Best Effort First Time, Llc et al v. Southside Oil, Llc

MOTION to Dismiss for Failure to State a Claim

D. Md.May 12, 2017

IN THE UNITED STATES DISTRICTCOURT FOR DISTRICT OF MARYLAND Northern Division __________________________________________ ) BEST EFFORT FIRST TIME, LLC, et.al., ) ) Plaintiffs, ) ) v. ) Case No. 1:17 cv 00825 (GLR) ) SOUTHSIDE OIL, LLC, ) ) Defendant. ) __________________________________________) DEFENDANT’S MOTION TO DISMISS Defendant Southside Oil, LLC (“Southside”), by counsel, and pursuant to Federal Rule of Civil Procedure 12(b)(6), moves to dismiss Counts II, III, IV, and V in Plaintiffs’ Amended Complaint for failure to state a claim upon which relief can be granted. Plaintiffs have not plausibly alleged that Southside breached the rebate provision of the parties’ Replacement Supply Contracts or engaged in price discrimination in violation of federal law. Further, the arbitration provision in the Replacement Supply Contracts is supported by adequate consideration and is plainly enforceable. Counts II, III, IV, and V against Southside thus fail as a matter of law. As such, and pursuant to the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), Plaintiffs’ factual allegations, even when accepted as true, are insufficient to state claims for relief that are plausible on their face. The reasons and authority for this motion are set forth with particularity in the accompanying Memorandum in Support, filed contemporaneously herewith. WHEREFORE, Southside respectfully requests that the Court: 1. Stay this matter and send the dispute, with the exception of Plaintiff Jamal & Luqman, Inc., to arbitration in accordance with the Replacement Supply Contract’s Case 1:17-cv-00825-GLR Document 20 Filed 05/12/17 Page 1 of 3 2 arbitration provision and Southside’s contemporaneously-filed Motion to Compel Arbitration; 2. Grant Southside’s Motion to Dismiss, with prejudice; 3. Dismiss Counts II, III, IV, and V of the Amended Complaint with prejudice; 4. Award Southside its costs; and 5. Award Southside such other and further relief as is proper. Respectfully submitted, SOUTHSIDE OIL, LLC /s/ Robert K. Cox _______ Robert K. Cox, Esq. (D. Md. Bar # 08752) bcox@williamsmullen.com Williams Mullen 8300 Greensboro Drive Suite 1100 McLean, VA 22102 T: (703) 760-5227 F: (703) 748-0244 Counsel for Defendant Southside Oil, LLC Case 1:17-cv-00825-GLR Document 20 Filed 05/12/17 Page 2 of 3 3 CERTIFICATE I HEREBY CERTIFY that on 11th day of May, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following: Alphonse M. Alfano, Esq. (D. Md. Bar # 13862) bma@bmalaw.net Bassman, Mitchell, Alfano & Leiter, Chtd. 1707 L Street, N.W., Suite 560 Washington, DC 20036 T: (202) 466-6502 F: (202) 331-7510 Counsel for Plaintiffs /s/ Robert K. Cox _______ Robert K. Cox, Esq. (D. Md. Bar # 08752) bcox@williamsmullen.com Williams Mullen 8300 Greensboro Drive Suite 1100 McLean, VA 22102 T: (703) 760-5227 F: (703) 748-0244 Counsel for Defendant Southside Oil, LLC Case 1:17-cv-00825-GLR Document 20 Filed 05/12/17 Page 3 of 3 IN THE UNITED STATES DISTRICTCOURT FOR DISTRICT OF MARYLAND Northern Division __________________________________________ ) BEST EFFORT FIRST TIME, LLC, et.al. ) ) Plaintiffs, ) ) v. ) Case No. 1:17 cv 00825 (GLR) ) SOUTHSIDE OIL, LLC, ) ) Defendant. ) __________________________________________) DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Defendant Southside Oil, LLC (“Southside”), by counsel, and pursuant to Fed. R. Civ. P. 12(b)(6), states as follows for its Memorandum in Support of Motion to Dismiss the Amended Complaint: I. INTRODUCTION The ten (10) Plaintiffs operate retail service stations in Maryland. Plaintiffs previously leased their stations from ExxonMobil (“Exxon”) and, pursuant to Existing Supply Agreements with Exxon, purchased all of their gasoline requirements directly from Exxon. In 2010 Southside acquired the service stations from Exxon and took assignments of the associated leases and Existing Supply Contracts with Plaintiffs. Plaintiffs then sought to renegotiate their Existing Supply Contracts on more favorable terms and to purchase the service stations from Southside. Southside voluntarily offered Plaintiffs the right to purchase their respective service stations – a right that previously did not exist under law or pursuant to the Existing Supply Contracts or real estate leases – in exchange for Plaintiffs agreeing to enter into fifteen or twenty-year supply agreements with Southside pursuant to which Plaintiffs would purchase all of their branded motor fuel for resale to consumers at their service stations. Plaintiffs were not required to execute these Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 1 of 24 2 Replacement Supply Contracts. Plaintiffs were free to continue to purchase Exxon-branded gasoline from Southside under their Existing Supply Contracts and to occupy their stations under their existing leases. Plaintiffs concede that the terms of the Replacement Supply Contracts – including the pricing and arbitration provisions – were the product of extensive, arms-length negotiations. Indeed, Plaintiffs and Southside expressly agreed that the Replacement Supply Contracts’ provisions were fair, mutually satisfactory, and reasonable. Plaintiffs’ Amended Complaint seeks a declaration that Southside has breached the terms of the Replacement Supply Contracts’ pricing and rebate provisions (Counts I and II), engaged in price discrimination in violation of federal law (Count III), and requests that the Contracts’ arbitration provisions be deemed void and unenforceable (Counts IV and V). Plaintiffs’ claims against Southside in Counts II, III, IV, and V fail for several reasons: (1) Their breach of the Replacement Supply Contracts’ rebate provisions (Count II) is plainly time barred. Performance under the contracts commenced no later than 2011, and Plaintiffs contend that Southside never implemented the required rebate program. The Amended Complaint, filed more than six years after the purported breach occurred, simply comes too late. (2) Count III fails to state a claim under the Robinson-Patman Act because the Amended Complaint’s conclusory allegations fail to support an inference that Southside’s conduct substantially lessened competition in a particularized market. Specifically, Plaintiffs fail to plead that (i) Southside discriminated in the prices charged to an identified competing buyer and a specific Plaintiff, or (ii) the alleged discrimination had a prohibited effect on competition. (3) Counts IV and V also fail as a matter of law because the Replacement Supply Contracts’ arbitration provisions are clearly supported by adequate consideration. Further, Plaintiffs’ agreement to arbitrate certain disputes does not run afoul of the Petroleum Marketing Practices Act because, among other reasons, that statute does not prohibit franchisees from voluntarily contracting to waive certain rights – which is exactly what Plaintiffs did in the contracts at issue in this case. Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 2 of 24 3 For all of these reasons, set forth in more detail below, Southside respectfully requests that the Court grant its Motion and dismiss Plaintiffs’ Amended Complaint with prejudice.1 II. MATERIAL FACTS2 Southside is a wholesale distributor of Exxon-branded motor fuel products. (Am. Compl. ¶ 4.) Each of the ten (10) Plaintiffs operates retail service stations throughout Maryland and purchases Exxon-branded motor fuel from Southside. (Id. ¶¶ 3(a)-(j), 4.) A. The Replacement Supply Contracts and the “Rack Plus” Pricing Formula. Prior to 2010, Exxon owned each of the above-referenced service stations and leased them to the Plaintiffs. Pursuant to a PMPA Dealer Franchise Agreement (the “Existing Supply Contract”), Plaintiffs purchased their motor fuel directly from Exxon for retail sale to the Plaintiffs’ customers. (Id. ¶ 5.) In 2010 Exxon sold the service stations and assigned the Existing Supply Contracts to Southside, thereby allowing Southside to own the stations and serve as the Plaintiffs’ landlord and supplier of motor fuel. (Id. ¶ 6.) Prior to Exxon’s sale of the service stations to Southside, sixty-seven franchisees (including Plaintiffs) instituted suit against Exxon and certain Exxon affiliates seeking an injunction preventing the sale of the service stations to Southside. See Duncan Services, Inc. v. ExxonMobil Oil, Corp., Case No. 8:09cv02486 (ECF #3, D. Md. Sept. 28, 2009) (Amended Complaint filed). The lawsuit was dismissed with prejudice. See Duncan Services, Inc. v. ExxonMobil Oil, Corp., 668 F. Supp. 2d 719 (D. Md. 2009) (granting defendants’ partial motions to dismiss and denying plaintiffs’ request for a preliminary injunction); Duncan Services, Inc. v. ExxonMobil Oil, Corp., 722 F. Supp. 2d 640 (D. Md. 2010) (denying plaintiffs’ 1 Southside is also filing a Motion to Compel Arbitration contemporaneously with its Motion to Dismiss and that Motion is expressly incorporated herein by reference. 2 The Material Facts are derived from the Complaint’s allegations and are accepted as true only for purposes of Southside’s Motion to Dismiss. Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 3 of 24 4 motion for reconsideration and granting defendants’ additional motions to dismiss); id., No. 8:09cv02486 (D. Md. July 12, 2010) (ECF # 72, order closing case).3 Thus, Plaintiffs incorrectly assert the lawsuit was “settled,” (Am. Compl. ¶ 8), when in fact the lawsuit was dismissed by a federal court. Rather than a “settlement” or “settlement agreement,” as Plaintiffs contend, the parties executed an agreement for the conditional sale of the service stations in exchange for consideration that included the Replacement Supply Contracts. The terms of the agreements were embodied in two letters of intent, one handwritten (titled “Agreement in Principle,” Ex. 1) and the other a letter agreement dated February 12, 2010 (Ex. 2) (collectively, the “Letters of Intent,” both filed under seal.)4 It is these Letters of Intent that the Plaintiffs refer to and rely on as the “settlement agreements” throughout their Amended Complaint. For years prior, each Plaintiff had leased their service stations from Exxon and purchased all of their motor fuel needs from Exxon pursuant to the Existing Supply Contracts. (Am. Compl. ¶ 5.) The Letters of Intent served to accommodate the Plaintiffs’ desire to change their then-existing contractual circumstances. It provided Plaintiffs with the opportunity to realize their goal of owning, rather than renting, their service stations and to negotiate terms of a replacement motor fuel supply contract that they believed to be more 3 The Court may judicially notice the prior federal court pleadings and opinions because they are matters of public record. See Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). 4 Southside respectfully requests the Court seal the Letters of Intent because each contains a confidentiality clause. Public disclosure of the Letters of Intent would prejudice the parties by revealing sensitive, proprietary, and competitive business information. Because the Amended Complaint repeatedly references and relies upon these Letters of Intent (terming them “settlement agreements”), they may be considered when analyzing Southside’s Motion to Dismiss. See Coin Automatic Laundry Equip. Co. v. Hampton Plaza, LLLP, 2017 WL 633471, at *1 n.2 (D. Md. Feb. 16, 2017) (court may consider documents referred to and relied upon in the complaint “even if the documents are not attached as exhibits.”) (citation omitted). Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 4 of 24 5 reasonable than their Existing Supply Contract with Exxon. (E.g., Id. ¶ 11 (noting Plaintiffs’ desire to excise from the Existing Supply Contracts an “open-price term” formula).) To this end, and under the Letters of Intent, Southside voluntarily offered Plaintiffs the right to purchase their respective service stations from Southside in exchange for Plaintiffs agreeing to purchase their motor fuel needs from Southside for fifteen or twenty-year terms (the “Replacement Supply Contract”), including a minimum number of gallons of Exxon-branded fuel for each contract year (the “Minimum Volume Requirement”). (Id. ¶ 9 & Exs. 1 and 2.) If a Plaintiff opted not to purchase the service station it occupied, it could continue to lease its station from Southside in accordance with the Existing Supply Contract and which, per the terms of the Letters of Intent, were to be automatically extended on their existing terms and conditions with an additional ten-year renewal available. (Am. Compl. ¶ 19; see also Ex. 1 at 4, § 13; Ex. 2 at 9, §§ 9-10.) Plaintiffs did not have to enter into the Letters of Intent or the Replacement Supply Contracts to keep their existing franchise agreements, and thereby continue to lease and occupy their service stations and purchase Exxon-branded gasoline under the terms of the Existing Supply Agreements. Nothing in the Letters of Intent or the Replacement Supply Contracts suggests that the agreements were anything less than the product of voluntary, arms-length, and fully negotiated transactions. The Replacement Supply Contracts contain a “rack plus” pricing formula. According to Plaintiffs, “rack price” is an industry term referring to the per gallon price charged by refiners (like Exxon) to distributors (like Southside) when