exxon mpa exhibits prop order(2)

8/13/2019 Exxon MPA Exhibits Prop Order(2)

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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

DISTRICT OF COLUMBIA,

Plaintiff,Civil Action No. 13-cv-005874B

v. Judge Craig ISCOE (Calendar 14)

EXXONMOBIL OIL CORP., et al. Next Court Date: 12/13/13

Defendants. Event: Initial Scheduling Conference

MEMORANDUM IN SUPPORT OF DEFENDANTEXXONMOBIL OIL CORP.S MOTION TO DISMISS

Defendant ExxonMobil Oil Corp. (ExxonMobil) respectfully submits this

memorandum of law in support of its Motion to Dismiss the District of Columbias (the

Attorney General or AG) Complaint pursuant to Superior Court Rule of Civil Procedure

12(b)(6).

This case should be dismissed for three principal reasons: (1) the Attorney General does

not have standing or the authority to bring its claim under the Retail Service Station Act, D.C.

Code 36-301.01 et seq. (the RSSA); (2) the Attorney Generals complaint fails to state a

claim against ExxonMobil because ExxonMobil is not a distributor under the RSSA; and

(3) ExxonMobils agreements are not the type of agreements the RSSA covers because they are

neither marketing agreements with a retail dealer nor exclusive.

PRELIMINARY STATEMENT

This lawsuit comes on the heels of a failed two-year long antitrust investigation instigated

by the D.C. Council and commenced by the Attorney General in 2011 to allegedly address

perceived concerns about rising gasoline prices in the District. When legislative efforts couched


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as measures to curtail rising gas prices did not pass, the AG launched an antitrust investigation.

But by the summer of 2012, the AG conceded that competition in D.C.s gasoline market was

alive and well, concluding that in many . . . parts of the city, there was no increase in the

gasoline prices, and that where there was an increase, those residents had other alternatives . . .

to go and get cheaper gasoline.1 The U.S. District Court for the Eastern District of Virginia

validated the AGs conclusion when granting summary judgment in favor of codefendant here,

Anacostia Realty, LLC (Anacostia), in an antitrust lawsuit brought by a group of D.C. and

Virginia retail service station operators. See SSS Enters., Inc. v. Nova Petroleum Suppliers, LLC

et al., Civ. No. 1:11-cv-1134, 2012 WL 3866490, at *3 (E.D. Va. Aug. 30, 2012) (Plaintiffs

have no evidence of . . . any harm to competition in the relevant geographic markets between all

competitors, or that any consumer was injured.) affdNo. 12-2088, 2013 WL 3770710 (4th Cir.

Jul. 19, 2013). Inexplicably, the AG now seeks to dress up its failed antitrust efforts in new

clothesD.C.s RSSA. The AGs claim, howeverlike the Emperorhas no clothes.

First, the AG does notand cannotsatisfy the threshold standing requirements to

enforce the RSSA, and the AGs claim that the action is brought on the basis of a generalized

harm to the residents and economy of D.C. is specious, at best. Indeed, by the AGs own

admission in the Complaint, ExxonMobils purported wrong affects only a small minority of the

gasoline stations in the District, and the Complaint is devoid of any mention of that alleged

wrong causing a particularized injury to the Districts consumers.

Second, the Complaint fails to establish that the RSSA applies to ExxonMobil. The

1 See Mike DeBonis,Joe Mamo Appears to be off the Hook in Antitrust Probe,

http://www.washingtonpost.com/blogs/mike-debonis/post/joe-mamo-appears-to-be-off-the-hook-in-antitrust-

probe/2012/07/13/gJQASrBriW_blog.html (last visited Oct. 7, 2013).

[A] trial court may consider public documents without converting a motion to dismiss under Rule 12(b)(6) to a

motion for summary judgment under Rule 56. Drake v. McNair, 993 A.2d 607, 616 (D.C. 2010).


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RSSA mandates there to be a marketing agreement between a distributor and a retail

dealer for it to apply. But the Complaints conclusory allegations fail to meet even the

foundational and definitional requirements needed to trigger the RSSA in the first place. The

AG concedes as much, acknowledging in the Complaint that ExxonMobil is nota distributor and

that it has no agreements with any retail dealer, much less any one of the D.C. retail dealers at

issue.

Third, to the extent ExxonMobil has any agreements that could remotely be construed

relevant to the claim alleged here, the Complaint still fails as a matter of law. Specifically,

because ExxonMobils agreements are with distributorsnot retail dealersand because they

do not provide that the distributors have an exclusive right to sell gasoline, they do not violate

the RSSA.

BACKGROUND

Of the approximately 107 total retail gasoline service stations currently located in the

District of Columbia, at issue here are stations that ExxonMobil had, at one point, owned,

alleged in the Complaint to be 27. See Compl. 1, 29. These gas stations had been run

primarily by independent retail dealers subject to individual PMPA2

franchise agreements with

ExxonMobil. These individual franchise agreements allowed ExxonMobil to sell them

ExxonMobil-branded gasoline. In 2008, however, ExxonMobillike many other oil refiners

before itpublicly announced its intent to divest its gasoline stations in the United States,

including to distributors, like Defendants Anacostia Realty, LLC and Springfield Petroleum

Realty, LLC (Springfield, and collectively with Capitol Petroleum Group, LLC (CPG), and

2 PMPA stands for the Petroleum Marketing Practices Act, 15 U.S.C. 2801 et seq.


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Anacostia, the CPG Defendants).3

After extensive negotiations, on December 19, 2008, ExxonMobil entered into an

agreement with DAG Enterprises, Inc. (an affiliate of CPG) to purchase a number of gasoline

stations in the D.C. metropolitan area (the Purchase Agreement). See Compl. 17. In addition

to this Purchase Agreement, ExxonMobil assigned the real estate, equipment and franchise

agreements for several of its D.C. stations to Defendant Anacostia on June 16, 2009 (the

Anacostia Assignment), and for one D.C. station to Defendant Springfield on February 3, 2010

(the Springfield Assignment, collectively the Assignment Agreements).4 See Compl. 18-

19;see also Anacostia Assignment and Springfield Assignment, attached as Exs. A and B to the

Declaration of Ross C. Paolino dated Oct. 7, 2013 (Paolino Decl.).

