Case No. 6:18-cv-914-Orl-40EJK
Kevin A. Reck, Sarah Guo, Foley & Lardner, LLP, Orlando, FL, for Plaintiff. Robert MacFarlane Mayer, Robert M. Mayer & Associates, Miami, FL, for Defendant.
Kevin A. Reck, Sarah Guo, Foley & Lardner, LLP, Orlando, FL, for Plaintiff.
Robert MacFarlane Mayer, Robert M. Mayer & Associates, Miami, FL, for Defendant.
MEMORANDUM OPINION AND ORDER
PAUL G. BYRON, UNITED STATES DISTRICT JUDGE
This cause is before the Court following a three-day bench trial beginning on February 24, 2020. Having considered the pleadings, evidence, argument, and relevant legal authority, and having made determinations on the credibility of the witnesses, the Court hereby renders its decision on the merits of this case pursuant to Federal Rule of Civil Procedure 52.
I. FINDINGS OF FACT
Defendant Southeast Petro Distributors, Inc. ("Southeast "), is a wholesale distributor of petroleum products. (Doc. 50, ¶¶ 4, 6). Plaintiff LLB Convenience & Gas, Inc. ("LLB "), is corporation that owns and operates a gas station located at 8788 Vineland Avenue, Orlando, FL 32821 ("Vineland Station " or "Station "). (Doc. 44, ¶ 6). LLB entered into a franchise agreement with Southeast for the supply of motor fuel. (Doc. 14-1; Pl. Ex. 1). LLB now claims that Southeast violated the Petroleum Marketing Practices Act ("PMPA " or "Act "), 15 U.S.C. § 2801, et. seq. (Doc. 44), by terminating the franchise without providing the required notice. (Count One) (Id. ¶¶ 43–44). LLB also alleges that Southeast's conduct constitutes anticipatory repudiation "by refusing to supply LLB with Shell-branded motor fuels and by demanding [LLB] debrand the Vineland Station." (Count Two) (Id. ¶ 54). Finally, LLB claims Southeast breached the Dealer Supply Agreement by refusing to allow LLB to continue processing Shell's credit cards via the Shell system. (Count Three) (Id. ¶¶ 62–63).
1. The WMA
Southeast obtains Shell-branded fuel pursuant to a Wholesale Marketer Agreement ("WMA ") with Motiva Enterprises, LLC ("Motiva "). (Doc. 50; Pl. Ex. 7). The WMA grants Southeast Petro permission to use the Shell trademark at service stations subject to the terms of the WMA. (Id. ). The WMA requires Southeast to follow, and to cause its franchisee retail outlets ("Retail Outlets ") to follow, "all rules, regulations, standards, and guidelines [Motiva] establishes from time to time relating to the use and display of the [Shell] Identifications." (Pl. Ex. 7, ¶¶ 5(c), 7). For instance, Southeast must ensure that its Retail Outlets "diligently and efficiently merchandise[ ] and promote[ ]" the Shell fuel; conduct operations "in a professional, business-like, ethical and moral manner"; provide the public "with prompt, courteous, and efficient service"; and "promptly and courteously respond to any customer complaints (including written responses when appropriate) and take immediate action to resolve satisfactorily each customer complaint." (Id. ¶ 7(c)–(e)). If any Southeast Retail Outlet fails to meet Motiva's brand standards, the WMA grants Motiva the power to "revoke its permission to display the [Shell] Identifications at the [Retail Outlet]." (Id. ¶¶ 7(b), 24).
However, LLB is not a party to the WMA. (Id. ).
LLB did not sue Motiva, and Southeast did not add Motiva as third-party.
2. The DSA
Southeast and LLB entered into a Dealer Supply Agreement ("DSA "). Pursuant to the DSA, Southeast agreed to supply LLB with Shell-branded fuel and to permit LLB to use the Shell Identifications at the Vineland Station. (Pl. Ex. 1, ¶ 2(a)). "LLB [was also] authorized to use the credit card programs currently being offered by [Motiva]"—namely, Shell's credit card processing system. (Id. ¶ 12). This allowed the Vineland Station to "make sales of products and services ... to persons presenting a valid credit card listed and approved by [Motiva]." (Id. ). In executing the DSA, LLB acknowledged and agreed that "[e]ach of Shell's brands ... [were] ... owned by [Motiva]" and that LLB had "no rights therein except as permitted by [Motiva]." (Id. ). LLB also agreed to "use Shell's brands only in accordance with standards established by [Motiva] from time to time" and that "[t]he privilege of using Shell's brands [would] automatically terminate when the franchise relationship between [Motiva] and [Southeast] [was] terminated, or on thirty (30) days’ written notice, in the event of [LLB]’s violation of any provision ... or any ... standards" in the DSA. (Id. ).