distributors purchase gasoline in full transport loads at the terminal rack. (Am. Compl. ¶ 14.) Plaintiffs allege that “[t]he rack price represents the distributor’s cost of the product (subject to a discount usually received for prompt payment).” (Id.) Under the Letters of Intent, the parties agreed that Southside would add a cents-per-gallon mark- Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 5 of 24 6 up to the rack price of between 1.5 cents and 6.5 cents per gallon (the “Cents-Per-Gallon Amount”), depending on the particular Replacement Supply Contract reached between Southside and a particular Plaintiff. (Id. ¶¶ 15, 17, 26; Ex. 2 at 7, § 5.) Pursuant to the Letters of Intent, the parties also agreed that (i) applicable federal and state excise taxes and environmental fees and (ii) Southside’s cost of transporting the fuel to the service stations would be added to the per gallon rack price. (Am. Compl. ¶ 18.) Plaintiffs contend the “rack plus” pricing formula was incorporated into the Letters of Intent. (Id. ¶ 19.) With the exception of the Cents-Per-Gallon Amount and the Minimum Volume Requirement, which varied from Plaintiff to Plaintiff, Plaintiffs contend the terms of each Replacement Supply Contract were the same. (Id. ¶¶ 27, 36.) Thus, the Replacement Supply Contract’s pricing formula for one of the Plaintiffs reads as follows: Face Page PRICE. For each grade of gasoline sold by [Southside] to [Plaintiff] under this Agreement, [Southside’s] price to [Plaintiff] shall be 4.50 cents per gallon (the “Cents-Per-Gallon Amount”) over “Rack” as that term is defined in this Agreement. * * * Terms and Conditions 7. PRICE: (a) [Plaintiff] agrees to pay [Southside] for products at [Southside’s] established price at the time and place of delivery for the particular products involved. For each grade of gasoline . . . [Southside’s] established price shall be the “Cents-Per-Gallon Amount” specified on the Face Page over “Rack” as defined in the following sentence. For purposes of this Section, the term “Rack” shall mean: The gross rack price of [Southside’s] supplier (without any discount) at the applicable terminal where the product is loaded into the transport vehicles of [Southside] or its contract carrier, plus [Southside’s] or its carrier’s transportation and freight charges and surcharges (if any) for delivery to [Plaintiff’s] premises, plus applicable federal, state and local taxes, loading fees or charges, and environmental or similar fees. Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 6 of 24 7 (Id. ¶¶ 33, 35 & Ex. 3 at 1, 6-7.)5 Plaintiffs contend that, beginning in 2015, Southside began charging Plaintiffs considerably more than the Cents-Per-Gallon markup provided for in the Replacement Supply Contracts. (Am. Compl. ¶ 38.) The reason for this increase, Plaintiffs say, is because Exxon began providing Southside with a discount on the price per gallon for fuel that was significantly lower than the price Exxon charged to other distributors that purchased Exxon branded fuel at the same terminal rack. (Id. ¶ 39.) Southside took the position that Exxon’s prices charged to the other distributors was the “rack price” instead of the discounted price Exxon was providing to Southside. (Id.) This meant that, in some cases, Southside purportedly charged Plaintiffs “as much as twelve or thirteen cents above the price [per gallon] Exxon charged Southside.” (Id.) At the same time, Plaintiffs learned that Southside allegedly charged other, unnamed Maryland Exxon dealers – who purchased motor fuel under completely different open-price term contracts – considerably less than the prices Southside charged Plaintiffs “for the very same products, at the very same time.” (Id. ¶ 40.) Plaintiffs contend these price disparities adversely impacted their ability to compete with lower-priced retailers in the same market area, the latter 5 Because the Amended Complaint repeatedly references and relies upon the Replacement Supply Contracts, they may be considered when analyzing Southside’s Motion to Dismiss. See Coin, 2017 WL 633471, at *1 n.2. For the sake of brevity, Southside attaches the lead Plaintiff’s Replacement Supply Contract to this Motion. However, contrary to Plaintiffs’ representation in the Amended Complaint, the terms of each Replacement Supply Contract are not the same. For this reason, Southside also attaches the Replacement Supply Contract of Plaintiff Jamal & Luqman, Inc. (Ex. 4), which clearly contains terms different from the other Plaintiffs’ Replacement Supply Contracts. Of course, the terms of the Replacement Supply Contracts control over Plaintiffs’ allegations to the contrary. See Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (court need not “accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.”). Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 7 of 24 8 apparently including the entire state of Maryland. (Id. ¶¶ 44, 61-62.) Specifically, Plaintiffs claim they had to raise their retail prices above a competitive level, which resulted in Plaintiffs losing business to their lower-priced competitors, “including the other Maryland Exxon dealers.” (Id. ¶ 45.) B. The Rebate Program. The Replacement Supply Contracts also required Southside to establish a volume rebate program for each Plaintiff. (Id. ¶ 23.) The specific rebate provision provides: [Southside] will establish a program under which it will provide [Plaintiff] with an opportunity to earn and receive rebates during the term of this Agreement. The standards and procedures pertaining to such rebates will be determined by [Southside] from time to time and communicated to [Plaintiff] as appropriate. (Id. ¶ 34 & Ex. 3 at 5, §4(e).) According to Plaintiffs, any purported entitlement to a rebate would only be triggered if the volume of gas sold by each Plaintiff exceeded a targeted volume of gas agreed to by the parties. (Am. Compl. ¶ 24.) Plaintiffs claim that Southside never instituted the rebate program “for most of the Plaintiffs.” (Id. ¶¶ 47, 55.) Plaintiffs concede that Southside provided Plaintiff HMA, Inc. with the opportunity to earn and receive rebates during the term of the Replacement Supply Contract. (Id. ¶ 55.) But it is also clear that Plaintiff Jamal & Luqman, Inc. (“J&L”) was provided with the opportunity to earn rebates. (See Ex. 4, Face Page and pg. 7, § 7(b).) The rebate provision in the J&L Replacement Supply Contract was only available to J&L “[d]uring the first year of the term of this Agreement.” (Id.) C. The Arbitration Provision. Each Replacement Supply Contract contained an identical arbitration provision (save the J&L Contract, which lacks such a provision, see Ex. 4). The parties agreed