ExxonMobil also entered into separate Distributor PMPA Franchise Agreements with

Anacostia (the Anacostia Distribution Agreement) and Springfield (the Springfield

Distribution Agreement, collectively the Distribution Agreements). These agreements gave

each of Anacostia and Springfield the nonexclusive right to distribute ExxonMobil-branded

gasoline to assigned stations, as well as to use ExxonMobils proprietary marks in connection

with its authorized distribution activities. See Compl. 18-19; Anacostia Distrib. Agmt. 1 (a)

and Springfield Distrib. Agmt. 1(a), attached respectively as Exs. C and D to the Paolino Decl.

The independent retail dealers, however, were not parties to the Distribution Agreements,

nor did they have any express or inherent rights in those agreements. Moreover, although the

Distribution Agreements require distributors Anacostia and Springfield to purchase Products

from ExxonMobildefined as ExxonMobil-branded motor gasoline and diesel fuelthe

3 See, e.g., Alan Chernoff,ExxonMobil to Sell 2,220 Gas Stations, CNN.COM (Jun. 13, 2008),

http://edition.cnn.com/2008/US/06/12/exxon.mobil/index.html (last visited Oct. 7, 2013);see also Drake, 993 A.2d

at 616.4 The Anacostia Assignment identifies additional non-D.C. stations transferred pursuant to a separate agreement.

Neither those non-D.C. retail stations nor that separate purchase agreement are relevant here.


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agreements specifically state that ExxonMobil does notgive [Anacostia and/or Springfield] an

exclusive right . . . to sell the Products . . . . See Anacostia Distrib. Agmt. 1(a), (f);

Springfield Distrib. Agmt. 1(a), (f) (emphasis added). In fact, ExxonMobil reserves the right

to compete with both Anacostia and Springfield at gasoline stations by, inter alia, [e]stablishing

. . . other distributorships with distributors other than Anacostia and Springfield. See Anacostia

Distrib. Agmt. 1(f)(1); Springfield Distrib. Agmt. 1(f)(1).

As a result of ExxonMobils 2008 sale of its retail service stations and subsequent

divestment of its distribution business to Anacostia and Springfield, the CPG Defendantsnot

ExxonMobilown and supply these gasoline stations, as well as other branded and unbranded

stations in and around the District. The AG acknowledges this fact. See Compl. 1-3, 12.

Further, after transferring the gasoline stations to Anacostia and Springfield pursuant to the

Purchase Agreement in 2008, ExxonMobil was no longer a distributor, and did not have any

ongoing contractual relationship with the independent retail dealers. The AG acknowledges the

fact that ExxonMobil is not currently a distributor (see Compl. 20), and does not allege that the

assigned franchise agreements are still in effect.

Notwithstanding these uncontroverted facts, the Complaint loosely alleges that

ExxonMobil has agreements with retail dealers that violate the RSSA by denying those dealers

who purchase ExxonMobil-branded gasoline the benefits of competition. See Compl.

31-33. The Complaint, however, wholly fails to allege how any of ExxonMobils agreements

fall under the scope of agreements that the RSSA is authorized to cover, or what harm has come

to District residents specifically from ExxonMobils agreements.

STANDARD OF REVIEW

When reviewing a motion to dismiss under Sup. Ct. Civ. R. 12(b)(6), dismissal is


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appropriate when it appears beyond doubt that the plaintiff can prove no set of facts in support

of [its] claim which would entitle [it] to relief. Cauman v. George Washington Univ., 630 A.2d

1104, 1105 (D.C. 1993) (internal quotation marks and citation omitted). While the Court takes

all factual allegations in the complaint as true, the Court is not bound to accept as true a legal

conclusion couched as a factual allegation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007) (quoting Papasan v. Allain, 478 U.S. 285, 286 (U.S. 1986). Indeed, the plaintiff is

required to provide grounds for relief that go beyond labels and conclusions, or a formulaic

recitation of his claim. Id.

ARGUMENT

I. THE AG HAS NO STANDING TO BRING SUIT AND NO RIGHT TO ENFORCETHE RSSA.

The AG lacks both the statutory authority under the RSSA and parens patriae standing to

bring its claim against ExxonMobil in this Court for all the reasons set forth in Parts III.A-B.1 of

the CPG Defendants Memorandum in Support of its Motion to Dismiss, which ExxonMobil

joins in its entirety.

II. EXXONMOBIL IS NOT A PROPER PARTY, BECAUSE THERE IS NOMARKETING AGREEMENT.

When the District of Columbia Council passed the RSSA in 1977, it enacted Subchapter

IIIentitled Marketing Agreementsspecifically to empower independent retail dealers to be

able to protect their own economic well-being against a distributor.5

See REPORT OF THE

COMMITTEE ON TRANSPORTATION AND ENVIRONMENTAL AFFAIRS, COUNCIL OF THE DISTRICT OF

COLUMBIA, ON BILLNO. 1-333, THE RETAIL SERVICE STATION ACT OF 1976, AND BILLNO. 1-

39, THE RETAIL SERVICE STATION ACT 25-28 (1976) (hereinafter, the Committee Report),

relevant excerpts attached as Ex. E to the Paolino Decl. For example, Subchapter III prohibits

5 Subchapter III of the RSSA is referred to in the Committee Report as Title II.


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exclusivity provisions in gasoline supply contracts that a retail dealer has with a distributor (a

marketing agreement), protects the retail dealer from arbitrary termination or nonrenewal of

their marketing agreement, and ensures certain protections if the retail dealer wants to eventually

sell its service station business. See D.C. Code 36-303, 36-305.