As illustrated in paragraph 3 of the DSA, LLB "understood that [Southeast] was obligated under its agreement with [Motiva] to abide by certain standards of operation and appearance." (Id. ¶ 3(a)). LLB agreed to comply with requirements imposed on it by Southeast. (Id. ). Notwithstanding this provision, the DSA is silent as to the price LLB could charge per gallon for Shell-branded fuel. The DSA gave Southeast "the right at any time to change, withdraw, substitute or add brands and grades of petroleum products, TBA, trademarks, identification signs or color schemes." (Id. ¶ 5). And, if Southeast's relationship with Motiva "terminate[d]" or the Shell "brand bec[ame] unavailable," Southeast agreed to rebrand the Vineland Station with another brand that it wholesales, such as BPAmaco, Citgo Oil, ExxonMobil or Sunoco. (Id. ¶ 6).
II. LEGAL PRINCIPLES APPLICABLE TO THE CAUSES OF ACTION
A. The PMPA
Congress enacted the PMPA in 1978 to protect motor fuel franchisees from arbitrary or discriminatory termination or nonrenewal of their franchise agreements. Shukla v. BP Expl. & Oil, Inc. , 115 F.3d 849 (11th Cir. 1997) (quoting Jones v. Crew Distrib. Co. , 984 F.2d 405, 407–08 (11th Cir. 1993) ). The PMPA applies to four types of franchises, including contracts between "a distributor and a retailer, under which ... distributor ... authorizes or permits a retailer ... to use, in connection with the sale ... of motor fuel, a trademark which is owned or controlled ... by a refiner which supplies motor fuel to the distributor which authorizes or permits such use." 15 U.S.C. § 2801(1)(A)(iv). Thus, it is undisputed that the DSA between Southeast and LLB falls within the ambit of the PMPA. (Doc. 50, ¶ 5).
Southeast did not contend at trial that they provided the requisite notice for termination under the PMPA. Rather, Southeast argued their actions do not constitute termination of the franchise agreement.
The PMPA prohibits a franchisor from, inter alia , terminating a franchise unless the franchisor does so pursuant to one of the grounds enumerated in § 2802(b)(2) and meets the notification requirements contained in § 2804. 15 U.S.C. § 2802(a) – (b). If a franchisor fails to terminate a franchise in accordance with the PMPA, the franchisee may maintain a civil action under § 2805. The franchisee bears the threshold burden of "proving the termination of its franchise" within the meaning of the Act. Id. § 2805(c). Only then does the franchisor have the burden of establishing that it is entitled to one of the affirmative defenses permitted under the Act. Id. § 2805(c).
The Act specifies that "[t]he term termination includes cancellation[,]" but it does not further define the term "terminate" or its incorporated term "cancel." See id. § 2801(17). However, giving these terms their ordinary meanings, the Supreme Court has held that the PMPA "is violated only if an agreement for the use of a trademark, purchase of motor fuel, or lease of a premises is ‘put to an end’ or ‘annulled or destroyed.’ " Mac's Shell Serv., Inc. v. Shell Oil Prods. Co. LLC , 559 U.S. 175, 183, 130 S.Ct. 1251, 176 L.Ed.2d 36 (2010). The DSA contains an addendum which modifies the Rebranding Provision "to add that should [Southeast] notify [LLB] that [Motiva] has decided to withdraw from the market and that its brand is no longer available, then in that case [LLB] shall have the right, in its sole discretion, to terminate the [DSA] with 15 days written notice from date of notification." (Pl. Ex. 1, p. 12). The Court previously interpreted "no longer available" to mean "not possible to get or use" or "unable or unwilling to do something." (Doc. 81, p. 18). The Court concluded that the Rebranding Provision allowed Southeast to rebrand the Vineland Station in circumstances where the Shell brand became impossible "to get or use." ( Id. ).
The Court further determined that paragraph 5 of the DSA gave Southeast "the right at any time to change, withdraw, substitute or add brands and grades of petroleum products, TBA, trademarks, identification signs or color schemes." (Doc. 81, p. 19, n.9) (quoting Pl. Ex. 1, ¶ 5). The Court held that paragraph 5 does not conflict with the Rebranding Provision because "these provisions serve two distinct functions. Paragraph 5 confers Southeast the right to change the brand of petroleum, whereas the Rebranding Provision obligates Southeast to change the brand of petroleum should certain events occur." (Id. ).
