights. They may afford a more orderly
mode for enforcing rights, but they are hardly central to the
analysis. Nor does § 2805(b)(2) significantly alter the
balance of bargaining power as between franchisor and
franchisee.
II.
A.
As an alternative approach, I believe that an independent
basis for plaintiff’s suit might be found even without re-
course to the theory of constructive nonrenewal (although
an independent basis is not necessary to the result here).
Both the majority and the district court here rejected the
No. 01-2495 49
possibility of a private right of action for franchisees in-
jured by breaches of § 2805(f)(1). Both the district court and
the majority relied heavily on Alexander v. Sandoval, 532
U.S. 275 (2001), in reaching this conclusion. I certainly have
no quarrel with the thesis that the existence of a private
right is a matter of Congressional intent. But Sandoval,
which involved an alleged private right to sue on regula-
tions that extended the rights conferred by the statute, is a
far cry from the present case, which deals with a new stat-
utory right that is an awkward fit in the express enforce-
ment provision already contained in the statute. This is not,
as the majority characterizes it, an attempt to read new
types or modes of remedies into the statute. Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-20 (1979).
Section 2805 clearly provides for damages as well as in-
junctive relief. Nor is this an attempt to expand an existing
cause of action to capture new, extrastatutory conduct.
Sandoval, 532 U.S. 275. An unarguable purpose of the statute
is to furnish private rights to franchisees to protect them-
selves from franchisors who use imbalances in bargaining
power to force compliance with franchisor policies. Beachler,
112 F.3d at 904. And this certainly is not an attempt to hijack
a funding statute whose purpose and function lie far
removed from private citizen actions. Gonzaga Univ. v. Doe,
536 U.S. 273, 122 S. Ct. 2268, 2275-76 (2002).
The cases upon which the majority relies forbid the dis-
tortion of statutory language to create remedies where none
were intended. These cases are distinguishable from the
present case, where Congress’s clear intent was to em-
power private actors, the franchisees, with a cause of ac-
tion. While the original statute defined those rights in
terms of literal nonrenewal or termination, the 1994 amend-
ments expanded that right in § 2805(f)(1) to include
renewal accomplished at economic gunpoint, where the
threat of nonrenewal forced waivers of rights otherwise
50 No. 01-2495
provided by law. To see the statute in its totality and con-
clude that Congress’s arrangement shows an intent not to
allow a remedy for this right defies the logic of the statute.
Section 2805(f)(1) becomes a dead letter unless Dersch has
a basis for maintaining this kind of suit, and the class of
persons entitled to sue will not be enlarged by recognizing
a private right here. In summary, Dersch has a basis for suit
preferably as a matter of constructive nonrenewal or,
as an alternative, by exercising a private right of action
under § 2805(f)(1).
B.
Once it is determined that Dersch has the ability, as a
threshold matter, to maintain an action under the PMPA,
via one or the other statutory alternative, one must next
decide whether, on the merits, the Disputed Provisions
here violate § 2805(f)(1) and actually require the waiver of
a right existing under state law as a condition of the fran-
chise renewal. As the majority makes clear, the franchise
renewal here was offered on a take-it-or-leave-it basis.
Therefore, if the Disputed Provisions required Dersch to
waive a state law right, § 2805(f)(1) was violated.
The first Disputed Provision is Article 5, which allows
the defendant to make alterations in the conditions and
locations of fuel deliveries. Dersch alleges that Indiana law
gives it the right to a franchise agreement that does not
contain provisions allowing the substantial modification of
8
the agreement without the written consent of Dersch. The
district court did not consider the merits of Dersch’s Article
8
The state law sections relevant to the Disputed Provisions are
set forth in the majority opinion, supra, at 6 nn.4-5.
No. 01-2495 51
5 claim, finding instead that Dersch had failed to show that
a constructive nonrenewal took place. While I am inclined
to believe that the effect of Article 5 is to allow a “substan-
tial modification of the franchise agreement” without writ-
ten consent of Dersch, there has been insufficient factual
development to determine whether, in fact, Dersch qual-
ifies for the protection of Indiana’s Deceptive Franchise
Practices Act, Ind. Code §§ 23-2-2.7-1 et seq. I would re-
mand to the district court to determine whether Article 5
violates § 2805(f)(1).
Dersch also argues that Disputed Provision Article 11, in
which Dersch agrees to indemnify Shell even for actions in
which Shell was contributorily negligent, violates Illinois
law establishing the right to several liability for defendants
whose fault is found to be less than 25% of the total fault,
and establishing Dersch’s right to contribution from joint
tortfeasors. See 735 ILCS § 5/2-1117; 740 ILCS § 100/2.
Dersch’s argument appears to have merit. Section 2-1117
would assign liability to Dersch, in admittedly limited cir-
cumstances, only to the extent of actual pro rata fault.
Additionally, the invoked right to contribution under 740
ILCS § 100/2 (that was, for unknown reasons, not expressly
listed by statutory section) gives Dersch the right under
Illinois law to escape liability for Shell’s tortious conduct.
Article 11 requires Dersch to waive this right, and appears,
therefore, to violate § 2805(f)(1). However, on remand, I
would allow Shell to show any circumstances that might
undermine Dersch’s argument on this point. The issue has
not been addressed on the merits by either the district court
or the majority.