Subchapter IIIs protections require a marketing agreement, which the RSSA clearly

construes as any written agreement, or combination of agreements, including any contract,

lease, franchise, or other agreement, which is entered into between a distributor and a retail

dealer where the distributor provides fuel to the retail dealer for sale, in exchange for the retail

dealer receiving the right to use the trademarks or retail service station owned, leased, or

controlled by the distributor. D.C. Code 36-301.01(7) (emphasis added). Simply put, these

RSSA sections solely address a contractual agreement between a distributor and a retail dealer.

Here, the AGs Complaint allegations fail to state a claim under the RSSA for two

reasons: (1) ExxonMobil is not a distributor as defined under the RSSA, and (2) ExxonMobil

has no contractual agreement of any kind with any of the alleged 27 retail dealers at issue in the

Complaint.

A. The RSSAs Definition of Distributor Does Not Apply to ExxonMobil.

Given that the statute requires one party to a marketing agreement be a distributor, the

Complaint does not establish on its face that ExxonMobil meets the RSSAs definition of a

distributor, nor can it. The RSSA defines a [d]istributor as:

any person who is engaged in the business of selling, supplying, ordistributingon consignment or otherwise, motor fuels or

petroleum products to or through retail service stations which itowns, leases, or otherwise controls and who also maintains a

marketing agreement with a retail dealer for the sale or distribution

of motor fuels or petroleum products to a retail service station,whether or not such distributor owns, leases, or otherwise controls

such retail service station.


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D.C. Code 36-301.01(2) (emphasis added). Thus, ExxonMobil is only a distributor if it sells,

supplies, or distributes gas to a retail service station.6

The Complaints sole attempt to classify ExxonMobil as a distributor lies in a single

sentence in paragraph 20. Threadbare as it is, the sentence claims only that ExxonMobil was a

distributor (Compl. 20)conceding that, at the time of the suit, ExxonMobil fails to meet

the RSSAs definition of a distributor:

Immediately priorto transferring its D.C. gasoline stations to

Anacostia or Springfield pursuant to the Purchase Agreement,

Exxon distributed gasoline directly to independent retail dealers

operating gasoline stations that Exxon owned in D.C. Exxon was,

therefore, a distributor within the meaning of D.C. Code 36-301.01(2).

Compl. 20 (emphasis added); compare with Compl. 26 (alleging that Anacostia and

Springfield are distributors within the meaning of [the RSSA] (emphasis added)). The

RSSA, however, defines distributor in the present tense, and there is nothing in the RSSA

itself, the legislative history, or logic to suggest that the statute applies in the retroactive manner

the AG relies on. See D.C. Code 36-301.01(2) (defining a distributor as a person who is

engagednot was engagedin the business of selling, supplying, or distributing motor fuels).

Indeed, [u]nder D.C. law, statutes are presumed not to apply retroactively. See Metroil, Inc. v.

ExxonMobil Oil Corp., 672 F.3d 1108, 1113 (D.C. Cir. 2012).

The AGs allegation in paragraph 20 collapses under the weight of its own admission and

destroys the foundation of the Complaints RSSA claim against ExxonMobil. Because

ExxonMobil is not a distributor, there can be no marketing agreement, and without a marketing

agreement, a claim under Subchapter III of the RSSA simply cannot stand. Accordingly, the

AGs Complaint must be dismissed. See, e.g. Twin Towers Plaza Tenants Assn, Inc. v. Capitol

6 The second part of the definition of a distributorthat it be with a retail dealer (D.C. Code 36-301.01(2))is

addressed in Section II.B, below.


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Park Assocs., L.P., 894 A.2d 1113, 1119-20 (D.C. 2006) (dismissing plaintiffs claim for

violating the D.C. Rental Housing Conversion and Sale Act, because transaction at issue did not

meet statutory definition of a sale); Hildebrandt v. Johanns, 422 F. Supp. 2d 250, 251-52

(D.D.C. 2006) (granting defendants motion to dismiss because defendants activity did not meet

the definition of a credit transaction under the Equal Credit Opportunity Act).

B. ExxonMobil Has No Agreement With a Retail Dealer.

To the extent ExxonMobil could be classified, arguendo, a distributor under the RSSA,

the Complaint still fails on its face because the RSSA requires a distributor to have a marketing

agreement with a retail dealer, and ExxonMobil has no agreements with any retail dealers.7

Indeed, the AG expressly contends that it is Anacostia and Springfield [who] are distributors

within the meaning of [the RSSA]. See Compl. 26; see also id. 12 (The CPG Defendants .

. . have been engaged in the business of transporting, distributing, selling, and marketing

gasoline in and around D.C.). At best, ExxonMobil has agreements with distributors, who in

turn have agreements with retail dealers. No amount of creative pleading of an upstream

contractual arrangement can make ExxonMobils agreements a marketing agreement under the

RSSA, and the Complaints attempts to avoid this reality fail.