that “[a]ny monetary claim arising out of or relating to this Agreement, or any breach thereof, shall be submitted to Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 8 of 24 9 arbitration before a single arbitrator . . . in accordance with the rules of the American Arbitration Association[.]” (Am. Compl. ¶ 30 & Ex. 3 at 21.) The parties also agreed, however, that each could seek a temporary injunction in a judicial forum to prevent conduct that would “cause loss or damage.” (Id.) The arbitration provision also gives Southside the right to seek an injunction in court to compel a Plaintiff to comply with its obligations under the Replacement Supply Contract or to protect Southside’s trademark or other property rights. (Id.) The provision further permits Southside to join a monetary claim with this requested injunctive relief so long as the monetary claim “arise[s] out of the acts or omissions to act giving rise to the action for injunctive or provisional relief.” (Id.) III. STANDARD OF REVIEW To survive Southside’s Motion to Dismiss, Plaintiffs’ Amended Complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiffs must provide “more than labels and conclusions” because “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, the legal framework of the Amended Complaint must be supported by factual allegations that “raise a right to relief above the speculative level.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. The plausibility standard requires more than a showing of “a sheer possibility that a defendant has acted unlawfully.” Id. In other words, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 9 of 24 10 IV. ARGUMENT Plaintiffs assert five declaratory judgment claims: Count I, for breach of the Replacement Supply Contracts’ pricing provision; Count II, for breach of the Replacement Supply Contracts’ rebate provision; Count III, for price discrimination under the Robinson-Patman Act, 15 U.S.C. § 13; Count IV, for lack of consideration for the Replacement Supply Contracts’ arbitration provision; and Count V, contending the arbitration provision is void or voidable under Maryland law. Southside’s Motion addresses claims under Counts II, III, IV, and V of the Amended Complaint. A. Choice of Law. Plaintiffs assume that Maryland law governs their contract and arbitration claims. (See, e.g., Am. Compl. ¶¶ 72-75 and 81 (suggesting the arbitration provisions are unenforceable under Maryland law).) It is true that Maryland law controls the interpretation of the J&L Replacement Supply Contract. (See Ex. 4 at 21-22, § 36.) The remaining Replacement Supply Contracts, however, lack a choice of law provision, so Maryland’s choice of law rules apply to those agreements. “Maryland applies the doctrine of lex loci contractus, under which the law of the jurisdiction where the contract was made controls its validity and construction. For choice-of-law purposes, a contract is made where the last act necessary to make the contract binding occurs.” Baker’s Exp., LLC v. Arrowpoint Capital Corp., 2012 WL 4370265, at *9 (D. Md. Sept. 20, 2012) (internal quotation marks and citations omitted). It is unclear from the allegations in the Amended Complaint, or from the language of the Replacement Supply Contracts, where the contracts were executed (Southside was a Virginia limited liability company with its corporate offices then located in Chester, Virginia and the Plaintiffs are all Maryland or Virginia entities who operate Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 10 of 24 11 service stations in Maryland). Thus, Plaintiffs’ state law claims in Counts II, IV and V will be analyzed under both Maryland and Virginia substantive law. B. Plaintiffs Rebate Provision Contract Claim (Count II) is Time Barred. The Replacement Supply Contracts were executed “[i]n early 2010.” (Am. Compl. ¶ 36.) Each agreement required Southside to establish a rebate program for the Plaintiffs, providing them with an opportunity “to earn and receive rebates during the term of this Agreement.” (Id. ¶¶ 23, 34.) Plaintiffs argue that Southside never instituted the rebate program for all but one of the Plaintiffs. (Id. ¶¶ 47, 55.)6 Plaintiffs’ rebate provision contract claim is time barred under either Maryland or Virginia law. In both states, the statute of limitations applicable to a breach of contract action in connection the sale of goods is four years and runs from the date “when the breach occurs.” Md. Code, Com. Law § 2-725; Va. Code § 8.2-725. “[T]here is no discovery rule under” the UCC’s limitations provision. Washington Freightliner, Inc. v. Shantytown Pier, Inc., 719 A.2d 541, 544 (Md. 1998). The Replacement Supply Contracts were executed in “early 2010,” and the parties’ obligations commenced shortly thereafter. (See Ex. 3 at 1 (term of Supply Contract commenced in August 2010).) Thus, any alleged breach occurred – and Plaintiffs certainly knew of Southside’s purported failure to institute a rebate program – no later than the fall of 2010 (at the latest). Plaintiffs’ Amended Complaint, filed in 2017, simply comes too late. Because the face of the Amended Complaint makes clear that Plaintiffs’ rebate provision claim is barred by the four-year statute of 6 Any purported breach of contract claim relating to the J&L Replacement Supply Contract’s rebate provision fails as a matter of law. That Contract plainly contains a mechanism whereby J&L could earn rebates, and terminated by its own terms in November 2013. Thus, the clear language of the J&L Contract refutes Plaintiffs’ assertion that Southside did not “provide [J&L] with an opportunity to earn and receive rebates during the term of the Supply Contract.” (Am. Compl. ¶ 55.) Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 11 of 24 12 limitations, see Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007), Count II must be dismissed, with prejudice. C. Plaintiffs Fail to State a Claim Under the Robinson-Patman Act (Count III). In Count III, Plaintiffs allege that “Southside violated the Robinson-Patman Act by contemporaneously selling products of like grade and quality at different prices to similarly situated dealers[.]” (Am. Compl. ¶ 60.) Plaintiffs then, en masse, state a series of conclusory allegations that utterly fail to support an inference that Southside’s conduct substantially lessened competition in a particularized market. Plaintiffs’ pleading deficiency accordingly requires dismissal of Count III. The Robinson-Patman Act of 1936 (the “RPA”), codified as part of the Clayton Act at 15 U.S.C. § 13, prohibits anticompetitive price discrimination. The Act provides, in relevant part: It shall be unlawful for any person engaged in commerce . . . to discriminate in price between different purchasers of commodities of like grade and quality, . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . . .” 15 U.S.C. § 13(a). To establish a claim under the RPA, each Plaintiff must prove the following four elements: (1) that Southside’s sales of gasoline to that Plaintiff was made in interstate commerce; (2) that the gasoline sold to each Plaintiff was of the same grade and quality as that sold to an identified competitor; (3) that Southside discriminated in price as between an identified competing buyer and the particular Plaintiff; and (4) that the discrimination had a prohibited effect on competition. Texaco Inc. v. Hasbrouck, 496 U.S. 543, 556 (1990); Loren Data Corp. v. GXS, Inc., 2011 WL 3511003, at *13 (D. Md. Aug. 9, 2011). Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 12 of 24 13 Because there are ten Plaintiffs, to state a claim under the RPA each must make individual allegations for the Court to assess the viability of any given Plaintiff's claim. See Chawla v. Shell Oil Co., 75 F. Supp. 2d 626, 654 (S.D. Tex. 1999). 1. Plaintiffs have failed to plead that Southside discriminated in the prices charged to an identified competing buyer and a specific Plaintiff. To state a claim, a Plaintiff must plead facts sufficient to establish that Southside discriminated in price as between an identified competing buyer and a specific Plaintiff. Hasbrouck, 496 U.S. at 556. To satisfy this element, each Plaintiff must allege “the identity and location of the particular . . . retail station(s) that received an allegedly unlawful favorable price, the approximate price that [competing station] received (if known), and the approximate time period of the allegedly unlawful favorable treatment [.]” Chawla, 75 F. Supp. 2d at 654. Each Plaintiff must also allege “the geographic area in which the specific Plaintiff competes with each . . . other station in issue as to that Plaintiff[.]” Id. Here, Plaintiffs state collectively that “Southside sold Exxon branded gasoline and diesel fuel to certain Maryland Exxon dealers who are in actual competition with the [P]laintiffs (the ‘Other Dealers’) at the same time Southside was selling identical products to [P]laintiffs under the [Replacement] Supply Contracts.” (Am. Compl. ¶ 61.) They further allege that “Plaintiffs and the Other Dealers compete with one another in select geographic markets in the State of Maryland.” (Id.) No individual Plaintiff identifies the specific retail station with which it competes that received a favorable price for Exxon branded gasoline and diesel fuel. It is entirely insufficient for the Plaintiffs to jointly make a conclusory and vague statement that Southside sold Exxon-branded gasoline and diesel fuel to Maryland retail service stations with which they were in competition. See Aggarwal v. Sikka, 2012 WL 12870349, at *6 (E.D. Va. June 12, 2012) (dismissing RPA Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 13 of 24 14 claim where plaintiffs did “not identify a single favored purchaser with whom they are in direct competition.”). It is also insufficient to make a joint conclusory statement that the Plaintiffs and their competitors compete with one another in “select geographic markets in the State of Maryland.” Again, each Plaintiff must allege facts with specificity showing that Southside discriminated in price as between itself and a specific identified competing buyer. This further requires specific allegations regarding the geographic area in which each Plaintiff competes, particularly when it concerns a state with an approximate size of more than 12,000 square miles. See M & M Medical Supplies & Service v. Pleasant Valley Hosp., 981 F.2d 160, 170 (4th Cir. 1993) (geographic market is defined as area where suppliers “effectively compete and to which their customers could practicably turn for alternative sources of such products.”); Bailey v. Allgas, Inc., 284 F.3d 1237, 1249 (11th Cir. 2002) (“The law is clear . . . that a geographic market cannot be drawn simply to coincide with the market area of a specific company[,]” and is, instead, the “area of effective competition in which competitors generally are willing to compete for the consumer potential.”) (citation omitted). The Amended Complaint should be dismissed because of Plaintiff’s failure to plead these necessary facts. 2. Plaintiffs have failed to plead that the alleged discrimination had a prohibited effect on competition. The primary purpose of the Robinson-Patman Act’s prohibition against discriminatory pricing is to protect competition generally, not specific competitors. Black Gold, Ltd. v. Rockwool Indus., Inc., 729 F.2d 676, 680 (10th Cir. 1984); see also Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164, 168 (2006) (stating that “this Court would resist interpretation geared more to the protection of existing competitors than to the stimulation of competition.”). To successfully plead a claim under the RPA, a plaintiff must accordingly plead Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 14 of 24 15 more than an “injury to a specific competitor” and show that the discrimination may “substantially lessen competition.” Henry v. Chloride, Inc., 809 F.2d 1334, 1340 (8th Cir. 1987). Price discrimination claims generally fall into three categories: primary line, secondary line, and tertiary line. Volvo Trucks, 546 U.S. at 176; Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 513, 521–22 & n.2 (7th Cir. 2011). “Primary-line cases entail conduct—most conspicuously, predatory pricing—that injures competition at the level of the discriminating seller and its direct competitors.” Volvo Trucks, 546 U.S. at 176 (citations omitted). Secondary-line cases involve price discrimination that injures competition among the seller’s “favored” and “disfavored” purchasers. Id. at 176 (citations omitted). The “hallmark” of a secondary-line price discrimination injury “is the diversion of sales or profits from a disfavored purchaser to a favored purchaser.” Id. at 177. “Tertiary-line cases involve injury to competition at the level of the purchaser’s customers.” Id. at 176. The Amended Complaint attempts to plead a secondary-line RPA violation where Southside is the allegedly discriminatory seller and Plaintiffs are the purportedly disfavored purchasers. “As a prerequisite to establishing ‘competitive injury’ in a secondary-line price discrimination case, a plaintiff must prove that ‘it was engaged in actual competition with the favored purchaser(s) as of the time of the price differential.’” Chawla, 75 F. Supp. 2d at 650 (quoting George Haug Co. v. Rolls Royce Motor Cars, Inc., 148 F.3d 136, 141 (2d Cir. 1998)). A plaintiff must also allege facts that “demonstrate a reasonable possibility that competition has been harmed as a result of the price differential.” Id. (quotation marks and citation omitted). The Supreme Court has further explained “that a permissible inference of competitive injury may arise from evidence that a favored competitor received a significant price reduction over a substantial period of time.” Volvo Trucks, 546 U.S. at 177. Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 15 of 24 16 To plead an injury to competition, each Plaintiff must allege that it was in actual competition with a retail gas station that received a significant price reduction over a substantial period of time. But, as explained supra, no Plaintiff has alleged with the requisite specificity the name of any competing retail station. Stated differently, competitive injury cannot be shown in a secondary-line case absent actual competition with the favored purchaser. Id. (“Absent actual competition with a favored Volvo dealer, however, Reeder cannot establish the competitive injury required under the Act.”).Accordingly, Southside cannot be held liable for secondary-line price discrimination under the RPA in the absence of allegations that it discriminated between dealers competing to resell its product to the same retail customers. See id. at 169. Such facts are not alleged in the Amended Complaint. Also, and more generally, no Plaintiff has stated the specific geographical area in which it competes. It is implausible for ten small gasoline and diesel fuel stations to jointly define the relevant market in which they compete as the entire state of Maryland. Cf. Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327 (1961) (stating that an antitrust plaintiff must define the relevant geographic area by “careful selection of the market area in which the seller operates, and to which the purchaser can practically turn for supplies.”). Without this vital information, it is impossible to discern whether any Plaintiff has suffered a competitive injury for purposes of the RPA. Chawla, 75 F. Supp. 2d at 654. The Robinson–Patman Act does “not ban all price differences charged to different purchasers of commodities of like grade and quality, rather, the Act proscribes price discrimination only to the extent that it threatens to injure competition.” Volvo Trucks, 546 U.S. at 176. Indeed, “the mechanism by which a firm engages in predatory pricing—lowering prices—is the same mechanism by which a firm stimulates competition; because cutting prices in order to increase Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 16 of 24 17 business often is the very essence of competition[,] mistaken inferences in [antitrust cases] are especially costly, because they chill the very conduct the antitrust laws are designed to protect.” Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 122 n.17 (1986) (citations, internal quotation marks and ellipses omitted). And, with respect to antitrust pleadings, “a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.” Twombly, 550 U.S. at 558. For these reasons, to state a claim under the RPA, each Plaintiff was required to plead with specificity the following: (i) the name and location of the source of the particular Plaintiff's Exxon gasoline; (ii) the identity and location of the particular retail station that received an allegedly unlawful favorable price, the approximate price that station received (if known), and the approximate time period of the allegedly unlawful favorable treatment, and (iv) the geographic area in which the specific Plaintiff competes with each retail fuel station in issue as to that Plaintiff. Chawla, 75 F. Supp. 2d at 654. This Plaintiffs have not done. Accordingly, Plaintiffs’ RPA claim must be dismissed. D. The Arbitration Provision is Valid and Possesses Consideration (Count IV). The Replacement Supply Contract’s arbitration provision generally requires “[a]ny monetary claim arising out of or relating to this Agreement, or any breach thereof,” to be submitted to arbitration before a single arbitrator “in accordance with the rules of the American Arbitration Association[.]” (Am. Compl. ¶ 30 & Ex. 3 at 21.) The provision also authorizes Southside to pursue an action in court for injunctive or other provisional relief . . . to compel [a Plaintiff] to comply with its obligations [under the Replacement Supply Contract] or to protect [Southside’s] trademark rights or obligations or other property rights of [Southside]. In addition, nothing contained herein shall be construed to limit or to preclude [Southside] from joining with any action for injunctive or provisional relief all monetary claims that Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 17 of 24 18 [Southside] may have against [a Plaintiff] which arise out of the acts or omissions to act giving rise to the action for injunctive or provisional relief. (Id.) In Count IV, Plaintiffs contend the arbitration provision is unenforceable because “Southside’s promise to arbitrate monetary disputes is illusory and cannot serve as consideration for each plaintiff’s promise to arbitrate monetary disputes.” (Am. Compl. ¶ 72.)7 The issue of whether an arbitration agreement exists between the parties,” i.e., whether they agreed to arbitrate a particular matter, “is a question of state contract law.” Senior Mgmt., Inc. v. Capps, 240 F. App’x 550, 552 (4th Cir. 2007) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). Because there is no mutuality requirement for an arbitration provision under Virginia law,8 the question of whether the arbitration provision itself is supported by consideration is analyzed only under Maryland law. In Maryland, an arbitration provision must be supported by consideration independent of the contract underlying it, namely, mutual obligation. See Cheek v. United Healthcare of Mid-Atl., Inc., 835 A.2d 656, 667-69 (Md. 2003). Importantly, however, “[m]utuality . . . does not require an exactly even exchange of identical rights and obligations between the two contracting parties before a contract will be deemed valid. Therefore, there need not exist an identical mutuality of remedy between [Plaintiffs] and [Southside] before the arbitration agreement will be deemed valid.” Walther v. Sovereign Bank, 872 A.2d 735, 748 (Md. 2005) (internal citations omitted). 7 The J&L Replacement Supply Contract lacks an arbitration provision. (See Ex. 4.) 