B. Anticipatory Repudiation
Anticipatory repudiation of a contract relieves the non-breaching party of its duty to perform under the contract and creates an immediate cause of action for breach of contract. Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So. 2d 181, 182 (Fla. 1982) ; Gaylis v. Caminis, 445 So. 2d 1063, 1065 (Fla. 3d DCA 1984) ("the law is clear that a repudiation relieves the non-breaching party of its duty to tender performance"); Twenty–Four Collection, Inc. v. M. Weinbaum Constr., Inc. , 427 So. 2d 1110, 1111 (Fla. 3d DCA 1983) ; see also Exim Brickell LLC v. PDVSA Servs. Inc. , 516 F. App'x 742, 758 (11th Cir. 2013) ("[A]nticipatory repudiation centers upon an overt communication of intention or an action which renders performance impossible or demonstrates a clear determination not to continue with performance."); Fla. Stat. § 672.610. The non-breaching party must be willing and able to perform the contract at the time of the anticipatory repudiation. See, e.g. , Fla. Stat. §§ 672.610, 672.711 ; Hosp. Mortg. Grp. , 411 So. 2d at 182.
C. Breach of Contract
To state a claim for breach of contract under Florida law, a plaintiff must establish the following elements: (1) a valid contract; (2) a material breach; (3) causation; and (4) damages. Handi–Van, Inc. v. Broward Cty. , 116 So. 3d 530, 541 (Fla. 4th DCA 2013) ; Abbott Labs., Inc. v. Gen. Elec. Capital , 765 So. 2d 737, 740 (Fla. 5th DCA 2000).
A. Count One (PMPA)
1. Issue: Whether Southeast Terminated the Franchise Agreement
LLB opened for business in February 2008. (Doc. 109, 33:19–22). Mr. Faisal Ansari, LLB's president and owner, increased the price charged for fuel from rack plus 30 to rack plus 80 cents per gallon. (Id. 32:25, 38:8–13). By August 2011, LLB was charging $5.99 per gallon for regular unleaded fuel. (Id. 39:13–23). At one point, LLB raised the price to $6.44 before lowering it back to $5.99 due to negative press coverage. (Id. 41:11–20). Mr. Ansari testified that he chose to sell Shell-branded fuel due to its credit card rewards program. (Id. 43:18–44:2). However, he knew that LLB's right to sell Shell-branded fuel along with the right to use Shell trade dress and its reward program was not without limitation. Section 13 of the DSA provides that Southeast does not control the rights to the Shell brand logo or trademarks. (Id. 44:3–14). Mr. Ansari understood that pursuant to § 7(b) of the WMA, "Motiva[ ] [has the] ability to revoke Southeast Petro's right to authorize the use of the Shell brands, trademarks, and signs at the Vineland Station." (Id. 48:8–20). Furthermore, to have access to Shell's logo and credit card network, LLB must comply with brand standards set forth in § 7 of the WMA. (Id. 45:1–16, 48:2–5).
The DSA states: "It is understood and agreed by Dealer that Company [Southeast] neither owns nor controls the signs, brands, trademarks or trade names of Oil Company." (Pl. Ex. 1, ¶ 13).
On August 11, 2015, Motiva wrote to Southeast to report they had received in the course of one year 99 customer complaints regarding price gouging at the Vineland Station. (Id. 49:18–50:14; Pl. Ex. 2). Mr. Ansari testified that to assuage Motiva's concerns, he agreed to provide a 50% refund to consumers who provide proof of purchase and contact information. (Id. ). However, on March 28, 2016, Motiva reported to Southeast an additional 309 customer complaints alleging price gouging at the Vineland Station. (Id. 57:20-24, Pl. Ex. 3). Motiva provided notice to Southeast that "permission to use the ‘Identifications’ (trade dress) at the Buyer's Outlet (the Vineland Station) has been revoked and Wholesaler must de-identify ... Buyer's Outlet no later than July 26, 2016." (Pl. Ex. 3).
Mr. Ansari, through his attorneys, replied to Motiva's de-branding notice on May 27, 2016, denying wrongdoing and characterizing Motiva's de-branding notice as "constituting tortious interference with the existing business relationship that it has with Southeast Petro pursuant to their Dealer Supply Agreement." (Id. 60:8–9; Pl. Ex. 6). Notwithstanding the de-branding notice, Southeast continued to supply Shell-branded fuel to LLB through June 6, 2018. (Doc. 110, 70:19–21).