1. ExxonMobils Old Franchise Agreements.

The AG seemingly yet mistakenly relies on the fact that prior to ExxonMobil transferring

its D.C. gasoline stations to Anacostia and Springfield, ExxonMobil was a distributor, and the

7 Further, Section 36-303.06(c) of the RSSA states that [a] civil action brought by a retail dealer against a

distributor pursuant to this section shall be commenced within 2 years after such cause of action arose. If

ExxonMobil is considered a distributor for purposes of the AGs claim because it acted as a distributor

[i]mmediately prior to transferring its D.C. gasoline stations to Anacostia [and] Springfield pursuant to the

Purchase Agreement (Compl. 20), then the AG should have already brought his claim. Specifically, the AG

alleges that the assignments to Anacostia and Springfield were completed on June 16, 2009 and February 3, 2010,

respectively. See Compl. 18-19. At the latest, the AG should have brought its claim against ExxonMobil

sometime before February 2012well over a year ago.


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past franchise agreements it had with the retail dealers have been and are marketing

agreement[s] within the meaning of [the RSSA]. Compl. 20-22. But the AGs argument

succumbs to the same flaw as its claim that ExxonMobil is a distributornamely, it is

attempting to use stale facts as a basis for a current claim. In the first instance, the AG has not

even alleged that these franchise agreements are still in effect. Even so, the agreements

ExxonMobil had with retail dealers when it was a distributor are not marketing agreements for

purposes of the AGs RSSA claim. The AGs own statements make clear that ExxonMobil sold

these stations and assigned them to Anacostia and Springfield between 2009 and 2010. See

Compl. 17-19. As John Adams once said in the trial propelling him to prominence, [f]acts

are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our

passion, they cannot alter the state of facts and evidence.

2. The Combination of the Assignment Agreements and the Wholesale

Distribution Agreements.

The AGs final argument to make ExxonMobil a party to a marketing agreement, and

thus subject to the RSSA, is even more strained. According to the Attorney General, the triple

combination of (1) ExxonMobils Assignment Agreements transferring its gasoline stations to

Defendants Anacostia and Springfield, plus (2) Defendants Anacostias and Springfields own

retail distribution agreements with the 27 at-issue service stations,plus (3) ExxonMobils current

wholesale Distribution Agreements with Anacostia and Springfield, all together create a

marketing agreement ensnaring ExxonMobil under the RSSA. See Compl. 21-22. Put

more simply, the AG appears to argue that if Anacostia and Springfield have supply contracts

with the retail dealers, and ExxonMobil has contracts with Anacostia and Springfield, and

ExxonMobil used to have supply contracts with the retailers years ago, then ExxonMobil

therefore currently has contracts with the retail dealers. The AGs arithmetic does not add up.


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Although the details in the Complaint are scant, the AG seems to be banking on the fact

that the RSSA can cover a combination of agreements entered into between a distributor and a

retail dealer. See D.C. Code 36-301.01(7). Once again, there is nothing in the RSSA, the

legislative history, or the caselaw to remotely suggest, much less support, that a combination of

agreements can mean the tangled net of agreements that the AG proposes. To the contrary, the

statutes plain language should control. See, e.g., Leonard v. District of Columbia, 794 A.2d

618, 625 (D.C. 2002) (The language of a statute should be construed according to its plain

meaning in its usual sense.). That is, combination of agreements merely refers to the one or

more agreement(s) that a distributor has with a retail dealer. Indeed, even if the language was

ambiguous, the RSSAs legislative history explains that a marketing agreement may be

composed of one or more of the following agreements: a retail service station lease, a trademark

agreement, and a motor fuel supply agreement. Comm. Rep. at 49. This comment arguably

makes no sense unless both the distributor and retail dealer are the actual parties to each one of

those agreements, and in privity of contract with one another. See, e.g. Carter v. State Farm

Mut. Auto. Ins. Co., 808 A.2d 466, 472 (D.C. 2002) (court will not read into an unambiguous

statute language that is clearly not there, as doing so would transcend the [courts] judicial

function) (internal quotation marks and citation omitted).

III. EXXONMOBILS DISTRIBUTION AGREEMENTS WITH ANACOSTIA ANDSPRINGFIELD ARE NOT EXCLUSIVE AND THUS DO NOT VIOLATE THERSSA.

In order to violate the RSSA, the marketing agreements at issue must operate to exclude

competition, which is not the case here. The Complaint relies on Sections 36-303.01(a)(6) and

(a)(11) of the RSSA, which provide that [n]o marketing agreement shall:

(6)Prohibit a retail dealer from purchasing or accepting deliveryof, on consignment or otherwise, any motor fuels, petroleumproducts, automotive products, or other products from any


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person who is not a party to the marketing agreement or prohibita retail dealer from selling such motor fuels or products,provided that if the marketing agreement permits the retail dealerto use the distributors trademark, the marketing agreement mayrequire such motor fuels, petroleum products, and automotiveproducts to be of a reasonably similar quality to those of the

distributor, and provided further that the retail dealer shall neitherrepresent such motor fuels or products as having been procuredfrom the distributor nor sell such motor fuels or products under thedistributors trademark;

(11) Contain any term or condition which, directly or indirectly,violates this subchapter.

D.C. Code 36-301.01(a)(6), (a)(11) (emphasis added).

As an initial matter, none of the ExxonMobil agreementsthe old franchise agreements,

the Assignment Agreements, or the Distribution Agreementsexclude competition.

First, ExxonMobils old franchise agreements with the retail dealers (which the AG fails

to allege are still effective) do not violate the RSSA for all of the reasons set forth in Part III.B.2

of the CPG Defendants Memorandum in Support of its Motion to Dismiss, which ExxonMobil

joins in its entirety.