On another of the Disputed Provisions, I agree with the
district court that Dersch’s claim under Articles 21.2 and
21.3 of the Agreement cannot succeed. Article 21.2 is inap-
plicable to Dersch because Dersch is not “composed of
52 No. 01-2495
more than one person.” Article 21.3, Dersch argues, is de-
signed to require by contract that managers and directors of
Dersch assume personally the obligations of the corpora-
tion. Although I perceive how Dersch could arrive at its
interpretation of the unusual language of Article 21.3, I
cannot assign such sweeping legal consequences to this
provision taken as a whole. I do not see how the managers
and directors, who are not parties to the franchise agree-
ment, could be assigned personal obligations under it by the
parties. Overcoming the right of a third party not to be
bound by a contract to which she is not a party would
require the third party’s consent. Even if Article 21.3 were
an attempt by Shell to impose contractual obligations on
nonparties, and this is hinted at by the unusual language,
this is simply not a legal possibility.
On a broader front, Shell asserts that the savings clause
of Article 19 eliminates any alleged violation of law sup-
porting Dersch’s action. Article 19 of the Agreement states:
To the extent that any provision of this Contract is in
conflict with any valid and enforceable law existing on
the effective date thereof, that provision shall be
deemed amended to conform with such law as it ap-
plies to this Contract at the time either party takes any
action or exercises or claims any rights under such pro-
vision.
This provision, which presents the most difficult issue in
the case, may well have been designed by Shell to avoid the
sort of confrontation with franchisees with which we are
struggling. If so, the effort almost succeeds, but in the end
seems to deal more with appearances than with reality.
Shell can argue, in accordance with the language of Article
19, that the Disputed Provisions are only enforceable to the
extent permitted by law. Hence, none of the Disputed
Provisions can violate § 2805(f)(1) because they would at
No. 01-2495 53
some point be amended by Article 19 to conform to the
PMPA’s strictures. This has a good ring to it, but there may
be serious questions of timing. While the savings clause
may operate at some future date to amend the invalid pro-
visions, it does so after the violation of § 2805(f)(1) giving
rise to the claim has occurred.
The plain language of § 2805(f)(1) forbids the waiving of
state law rights as a condition of entering into a franchise
agreement. Therefore, the § 2805(f)(1) violation occurs with
the franchisor’s threat of nonrenewal by a take-it-or-leave-it
contract containing a term that waives a franchisee’s state
or federal legal rights. Accord Pro Sales, Inc., 792 F.2d at
1399; Coast Village, Inc., 163 F. Supp. 2d at 1176 (“Franchi-
sees facing an immediate threat of nonrenewal may sue
under the PMPA.”). Article 19 amends contract provisions
that have been determined to violate a valid law. There-
fore, even assuming Article 19 operates as Shell argues and
would eventually amend a contract term found to violate
§ 2805(f)(1) retroactively to the date the contract went into
9
effect, Article 19 cannot operate to undo the antecedent
9
This is an assumption, the validity of which is not clear. First,
it is not clear that a contract provision in itself actually violates
§ 2805(f)(1). The language speaks of the conduct of the franchisor
in requiring a state or federal law waiver, not of the invalidity of
the provision itself. As other courts have held, requesting a
waiver of a franchisee’s legal rights is not, per se, illegal. It is only
when that waiver is part of a take-it-or-leave-it contract, and there
are threats of nonrenewal if not accepted, that § 2805(f)(1) is
violated. See Coast Village, Inc., 163 F. Supp. 2d at 1181 n. 38, 39
(collecting cases). Therefore, unless the waiver standing alone is
per se illegal, Article 19 might not ever take effect.
(continued...)
54 No. 01-2495
threat. And it is the threat of nonrenewal to induce accep-
tance of renewal terms violating § 2805(f)(1) that forms the
basis of the claim.
Would a lawyer advise her franchisee-client to submit to
terms abrogating the client’s state law rights in the hope
that the contract would somehow be amended to conform
to state law in the future? This seems to me to be the
practical context in which to view the problem.
9
(...continued)
Second, the effect of Article 19 in this context may, in some
sense, be illusory. A franchisee faced with a take-it-or-leave-it
contract containing provisions objectionable under § 2805(f)(1)
cannot negotiate those terms, as the phrase “take-it-or-leave-it”
makes clear. After the contract becomes effective, Shell is not
simply going to remove those terms upon the objection of a
franchisee that § 2805(f)(1) has been violated (especially under the
majority’s view eviscerating such a franchisee’s PMPA rights).
Instead, at that point, litigation will commence. Only after a court
has ruled that § 2805(f)(1) has been violated would Article 19
possibly effect an amendment of the offending provision, thereby
merely duplicating, in part, what the court’s ruling has already
done. From this perspective, Article 19 is mere surplusage to the
PMPA remedies. Although likely well-intentioned, enforcement
of Article 19 might be as difficult and costly as enforcement of
rights under the PMPA.
This is not to say Article 19 lacks any valid purpose. If Shell
were to pursue a breach of contract action against a franchisee,
the franchisee might defend by claiming the contract is void for
illegality of certain provisions. Article 19 might operate in such
circumstances to amend the offending contract provisions and
allow the primary claim, breach of contract, to proceed on the
merits. That curative use of Article 19 is starkly different from the
nullifying use being advocated by Shell in this case.
No. 01-2495 55
III.
I would, therefore, reverse and remand to the district
court for further proceedings, and I respectfully DISSENT.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-26-02