On January 31, 2018, Motive again informed Southeast that it had received in excess of 400 customer complaints over the "past few months" regarding the Vineland Station. (Doc. 109, 64:2–8; Pl. Ex. 12). Motiva stated that LLB violated § 7(d) of the WMA which requires the operations at the Buyer's Outlet to be conducted in a professional, business-like, ethical, and moral manner. (Id. ). Further, the complaints of price gouging violated § 9(a) which obligates the Buyer to use its reasonable efforts to develop and actively promote the sale of Products. (Id. ). On February 14, 2018, Mr. Ryan Firth, the Director of Business Development for Southeast, advised LLB that unless Shell (Motiva) withdraws its notice, LLB must de-brand by May 10, 2018. (Id. 64:12–15; Pl. Ex. 13).
Mr. Ansari testified, correctly, that the DSA does not define competitive pricing for fuel. (Doc. 109, 83:15–22; 84:8–10).
On May 24, 2018, having received the de-brand notice from Motiva, Southeast sent Mr. Ansari an email asking if he can "load up on Shell fuel" because "Shell is tightening the screws." (Id. 72:18–73:8; Pl. Ex. 33). Southeast asked LLB "[s]hould we just to Citgo, and at least they waive the $60K in lost profits and incentives?" (Id. ). Mr. Ansari responded, as follows:
Thanks for the heads up man. My tank is pretty full rt now and I can probably place an order by Monday if it will still be honored. We are still considering our options on next steps but one of my concerns with going Citgo is the gallonage requirement. I know you told me that you and Shell didn't care about it and wouldn't enforce it, but what about Citgo? Will they have a min volume requirement and will they enforce it? In addition will Citgo's brand standards in respect to complaints be an issue? Just asking because at this point going unbranded is starting to seem appealing, especially if we cant get any money from them for the rebrand.
Any word on whether we can go 7-11 inside and control our own gas outside? We would really like to fly the 7-11 flag and sell unbranded or 7-11 gas if possible. When we spoke with those guys 5 or 6 years ago they were very bullish on our site and didnt care what we did with the gas. Please reach out to those guys or forward me a contact.
(Pl. Ex. 33). Southeast replied that they will be upfront with anyone they talk to, so there are no surprises later. (Id. ). They also agreed to contact 7-11 to see if they will agree to Mr. Ansari's proposition. (Id. ).
The gallonage requirement referenced by Mr. Ansari appears in paragraph 8 of the DSA and requires LLB to purchase in each contract year a quantity of fuel equal to 100,000 gallons per month. (Pl. Ex. 3, ¶ 8). Mr. Ansari testified that LLB never met this requirement and typically sold between 60,000–70,000 gallons of fuel a month. (Doc. 109, 72:2–6). Mr. Ansari stated that Southeast's representative, Mr. Summit Shah, advised him that neither Southeast nor Motiva would enforce the gallonage requirement. (Id. 72:10–17; Pl. Ex. 13). However, the DSA provides "[t]he waiver of any default or breach [such as gallonage] by Dealer ... or failure to insist upon strict performance of any of the terms or provision hereof ... shall not be taken to be a waiver of any continuing or subsequent default or breach ...." (Pl. Ex. 1, ¶ 22). Additionally, any modification or waiver of any provision of the DSA must be in writing and duly executed by LLB and Southeast. (Doc. 110, 68:15–18; Pl. Ex. 1, ¶ 24). Mr. Shah contradicted Mr. Ansari's assertion that the waiver was in perpetuity, testifying that his company never agreed to waive the minimum gallonage requirement in the future, although he conceded they had waived the requirement in the past. (Id. 68:2–6). The Court finds Mr. Shah's testimony on this point to be more credible than Mr. Ansari's testimony, particularly considering the unambiguous language contained in the DSA.
Southeast attempted to convince Motiva to extend the deadline for de-branding Shell fuel and trade dress, but Shell denied the request. (Doc. 109, 76:10–20; Pl. Ex. 24). Southeast advised LLB they were working on obtaining an alternative brand to be sold at the Vineland Station and a replacement merchant account for processing credit card sales. (Pl. Ex. 24). Mr. Ansari acknowledged that Southeast was successful in obtaining North American Bank Card to act as LLB's merchant services account, after LLB lost access to the Shell rewards program. (Doc. 109, 77:4–14; 78:11–19). In short, Southeast diligently endeavored to convince Motiva to continue to supply LLB with Shell-branded fuel and worked to find a replacement merchant account so LLB could continue to process credit card transactions. Finding a replacement brand was complicated by Mr. Ansari's refusal to accept a brand that would not agree to waive a gallonage requirement. (Id. 121:22–122:3).