Second, ExxonMobils Assignment Agreements are each two-page documents that

merely assign to Anacostia and Springfield ExxonMobils right, title, and interest in D.C.

gasoline stationsthe agreements contain no additional restrictions whatsoever that act to

prohibit the retail dealers from purchasing gasoline from a party other than Anacostia and

Springfield in violation of Section 36-303.01(a)(6) and (a)(11). See Anacostia Assignment;

Springfield Assignment. Lastly, ExxonMobils current wholesale Distribution Agreements with

Anacostia and Springfield do not create an exclusive relationship for the retail dealers. In the

first instance, the Distribution Agreements are between ExxonMobil and Anacostia, and

ExxonMobil and Springfield, respectively. The retail dealers are not parties to these Distribution

Agreements. Moreover, while the Distribution Agreements require Anacostia and Springfield to

purchase ExxonMobil-branded gasoline and diesel fuel (defined as Products) from


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ExxonMobil, the agreements make it explicitly clear that they do not give [Anacostia and/or

Springfield] an exclusive right in any market or geographic area to sell the Products . . . . See

Anacostia Distrib. Agmt. 1(a), (f); Springfield Distrib. Agmt. 1(a), (f) (emphasis added).

In other words, the distributors are not restricted from purchasing non-ExxonMobil gas from

other sources, and even if they are buying ExxonMobil gas from ExxonMobil, neither Anacostia

nor Springfield hold the exclusive right to sell it to any retail dealer. Indeed, ExxonMobil

specifically reserves the right in each agreement to compete with them and [e]stablish[ ] . . .

other distributorships with distributors other than Anacostia and Springfield. See Anacostia

Distrib. Agmt. 1(f)(1); Springfield Distrib. Agmt. 1(f)(1).

CONCLUSION

For the foregoing reasons, ExxonMobil respectfully requests that the Court dismiss the

AGs Complaint.

DATED: October 7, 2013 Respectfully submitted,

By: /s/ Christina G. SarchioChristina G. Sarchio (D.C. Bar 456254)

David F. Smutny (D.C. Bar 435714)

Ross C. Paolino (D.C. Bar 1004366)Orrick, Herrington & Sutcliffe LLP

Columbia Center

1152 15th

Street, N.W.Washington, D.C. 20005-1706

Telephone: (202) 339-8400

Facsimile: (202) 339-8500E-mail: [email protected],[email protected], [email protected]

Attorneys for Defendant ExxonMobil Oil Corp.


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Exhibit A


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Exhibit B


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SPRINGFIELD PETROLEUM REALTY, LLC

ASSIGNMENT OF PMP A FRANCHISE AGREEMENTS

THIS ASSIGNMENT OF PMPA FRANCHISE AGREEMENTS (this "Assignment") iseffective as of February 3, 2010 between ExxonMobil Oil Corporation, a New York corporation

(hereinafter "Assignor") and Springfield Petroleum Realty, LLC, a Delaware limited liabilitycompany (hereinafter "Assignee") (collectively, the "Parties").

In consideration of the covenants contained in this Assignment, the Sale and Purchase

Agreement dated as of January 6, 2010, as Amended and Restated as of January 26, 2010

between Assignor and Assignee (the "January 26th SPA"), and the Purchase and Sale Agreementdated as of October 28, 2009 between Assignor, Exxon Mobil Corporation, and AnacostiaRealty, LLC, as first assigned to DAG Petroleum Jobbers, Inc., and subsequently assigned to

Assignee (the "Assigned SPA," and together with the January 26th SPA, the "SPA") Assignor,

for valuable consideration received from Assignee, does hereby grant, bargain, convey, assign,transfer and deliver to Assignee all of Assignor's right, title, duties and interest (including any

options) in, to, and under certain Petroleum Marketing Practices Act ("PMPA") FranchiseAgreements attached to this Assignment as Schedule T (collectively, the "PMPA Franchise

Agreements").

Assignee hereby: (a) accepts this Assignment; (b) assumes and agrees to faithfully

perform and observe all of Assignor's obligations arising out of the PMPA FranchiseAgreements after the date of this Assignment in accordance with and subject to all the terms,covenants and conditions of the PMPA Franchise Agreements and all applicable laws, including

the PMPA; and (c) in addition to the obligations of Assignor under the SPA, Assignee shall

indemnify and hold Assignor, its parent, subsidiaries, and affiliates and their respective owners,

officers, directors, agents, employees, divisions, contractors, invitees, servants, representatives

and assigns harmless from and against each and every loss, cost, claim, obligation, damage,liability, payment, fine, penalty, cause of action, judgment (including court costs, expert witness

fees, and attorneys' fees awarded as part of a judgment), lien, or expense, including, but not

limited to, reasonable attorneys' fees and other litigation expenses that arise under, or areincurred on account of any breach or claim of breach of obligations under the PMPA Franchise

Agreements that arises from acts or omissions occurring after the date of this Assignment.

After the date hereof, upon Assignor's request in connection with any request to Assignorfrom any Governmental Authorities, Assignee shall provide for and permit access to the

Property, at no cost to Assignor, as Assignor and its employees, agents, and contractors may

require. Assignor agrees to cooperate with Assignee in connection with such access including:

(i) providing Assignee with copies of any notices or other correspondence from suchGovernmental Authorities concerning such access; (ii) providing Assignee with the scope ofwork intended to be completed by Assignor, if any; and (iii) providing Assignee the opportunity

to participate in any meetings with such Governmental Authorities at which Assignor or itsadvisors are present concerning the nature and scope of the work.

Assignee's obligations under this Assignment shall be incorporated into any assignmentof PMPA Franchise Agreements by Assignee and any sublease of the Property entered into by


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Assignee as a lessee/sublessor. Any tenant of Assignee or its Affiliates shall be required to

fulfill all obligations of Assignee set forth in this Assignment. In the event Assignee fails to

comply with its obligations under this Assignment then, in addition to any rights and remedies

available to Assignor at law or in equity for such breach, Assignee hereby agrees to indemnify,

defend and hold Assignor harmless from any Claims made against Assignor by any persons or

entities including, without limitation, any Governmental Authorities, incurred by Assignor or

assessed against Assignor as a result of Assignee's failure to comply with its obligations under

this Assignment.