8 See McNeil v. Haley S., Inc., 2010 WL 3670547, at *6 (E.D. Va. Sept. 13, 2010) (“[C]ourts have held that a mutual promise to arbitrate itself constitutes sufficient consideration for an arbitration agreement.”); Bramow v. Toll VA, LP, 67 Va. Cir. 56, 60-61 (2005) (upholding arbitration provision that required plaintiffs, as buyers, to submit disputes to arbitration while defendant, as seller, had certain judicial remedies if the buyers defaulted); Restatement (Second) of Contracts § 79 (1979) (“if the requirement of consideration is met, there is no additional requirement of . . . (c) mutuality of obligation.”) Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 18 of 24 19 Here, Southside’s promise to arbitrate monetary disputes is not “illusory,” as Plaintiffs contend. Instead, it is abundantly clear that if either party wants to pursue a claim seeking solely monetary relief, both parties must arbitrate that claim. Both parties are also equally free to seek temporary injunctive relief in a judicial forum. Southside may only pursue monetary damages in court in a limited circumstance – where the damages are expressly tied to a simultaneous action for “injunctive or provisional relief . . . to compel [Plaintiff] to comply with its obligations” under the Replacement Supply Contract or to protect Southside’s property rights. (Ex. 3 at 22.) This carve out does not render the Replacement Supply Contract’s arbitration provision unenforceable. See Walther, 872 A.2d at 748 (“We do not find that the exceptions to the arbitration agreement, which allow Sovereign Bank to litigate certain specific claims instead of having to submit them to arbitration, are so unfairly oppressive as to make the agreement unconscionable.”); Taylor v. Santander Consumer USA, Inc., 2015 WL 5178018, at *7 (D. Md. Sept. 3, 2015) (“Both Plaintiffs and Defendant unambiguously gave up a right to bring suits in court for at least some disputes. Defendant’s obligation to arbitrate, although it contains an exception, is not illusory, as Defendant is bound to arbitration for any dispute other than one to collect money owed for the vehicles.” (emphasis added)). Courts “will not inquire into the adequacy of the value exacted for the promise so long as it has some value.” Walther, 872 A.2d at 748 (citation omitted). The consideration supporting the arbitration provision here possesses more than enough value. Southside is bound to arbitrate certain disputes – here, claims seeking purely monetary relief – just as are the Plaintiffs, and both Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 19 of 24 20 parties cannot pursue such disputes in court. The parties may also seek provisional relief in a judicial forum. The arbitration provision is plainly supported by adequate consideration.9 E. The Replacement Supply Contracts’ Arbitration Provisions are Enforceable and Do Not Violate the PMPA (Count V). In Count V, Plaintiffs contend that the Replacement Supply Contracts’ arbitration provisions are unenforceable because they “required” the Plaintiffs to waive their right to a jury trial and the right to pursue monetary claims in violation of the Petroleum Marketing Practices Act (“PMPA”), 15 U.S.C. § 2801 et seq. (Am. Compl. ¶¶ 77-81.) This argument fails for three reasons. First, Plaintiffs cannot seek relief under the PMPA. The PMPA provides that “[n]o franchisor shall require, as a condition of entering into or renewing the franchise relationship, a franchisee to release or waive -- (A) any right that the franchisee has under [subchapter I of the PMPA] or other Federal law; or (B) any right that the franchisee may have under any valid and applicable State law.” 15 U.S.C. § 2805(f)(1). “[W]hile the text of § 2805(f)(1) clearly displays an intent to prohibit certain conduct, the PMPA does not provide franchisees with a distinct and independent remedy for a franchisor’s violation of this statutory subsection.” Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 857 (7th Cir. 2002) (emphasis added). Here, Plaintiffs do not even attempt to plead a cause of action under the PMPA, nor do their claims arise under the PMPA, and these failures are fatal to Count V. Indeed, “a franchisee 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” the statute. Id. at 857–58. Plaintiffs expressly allege that the Replacement 9 Southside also contends the Cheek rule is preempted by the FAA because “[c]ourts may not . . . invalidate arbitration agreements under state laws applicable only to arbitration provisions.” Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687. Maryland’s arbitration-only mutuality rule is preempted by the FAA because it “singl[es] out arbitration provisions for suspect status.” Id. at 687. We recognize that the Fourth Circuit rejected this argument in Noohi v. Toll Bros., Inc., 708 F.3d 599, 612 (4th Cir. 2013), and raise the issue here to preserve it for appellate purposes. Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 20 of 24 21 Supply Contracts at issue in this case were “renewals” of their existing franchise agreements with Exxon, (Am. Compl. ¶ 78), so Plaintiffs attempt to allege a violation of § 2805(f)(1) in Count V fails as a matter of law. See Dersch Energies, Inc., 314 F.3d at 861 (“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 or nonrenewal is not at issue.”); Korangy v. Mobil Oil Corp., 84 F. Supp. 2d 660, 664 (D. Md. 2000) (“In order to invoke the protections of the PMPA, franchisees must first prove that their franchise was terminated or nonrenewed.”). Second, even if Plaintiffs could enforce § 2805(f) against Southside (and they cannot), nothing in the Replacement Supply Contracts remotely suggests that Plaintiffs were “required” to execute the arbitration provision that allegedly waived the right to a jury trial or the right to file a suit for monetary damages. Instead, by Plaintiffs’ own admissions and under the express terms of the Letters of Intent, the Replacement Supply Contracts were the product of extensive, arms-length negotiations and provided Plaintiffs the opportunity (at their request) to purchase their respective service stations. (See Am. Compl. ¶¶ 10-25.) The Plaintiffs were given the option to purchase their service stations and enter into Replacement Supply Contracts with Southside; they were equally free to refuse the terms of the Replacement Supply Contracts and continue to lease the stations from Southside under their Existing Supply Contracts which were subject to an automatic extension and renewal per the terms of the Letters of Intent. (Id. ¶ 19 & Exs. 1 and 2.) Southside did not force or strong-arm the Plaintiffs into executing their Replacement Supply Contracts. Southside did not condition renewing the Existing Supply Contracts on the Plaintiffs’ acceptance of an arbitration covenant. Such extensions and renewals were guaranteed and automatic under the Letters of Intent and Existing Supply Contracts. The arbitration clause was only included as part Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 21 of 24 22 of the Replacement Supply Contracts that each Plaintiff would have to enter into if, and only if, such Plaintiff wanted to buy its service stations, a right it did not otherwise have. Further, Plaintiffs agreed in the Replacement Supply Contracts that they had “discussed the provisions herein and find them fair and mutually satisfactory; and further agree that in all respects the provisions are reasonable . . . .” (Ex. 3 at 17, § 25.) In short, Plaintiffs were not “required” to waive any rights under § 2805(f)(1) as a condition to renewing their franchise agreements with Southside. They voluntarily agreed to do so in order to have the right to purchase their sites, and § 2805(f) simply does not apply. See Storto Enterprises, Inc. v. ExxonMobil Oil Corp., 2011 WL 231877, at *5 n.12 (D. Md. Jan. 24, 2011) (rejecting argument that contractual limitations period in franchise agreement violated the PMPA because § 2805(f) “does not prohibit franchisees from voluntarily contracting to waive” state rights) (citing Bajwa v. Sunoco, Inc., 320 F. Supp. 2d 454, 464–65 (E.D. Va. 2004)) (franchisee may “contract[ ] away” state rights). Finally, the arbitration provision violates neither Maryland nor Virginia law. “A party to an arbitration agreement may of course agree to waive certain rights as part of that agreement. To give just one example, the waiver of the right to a jury trial is a necessary and fairly obvious consequence of an agreement to arbitrate.” Hayes v. Delbert Servs. Corp., 811 F.3d 666, 675 (4th Cir. 2016) (internal quotation marks and citation omitted). Maryland and Virginia recognize a “strong public policy in favor of freedom to contract,” Coll. of Notre Dame v. Morabito Consultants, Inc., 752 A.2d 265, 271 (Md. Ct. Spec. App. 2000); Worrie v. Boze, 62 S.E.2d 876, 882 (Va. 1951) (“Freedom to contract must not be unreasonably abridged”), and that freedom was exercised by Plaintiffs and Southside in connection with the Replacement Supply Contracts in this case. For all of these reasons, the Court should dismiss Count V, with prejudice. Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 22 of 24 23 V. CONCLUSION WHEREFORE, for the reasons stated above, and as may be advanced at hearing, Defendant Southside Oil, LLC respectfully requests that this Court: 1. Stay this matter and send the dispute, with the exception of J&L, to arbitration in accordance with the Replacement Supply Contract’s arbitration provision and Southside’s contemporaneously-filed Motion to Compel Arbitration; 2. Grant Southside’s Motion to Dismiss with prejudice; 3. Dismiss Counts II, III, IV, and V of the Amended Complaint with prejudice; 4. Award Southside its costs; and 5. Award Southside such other and further relief as is proper. Respectfully submitted, SOUTHSIDE OIL, LLC /s/ Robert K. Cox _______ Robert K. Cox, Esq. (D. Md. Bar # 08752) bcox@williamsmullen.com Williams Mullen 8300 Greensboro Drive Suite 1100 McLean, VA 22102 T: (703) 760-5227 F: (703) 748-0244 Counsel for Defendant Southside Oil, LLC Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 23 of 24 24 CERTIFICATE I HEREBY CERTIFY that on 12th day of May, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following: Alphonse M. Alfano, Esq. (D. Md. Bar # 13862) bma@bmalaw.net Bassman, Mitchell, Alfano & Leiter, Chtd. 1707 L Street, N.W., Suite 560 Washington, DC 20036 T: (202) 466-6502 F: (202) 331-7510 Counsel for Plaintiffs /s/ Robert K. Cox _______ Robert K. Cox, Esq. (D. Md. Bar # 08752) bcox@williamsmullen.com Williams Mullen 8300 Greensboro Drive Suite 1100 McLean, VA 22102 T: (703) 760-5227 F: (703) 748-0244 Counsel for Defendant Southside Oil, LLC Case 1:17-cv-00825-GLR Document 20-1 Filed 05/12/17 Page 24 of 24 Case 1:17-cv-00825-GLR Document 20-2 Filed 05/12/17 Page 1 of 1 Case 1:17-cv-00825-GLR Document 20-3 Filed 05/12/17 Page 1 of 1 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 1 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 2 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 3 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 4 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 5 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 6 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 7 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 8 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 9 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 10 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 11 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 12 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 13 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 14 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 15 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 16 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 17 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 18 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 19 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 20 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 21 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 22 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 23 of 24 Case 1:17-cv-00825-GLR Document 20-4 Filed 05/12/17 Page 24 of 24 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 1 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 2 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 3 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 4 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 5 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 6 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 7 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 8 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 9 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 10 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 11 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 12 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 13 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 14 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 15 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 16 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 17 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 18 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 19 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 20 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 21 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 22 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 23 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 24 of 25 Case 1:17-cv-00825-GLR Document 20-5 Filed 05/12/17 Page 25 of 25