In early May 2018, Mr. Shah advised LLB that Southeast had received final approval for the Vineland Station to sell Citgo-branded fuel and the use of Citgo's trade dress. (Id. 88:6–16). Mr. Ansari agreed to switch to the Citgo brand and to takes steps necessary for a "soft rebrand." (Id. 89:18–25; Doc. 110, 73:21–74:12). He agreed that Southeast could cover his monument sign and all Shell identifications and logos. (Doc. 109, 89:18–90:2). The monument sign was covered on June 15th, and later that evening Mr. Shah advised Mr. Ansari that Citgo decided not to go forward with the rebranding. (Id. 90:20–91:3). In response, Mr. Ansari instructed his staff to remove the covers and display the Shell logo. (Id. 91:4–10).
Aluminum Plus was hired to cover the monument sign which was damaged in the process. (Doc. 109; 90:6–15). The damage allegedly caused by Aluminum Plus is not actionable under the PMPA, nor does it constitute a breach of the DSA. It is a red herring.
Mr. Shah testified that Citgo approved LLB's Vineland Station to sell Citgo-branded fuel. (Doc. 110, 74:20–22). Southeast received a facility number from Citgo which means Citgo had approved the Vineland Station to sell its fuel. (Id. 75:5–17, 101:18–102:25; Doc. 111, 16:9–11, 19). Citgo revoked its approval of the Vineland Station after they sent Southeast two complaint notices. (Id. 103:5–19). After Citgo declined to supply the Vineland Station, Southeast contacted Valero as a potential source of branded fuel; however, Valero has a minimum gallonage requirement, and the agreement was not consummated. (Id. 108:1–23). Southeast worked to find another branded fuel to supply LLB, including Amoco, BP, Exxon/Mobil, Chevron, Texaco, Sunoco, and Marathon. (Doc. 111, 14:24–15:13). However, LLB's insistence that suppliers waive minimum gallonage requirements "made it near impossible" to find a replacement. (Id. 16:1–2). Southeast's representative, Mr. Firth, testified that up to the trial he continued working to find a replacement brand, but he was inhibited by LLB's requirement that minimum gallonage requirements be waived. (Id. 18:18–19:16). Mr. Shah explained that LLB's rising prices also impeded Southeast's efforts to find a replacement brand. (Doc. 110, 120:11–16).
Mr. Shah testified that Southeast never informed LLB the supply of fuel would be discontinued. (Id. 76:11–16, 81:5–13). While Mr. Shah did send an email within Southeast directing that the Vineland Station would not be provided fuel; he explained this was a temporary measure prompted by LLB initiating a lawsuit in state court. (Id. 164:2, 10–25, 165:22–166:6). The Vineland Station never went without fuel. (Id. 166:11–12).
2. No Violation of the PMPA
As discussed in Section II.A, the PMPA protects franchisees from arbitrary or discriminatory termination of their franchise agreements. BP Expl. & Oil, Inc. , 115 F.3d at 852. "When given its ordinary meaning, the text of the PMPA prohibits only that franchisor conduct that has the effect of ending a franchise." Mac's Shell Serv., Inc. , 559 U.S. at 182, 130 S.Ct. 1251. The question then is what conduct did Southeast engage in to end the franchise?
The addendum to the DSA provides that should Motiva notify Southeast that its brand is no longer available, Southeast has the right "in its sole discretion" to terminate the DSA. (Pl. Ex. 1, p. 12). It is undisputed that after receiving hundreds of consumer complaints for price gouging—and after providing LLB several opportunities to remedy the situation—Motiva finally instructed Southeast that its Shell brand was no longer available to LLB. The WMA empowered Motiva to prevent Southeast from supplying its branded fuel to LLB. Thus, Southeast was powerless to prevent Motiva from de-branding the Vineland Station.
Instead of terminating the franchise agreement, Southeast worked to find a replacement brand. By June 2018, Southeast secured Citgo as a replacement brand, but Citgo ultimately withdrew from the supply agreement. Undeterred, Southeast tried to secure other branded fuels, but LLB's insistence that suppliers waive a minimum gallonage requirement presented an insurmountable hurtle to securing a replacement brand. Quite literally, LLB's desire to charge $5.99 per gallon for regular unleaded fuel rendered it impossible for Southeast to rebrand the station. Kamel v. Kenco/the Oaks at Boca Raton, LP , No. 07-80905, 2008 WL 2245831, *3 (S.D. Fla. May 29, 2008) (noting that the doctrine of impossibility of performance "refers to those factual situations ... where the purposes, for which the contract was made, have, on one side, become impossible to perform") (citation omitted).