With respect to Site #20718 (8526 Leesburg Pike), the parties acknowledge and agree

that: (1) the assignment and assumption contemplated hereunder shall expressly include an

assignment and assumption of all documents incorporated by reference into the PMP A Franchise

Agreement, including, without limitation, the DOSS Additional Provisions to PMP A Franchise

Agreement (and documents incorporated by reference therein) and any and all terms thereunder

(including, without limitation, Article VIII) and the Competitive Allowance Agreement, and (2)

Assignor's entitlement to reimbursement of certain Dealer Franchise Improvement Funds

pursuant to Article VIII of the DOSS Additional Provisions to PMPA Franchise Agreement is

secured by that certain Deed of Trust and Security Instrument dated as of November 2, 2006 and

recorded in the Land Records of Fairfax County, Virginia, at Book 18890, Page 2167, which

recordable instrument is being assigned to Assignee pursuant to that certain Assignment of Deed

of Trust and Security Agreement dated as of even date herewith.

This Assignment shall be governed by and construed in accordance with the laws of the

Commonwealth of Virginia, without giving effect to its rules on the conflicts of law.

This Assignment shall become effective between Assignor and Assignee on the date first

above written.

This Assignment shall bind and inure to the benefit of Assignor and Assignee and theirrespective successors and assigns.

[signatures to follow]


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By: SPRINGFIELD SPE, INC.

a Delaware corporatioits Managing ..

IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be

duly executed as of the day and year first written above.

EXXONMOBIL OIL CORPORATION

A New York Corporation

By:

Name: D. 1. S lamack

Title: Agent and attorney in Fact

SPRINGFIELD PETROLEUM REALTY, LLCa Delaware limited liability company


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SPRINGFIELD PETROLEUM REALTY, LLC

SCHEDULE T

PMP A FRANCHISE AGREEMENTS

No Site Street Franchisee FA Start

FA End DateDate

20718 8526 Leesburg Pike Schmitz Service Inc 04/01/06 03/31/16

2 22690 6661 Arlington Blvd Edsall Park Auto Care, Inc. 10/29/07 10/31/10

3 25374 8861 Richmond Hwy Woodlawn Station Inc 04/01/09 03/31/12

4 25467 7336 Little River Turnpike Sindhu, Inc 01/14/08 01/31/11

5 25468 8715 Lee Highway CRS Oil, Inc 08/04/08 08/31/11

6 26581 5239 Rolling Rd Kings Park Auto Care Inc 04/01/08 03/31/11

7 27988 2230 New York Avenue NE B & H Enterprises Inc 06/01/09 05/31/12

NOTE: Site 20718 is a DOSS site.


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Exhibit C

Redacted Confidential Under Seal


26/37

Exhibit D

Redacted Confidential Under Seal


27/37

Exhibit E


28/37

I ip

Council ofthe DistrictofColumbiaMemorandum

HobertA.i,uias,Secretaryto theCouncil--' AnthonyM.Rachal,StatLDirector r ' November 16,1975- - V.ACoittee Reporto.1onBi .03..-333anaI-3,

"wor/LsSoS?:^s^Lfiot^rth'r'"^^ ^ > i=39of theTransDor)-,?fS f *^ ^^3== 20throughI have attached thesefor ?;..,? ^ "losing,reporto.1onB^i^f^o'" l-tlTlZ l^-^V.^ '^ '

o ^ vfrfr^L^^J^ ^^'.^-', counselValerie Barry, Legislative Support Coordinatoi

O


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V E A C o m m i t t e e R e p o r t N o . i on B i n KTCouncilOfthe District-^fC o l ^m b V ' ^ ^City HaU, 14th and E S tree ts, N.W. ZillfLFloor 638. ^ ^Gs^rnment Code 137-3806

rr,O

O

To Council Members ^^4.^'v' - - erry..M o _ , ,^ ^ W ^ ^Date , '^ ^ "' "' onmtiitfc ;September 10,1976^ ' ' j ^ ' Bill No. 1-333 -H..

anciBill Nn 1 00 RetailServiceq-=-"O .1-39.the..HetanSeJJic^'^W-J -of1976..,

-a-viJo^Li^-rijsi^r"

- - = thatt Sh?r 'd:-ot"p\Sf~iv'th1reSn^^L"|reco-A,B.C.D.E.P.G.H.I.J.K.

5AB5I_0P_C0NTENTSLegislative HistoryPurpose andEffect . . . .CommitteeHearin^^" '.' -..... '-....pp. 2-3committee Zln'^TntT ' ^Comm^At:J."J' ' PP-3^35Section by Sectionf^T-r....... PP- 35-39AsAmended. "Analysis of Bi n No"i" ;;r' ' "PP"4047Executive Comm^nt^l l ' - - . l t . .' ,,fiscal Impact. '-=.... ""'PP.Appendices A- G ' . . 'PP-

48-6061-62BillNo.1. 38 Ac;::'";*-.....""""""PP- ^^--64BillNo.1. 39'As Tn?'''?"^


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- 25 -

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condxtions. These provisions should prevent retail servicestation closings because of the inability of the petroleumcompanies to find qualified substitute dealers. Second,the Committee believes that testing and evaluation procedures,to the extent that these are actually undertaken,can be successfully undertaken at independently operatedretail service stations without much difficulty. Third,the Committee believes that the operation of new retail'service stations, high investment stations, and "non-fullservice retail service stations" can be successfullyhandled by independent operators through the establishmentof proper incentive or profit sharing programs. It shouldbe noted that there are very few high investment stationsxn the District of Columbia and that the establishmentof new retail service stations does not appear likely atthis time.