To the extent Southeast was required by the terms of the DSA to rebrand the Vineland Station once Motive withdrew its Shell-branded fuel and trade dress, it fulfilled its obligation by securing Citgo as a replacement. Southeast's inability to find a supplier of branded fuel after Citgo withdrew its offer resulted from LLB's pricing decisions, the attendant customer complaints, and LLB's reputation in the industry. That is, Southeast did not terminate the franchise agreement. Instead, LLB rendered it impossible for Southeast to find a replacement supplier.
The PMPA is intended to prevent arbitrary termination of franchise agreements. It is a shield. LLB's interpretation of the PMPA, however, turns the law on its head by creating a weapon whereby LLB seeks to hold Southeast liable for LLB's unwillingness to accept any brand that imposes a minimum gallonage requirement. The Court will not punish Southeast for attempting to secure a replacement brand and reward LLB for making that task impossible. Thus, the Court finds for Southeast did not terminate the PMPA and finds for Southeast on Count One.
B. Count Two (Anticipatory Repudiation)
1. Refusing to Supply Shell-branded Fuel and De-branding
The core facts offered in support of this count are the same as those offered in support of, and opposition to, the PMPA claim. As previously discussed, Southeast did not terminate the franchise agreement. Motiva refused to supply Shell-branded fuel, and Southeast lacked authority under the WMA to override that decision. Moreover, to succeed on a claim for anticipatory repudiation, the non-breaching party must be willing and able to perform the contract at the time of the anticipatory repudiation. First Prudential Dev. Corp. , 411 So. 2d at 182. It is undisputed that LLB never met the minimum gallonage requirement set forth in the DSA. (Pl. Ex. 1, ¶ 8). While Southeast may have waived the gallonage requirement in the past, the DSA provides that "failure to insist upon strict performance of any terms or provisions [of the DSA] ... on the part of the Company shall not be taken to be a waiver of any continuing or subsequent default or breach of the same ... covenant, condition or provision ...." (Pl. Ex. 1, ¶ 22). LLB never met the 100,000-gallon minimum, and it insisted that any replacement supplier of branded fuel waive a minimum gallonage requirement. That is, LLB was neither willing nor able to perform the terms of the contract. As previously discussed, the Court finds Mr. Shah's testimony on the issue of waiver more credible than Mr. Ansari on this point.
Accordingly, the Court finds in favor of Southeast on Count Two.
C. Count Three (Breach of Contract)
1. Discontinuing the Shell Reward Program
LLB contends in the Second Amended Complaint that Southeast breached the DSA by terminating the Shell Processing System in violation of paragraph 12 of the DSA. While Mr. Ansari testified that Aluminum Plus damaged the red bar on the monument sign which is part of the Shell logo, the DSA does not impose a duty on Southeast to repair damage to signage. (Pl. Ex. 1). To the contrary, the DSA specifically states Southeast "neither owns nor controls the signs, brands, trademarks or trade names of the Oil Company." (Id. ¶ 13). Similarly, Mr. Ansari testified Southeast breached the DSA when the Vineland Station was removed from the Shell App and Shell Website. (Doc. 109, 45:12–21). The DSA does not impose a duty upon Southeast to provide LLB access to the Shell App or its website. Plaintiff cannot create a duty under the contract where none exists.
LLB argues in their closing brief that Southeast breached the DSA by "(1) removing and failing to replace the red bar of the Shell logo; (2) removing the Vineland Station from the Shell App and Shell's corporate website; and (3) removing LLB from the Shell Processing System." (Doc. 115, p. 33). However, the Second Amended Complaint alleges Defendant breached the contract by "terminating Plaintiff's access to the Shell Processing System." (Doc. 10, ¶¶ 62–64).
It is undisputed that LLB lost the right to use the Shell credit card system when Motiva directed Southeast to de-brand the Vineland Station. Yet, as this Court previously observed, paragraph 12 of the DSA "imposes no duty on Southeast to provide LLB with access to Shell's Processing System, much less indefinite access." (Doc. 81, p. 25). The Court explained:
The plain language of Credit Card Provision makes it quite clear that Shell's Processing System was controlled by Motiva, not Southeast. (See id. (indicating that the "the credit card program" was "being offered by "[Motiva] or Motiva's primary supplier ," that the credit card would be processed through "[Motiva]’s networks," and that charges for the processing of credit cards would be "imposed by [Motiva]")). Therefore, the Court finds that Southeast was under no duty to provide LLB with access to Shell's Processing System and that it did not breach the Credit Card Provision when Motiva exercised its authority to revoke LLB's access to the system.
(Id. ). LLB has offered no new evidence or argument to alter the Court's interpretation of the DSA on this point. Accordingly, the Court finds for Southeast on Count Three.
1. The Expert Opinions offered by Plaintiff
The Court recognizes that it need not address the expert testimony presented by the Plaintiff to prove damages, having found for Defendant on the issue of liability. However, the Court will address the expert evidence for completeness.
LLB retained Mr. Ronald Santicola to serve as an expert on the issue of damages. (Doc. 109, 180:23–25). Mr. Santicola earned his bachelor's degree in economics from Robert Morris College in 1984. (Id. 181:17–22). He acquired considerable experience in the petroleum industry as the COO of Knight Energy Services and has served as a consultant to several major companies. (Id. 181:23–182:11). Mr. Santicola is clearly qualified to render an expert opinion in this case. See Fed. R. Evid. 702 ; Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Mr. Santicola opined that the Vineland Station saw a 5.5 percent decrease in transactions following de-branding and a 12.93 percent decrease in the actual value of each transaction. (Doc. 109, 208:2–20; 209:14–18). Mr. Santicola explained the decrease in both the volume of transactions and the amount spent per transaction, as follows:
So why did the customer behave that way? A, why did less people come in when the price stayed the same? And then, why did they purchase less, okay, when the price was the same? Because that would have been the normal variable you would look at, but it was the same.
So it then comes down to the consumer behavior at the pump. And I believe that the splash screen differentials and the fact that the station looks kind of funky right now is what's causing people to be more reticent to purchase. You know, instead of filling the car, I'll put in a 20, you know, instead of, you know, maybe I won't come in at all. That could be why 5 percent of the people never showed.
Mr. Santicola opined the "non-standardization of the brand identity" was causing customers to visit less frequently and spend less per transaction post de-branding. (Id. 225:20–24). He acknowledged the appearance of the station was not a factor in that it remained clean with a "nice little shop" or convenience store. ( Id. ). Mr. Santicola identified the following changes after the Shell brand was removed:
The canopy not being lit at night, it being damaged. Okay. The non-Shell splash screens on the dispensers. Okay. The no Shell -- or, you know, there's always brochures you can pick up saying, get a credit card, do this. There's all kinds of -- the Shell NASCAR driver that's eight-feet tall standing in the window, you know, when the Daytona 500's coming. That's all what goes into branding. And they're not available. None of that stuff is being availed to them because of the virtual de-branding of the station.
Mr. Santicola acknowledged that the Vineland Station consistently charged $5.99 per gallon, both before and after de-branding, but the average price in the community fell during the relevant period. (Id. 229:19–25). Upon questioning by the defense, Mr. Santicola agreed that "[r]etail fuel is generally considered to be a highly elastic commodity; in other words, it is responsive to pricing differentials." (Doc. 110, 10:11–13). He also agreed that the data from 2013 to 2018 reflects a pattern of declining volume in sales at the Vineland Station, albeit a small decline each year. (Id. 11:12–15).
On re-direct examination, Mr. Santicola opined that the 5.45 percent decrease in the number of fuel sale transactions after May 2018 is attributed to three factors: (1) the removal of the Vineland Station from the Shell locater app; (2) the discontinuation of the Shell credit card and rewards program; and (3) unavailability of Shell fleet cards. (Id. 15:11–23). Mr. Santicola repeated his theory that the decline in revenue post de-branding is due to the "beat-up canopy, the no lighting of it at night, ... the lack of Shell brochures ... the non-standard splash screen on the fuel dispenser ... [and] the non-standard card authorization sequence ... where you pick ... credit or debit." (Id. 17:23–18:11). When asked by Plaintiff's counsel "why do you attribute those issues to a decline in sales revenue," Mr. Santicola replied:
Well, the sales transaction value means that somebody has come in and actually decided to purchase fuel. Okay? So then, what causes them to buy less? And what causes people to spend less really in any place is some sort of discomfort or uneasy -- unease in what's going on in the transaction.
So to me, the fact that you see people -- skimmers on pumps, you know, the card breaches -- Wawa just had one -- you know, people just get very nervous about using their card at the dispenser. So anything that varies from what they're used to would lead them to spend less.