Title.I of Bill No. 1-333 also prohibits the discriminatory use of voluntary allowances and equipment rentalcharges and the discriminatory allocation of motor fuelsupplies during shortages. See Section 3-103of Bill No.1-333. These provisions are designed to promote adequateand assured product supplies, reasonableanc".riradictableretail service station and equipment rental charges, andadequateprofitabilityfor independently operated retailservice stations.O TITLE II

The primary purpose to be served by enactment ofTitle II of Bill No. 1-333 is to afford independentmotor fuel dealers operating under marketing agreementsincreasedlegal protection against arbitrary, unreasonable,and discriminatory terminations, cancellations, and nonrenewals of their marketing agreeinents by distributors,whether the underlying reason for such terminations,cancellations, or non-renewals is the distributor's desireto use the retail service station for his own account orsome other unjustified reason. Although a number of Federaland District of Columbia statutes,includinq'.The-ShermanAet.15 U S.C.1-7,asn jended (1890),The Clayton Act, 15U.S.C. 12-27,as amended (1890.),The FederalTradeCommissionAct,15 U.S.C. 41-51,as ametoded {i91'4),Theno^of Emergency Petroleum AllocatiSFTHFTTs' U.S.C. 751(1973),and the regulations promulgated pursuant thereto.


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with some legal protection,, the Committee believes that3 S ; a ^ S I a S - t e r . o t i S S L ^ r ^ J ^ r e 1 a r S i ^ . ^ ? - T ; P ?,

^^^~^ ^ ? h S ? ^ ? h e ^ f I t ^ ? L = L 1 ; ^ e ? f , r L ^ i j ^in=?,?a?n'\'^''governed by the generallawJofco^Jracts^efc ix'^Sd^-ji;-- ^.^^rri LSeih": io"%?ir

equity or are preempted by Federal or District of ri?viK

marketing agreement is essentially a Con?ra?t;rAS;si on"ILt l^T^^^^ ^standard form contractdraftedbythedistributor with very little or no input from the retail

cSSrfA.^? ^ ^ ^ ^^"^^^remedies^rovidedby generalcontractlaws,and to reserve a unilateralcontrL? ?iSito terminate, cancell, not renew, or modifya maJkitS?agreement on short notice. As aresu??? retJirdealerlare generally denied the traditionalpemgatJies andprotections afforded to independentbSsinSsmlnIn the event of an arbitrary, unreasonable, ordiscriminatory -termination,, cancellation,SJ nSn-^Lewalof a marketing agreement or other abuse of thedetaildealer by his distributor, the retail dealerLgeniJally


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only left with equitable remedies - the distribin-n,->,=effectively eschewed the retail dealer's leaJi^^^^,^^'''-"Âlthough some courts have allowedJilorâJioL of itTI agreements in order to implyacovenantfh? Jmarketingagreements could not betSrLnaSd SanceUed S nnf ^'

c i ^ p S y ? ' " '^ - - ^ -financiallyîwerful=pltro eu.In addition to basic fairness, there isanntho,

marketing agreement has^b^jrêLiâtil'^Ji^Jixr^^^;,iihnfiS^ compensation for his hard years ofworkinbuilding up a profitable business. ihedistribntn.may agree to repurchase the retail dealer'sstnJk^^Sequipment, often at a greatly reduced price ThLTf.

is notenS:ieT?o^\-:-s^:rs:fS^ ;jii-rfj-^'STL^Jr"='^^ " " " ^ Oistr*S f ? S S inthe flit'oiill Purpciesf ' - ^ ' ^ ^=^^^' ^


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(1)

(2)

to grant increased legal protect-ir.r,*-dealers which they are unlbtlt L^ '' ' ilthemselves withoutsJJerelvL^^"^^^""" ^ âting basicfreedomSrcSntrac??'"^^ ^^ ^

(3)(4)

M (5)

Oo

aSai-rL^SfeîiSJ^^s-ji- --^ unr::f;nabli'\S'disc?iSiat^' '^' -^^trary,cancellation;, andnSn-renSSals'ôf'mf ' ' ^ 'mentsandother abuseso J r S i lL ^ f ^^^ âgree-C? practices by distributors;and ^^^^^ ^ ^^ûnsavoryto enhance the independence ofretai-d..-the operation of theiri-ei-A-ii.I êaxersinreducing the controlf h S d t L K ' ' ' - ^ ^stations bythe retail prices andmJrkftinS'n^'^^f? ^ êxert onpendently operatedsta??n^ ^K^Practices on inde-keting agreLiStfndSnju^tifJ;r?h T '-m a t i o n , cancellatinn ^ 5 ^ threatsofterm-enhance falr'J^^\'^:st'Son,pe?i:Sn"1a'??' ^^^^^'of retail dealers totailor thii ' ^^ abilitythe neeas, preferences iSJ ?Perationstolocal o u st o Lr s ' ^ oonveniencesoftheir

îtleIIO f Bill HO . 1-333achieves these purposes b y' f g S n l a n 1 ^ p ^ \ ^ ? % L n f I S j - t ^ l S ^ i j - o r ^ a t i o n .

t i ^ dJ^lli ;rLl=to%\^ i? I> t^*-"-"--"-'"""a g r e e m e n t ( S e c t i o n 4 - 2 0 2 ^ ' ' ' = mark et in g' ?in^wal"^?'a'::LL\U"M?e"i.=^r^""""- - -a t i o n , cancelKtion L ^ o n r e S L S f ^ \ ' ' = ' ' ' * ^ -or more of the grounds s p e S i ? ? e r? i t f ^ "=and is executed in acco SJnc e^f t i = i*5^=^^"onreguirements ( Sec t i ons J ^ t o H b r ^ d K ^ I S ^ t l , ' ^