2. The Court's Inquiry
Having listened to Mr. Santicola's explanation of how Motiva's decision to discontinue LLB's sale of Shell-branded fuel and the use of Shell trade dress affected revenue, the Court asked Mr. Santicola to identify the studies or empirical data he is relying upon to support his opinion that the decrease in revenue is caused by the factors he identified. (Id. 22:11–23:9). In response, Mr. Santicola testified that the inability to access Shell credit cards resulted in a decrease in 2 percent for Shell cards and 1.45 for Shell fleet cards. (Id. 23:22–24:3). The Court asked whether the consumers who had Shell cards simply used a different credit card or payment method as opposed to electing to purchase fuel elsewhere. (Id. 24:4–8). Mr. Santicola replied that it is impossible to track whether consumers with Shell credit cards used a different payment method. (Id. 24:9–10). The Court also asked Mr. Santicola if he analyzed transactions occurring during daylight hours versus nighttime sales to substantiate his opinion that the damaged monument sign contributed to the decline. (Id. 24:15–19). In response, Mr. Santicola stated the data provided to him was not broken down by the time of day, even though the credit card sales are stamped with time and date. (Id. 24:20–25). When asked to explain why consumers would be hesitant to use their credit card, he explained that once Motiva discontinued LLB's use of the Shell logo "[t]he screen colors are different. The prompts are different." (Id. 26:6–11). However, Mr. Santicola could point to no data, or methodology, to support his conclusion that these differences in appearance drive consumer behavior.
3. Unreliable Methodology
The Court notes that neither Daubert nor its progeny preclude experience-based testimony ...." Butler v. First Acceptance Ins. Co., Inc. , 652 F. Supp. 2d 1264, 1272 (N.D.Ga. 2009) (quoting Kumbo Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 151, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ). Additionally, an expert is permitted to form conclusions by extrapolating from existing data. Id. (quoting Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ). However, "[a]n expert's opinion becomes inadmissible ... where it is connected to existing data only by the ipse dixit of the expert." Id. at 1271–72 (italics in original) (quoting Joiner , 522 U.S. at 146, 118 S.Ct. 512,); see also Cook ex rel. Estate of Tessier v. Sheriff of Monroe Ct.y , 402 F.3d 1092, 1113 (11th Cir. 2005). When an expert relies primarily on experience, "the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Id. at 1272 (quoting United States v. Frazier , 387 F.3d 1244, 1261 (11th Cir. 2004) ). This is because "[a]n expert's qualification and experience alone are not sufficient to render his opinions reliable," and expert testimony that is nothing more than what lawyers can argue in closing does not help the trier of fact. Id.
Mr. Santicola is certainly qualified to offer expert testimony on the issue of damages. The Court, however, finds Mr. Santicola's methodology to be lacking. His conclusion that the lack of Shell's logo, the absence of brochures and promotional material, and the change in the appearance of the screen at the gas pump contributed to the decline is sales is unsupported by any verifiable or reliable methodology and is untethered from his industry experience. For example, Mr. Santicola did not identify other de-branded stations that experienced a decrease in sales like the Vineland Station. His theory that the unlit monument sign decreased revenue by some unspecified amount is speculative. LLB could have provided Mr. Santicola with data to support his theory that nighttime sales dropped after Aluminum Plus damaged the monument, but they did not provide this information.
Similarly, while Shell credit card sales declined after LLB was denied access to the system, there is no basis for his opinion that those customers did not simply use a different payment method. And Mr. Santicola's theory that consumers became fearful of using their credit card post de-branding is pure speculation. No surveys were conducted, and no data was presented to show a general decline in non-Shell credit card transactions. The Court concludes that Mr. Santicola's methodology lacks sufficient reliability and finds that LLB has failed to prove it suffered financial damage as a result of its inability to sell Shell-branded fuel. The Court also notes that Mr. Santicola's opinion fails to take into consideration that LLB's insistence on the waiver of minimum gallonage requirements prevented Southeast from promptly securing a replacement brand.
Accordingly, it is hereby ORDERED AND ADJUDGED :
1. The Clerk is DIRECTED to enter judgment in favor of Defendant Southeast Petro Distributors, Inc., as to Counts I, II, and III of Plaintiff's Second Amended Complaint (Doc. 44);
2. The Preliminary Injunction previously entered by this Court (Doc. 17) is no longer in force and effect and is dissolved;
3. The Court awards attorneys’ fees and costs to Southeast Petro Distributors, Inc., pursuant to ¶ 27 of the DSA. Southeast Petro Distributors shall submit briefing and evidence on attorneys’ fees and costs within thirty (30) days, and the matter of attorneys’ fees and costs will be referred to the Magistrate Judge; and
4. The Clerk is DIRECTED to close the file.
DONE AND ORDERED in Orlando, Florida on June 12, 2020.