?ransl2? h i s m a r \ 1 t i n a ' ' ' ' - - 5 -by the diJiîSuôr'lsL^L'nTô's^r''"' * ^^''^ ^^


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29 ~

Ov.-r o

Edicts\ n d \ q L ' S n f J . ^^^--^-^3?it fî'' reasonable priceanJ t ^ ^^ ^^retail dealerthefull valueJf J ^?P ^ he''' ?- -^'- t%rbuMi,f--LJ,êgalcauseofaction

-iSir?fnd- - aSt LT S i S - i - f ts^:?L'\?.ô^^s1îs-i^-a^L1^n1%r1em;n^^-.f- -e

salesquotasor torejuijeth^^*. Peration,andpurchase certainPr:dL\^^ ,s\':tL %^\^^r^ *the groundthItit is' doSHi'i f ' ' challenged TitleITr.3-Lr-?L-- e^ es- ^ ^ ^ ^ ^ ^ ^-

F??buô-.rb-Ld S i r i e l - - - - ^fin-'f^-^^^^âtionsicompirwiJh th^ ^ ^^ ^heir

maliciously destroy theTopeJtv S 1 ^ . ^ ^ ' ^ ' wilfully orPr?he-?o - --41 ^ ^ ^ ^ ^

i ^ ^ ^ ' t fneSe%\-ry*S'me\:\\%^\ff ^ ' S:;fhe"'fLt-^^- g oonai t ions . Ld co n^JL:^\ i :L^Lrp^?e ?e^- :|3=' ^ ^


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_ 49 -

provided for in the marketing agreements, to extend orrenew the distributor - retail dealer relationship;

I ; - '

o,TO

oooo

marketing agreements which have a fixed term or expirationdate, but which do not expressly provide for renewal orextension; and marketing agreements which do not have afixed term or expiration date.

Subsection (f) defines the term "goodwill". itis noted thattEe~term "goodwill" is an amorphous legalconcept. This subsection does not provide a fixed monetarystandard, formula, or criterion for determing the value ofa retail dealer's "goodwill". This subsection, inconjunctionwith existing legal precedent s, provides guidance to theparties to a marketing agreement and , in the event that ajudicial action is commenced pursuant to Section4-206ofthis bill, to the courts in determining the value of aretail dealer's "goodwi ll". To the extent that this subsection is inconsistent with existing legal precedents, thissubsection shall supersede such legal preceden ts.

Subsection (g) defines the term "marketing agreement" ."Marketing agreements" may becomoosed of one or moreo^ thefollowing agreements : a retail service station lease, atrademark agreeme nt, and a motor fuel supply agreement. Aretail dealermay,athis option, treat a termination, cancella tion, or non-renewal of any component agreement as atermination, cancellation, or non-renewal of ti--wrole"marketing agreement".Subsection (h) defines the term "merchantable prod uct" .Subsection (i) defines the term "motor fuel".Subsection (j) defines the term "person".Subsection (k) defines the term "petroleum prod uct" .Subsection (1) defines the terms "refiner", "producer",and "manufacturer"." It is noted that these terms also incl ude,but are not limited to, any parent company, any entity controlledby a "refiner", "producer", or "manufacturer", any subsidiary,any affiliate, and any entity which controls a "refiner","producer" or "manufa cturer", as provided for in subsection

(i) of this s ectio n.Subsection (m) defines the term "retail deal er". Theterm "retail dealer", as it is defined in this subsection,is applicable only to Title II of this bill. it is notedthat the same,pers on may b a "retail deal er" in one rela-^ion-shxp and a "distributor" in another relationship.


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CERTIFICATE OF SERVICE

I hereby certify that on this 7th

day of October, 2013, a copy of the foregoing documents

was (i) electronically filed with the Clerk of the Court and served via the Courts electronic filing

system, and (ii) sent via U.S. mail to the following counsel of record:

Nicholas A. BushPublic Advocacy SectionOffice of the Attorney Generalfor the District of Columbia441 4

thStreet, N.W.

Washington, D.C. 20001

Counsel for Plaintiff, the District of Columbia

and

Alphonse M. AlfanoBassman, Mitchell & Alfano, Chartered

1707 L Street, N.W., Ste 560

Washington, D.C. 20036

Counsel for Defendants Capitol PetroleumGroup, Anacostia Realty, LLC, andSpringfield Petroleum Realty, LLC

/s/ Christina G. SarchioChristina G. Sarchio


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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

DISTRICT OF COLUMBIA,

Plaintiff,Civil Action No. 13-cv-005874B

v. Judge Craig ISCOE (Calendar 14)

EXXONMOBIL OIL CORP., et al. Next Court Date: 12/13/13

Defendants. Event: Initial Scheduling Conference

PROPOSED ORDER

UPON CONSIDERATION of Defendant ExxonMobil Oil Corp.s Motion to Dismiss,

pursuant to Superior Court Rule of Civil Procedure 12(b)(6), it is HEREBY

ORDERED that Defendants Motion is GRANTED. This action is HEREBY

DISMISSED WITHOUT PREJUDICE.

Dated: October 7, 2013

___________________________

Judge Craig Iscoe

Superior Court of the District of Columbia

Copies to:

Christina G. SarchioDavid F. Smutny

Ross C. Paolino

Orrick, Herrington & Sutcliffe LLP

1152 15th

St., N.W.Washington, DC 20005

Alphonse M. AlfanoBassman, Mitchell & Alfano,Chartered1707 L. Street, N.W., Ste. 560Washington, D.C. 20036

Nicholas A. BushCatherine JacksonPublic Advocacy SectionOffice of the Attorney Generalfor the District of Columbia441 4th Street, N.W.Washington, D.C. 20001

exxon mpa exhibits prop order(2)

Documents