The courts have not unanimously concluded whether the failure to provide a summary statement invalidates a termination notice. Compare Greco v. Mobil Oil Corp., 597 F. Supp. 468, 471 (N.D.Ill. 1984) with Grotemeyer v. Lake Shore Petro Corp., 749 F. Supp. 883, 888-89 (N.D.Ill. 1990). However, the Court is persuaded by the more recent cases which have rejected strict compliance in favor of a more flexible approach.
A few courts have held that the franchisee's failure to adhere to § 2805(b)(4)'s limitations period entitled the franchisor to outright dismissal of the franchisee's claim for equitable relief. Daras v. Star Enterprise, Civ. A. No. 91-480, 1992 WL 345664, 1992 U.S. Dist. LEXIS 17831 (D.Md. Nov. 12, 1992); Brach v. Amoco Oil Corp., 1980 U.S. Dist. LEXIS 9563, No. 80 C 4197 (N.D.Ill. 1980). Several courts have relied at least in part upon the franchisee's failure to timely commence an action in denying equitable relief. See N.I. Petroleum Ventures Corp. v. GLeS, Inc., 333 F.Supp.2d 251, 264 (D.Del. 2004); Grotemeyer v. Lake Shore Petro Corp., 749 F.Supp. 883, 886 (N.D.Ill. 1990); Cantrell v. Exxon Co., U.S.A, 574 F.Supp. 313, 318 (M.D.Tenn. 1983); Kesselman v. Gulf Oil Corp., 479 F.Supp. 800, 804 (E.D.Pa. 1979), aff'd, 624 F.2d 1090 (3rd Cir. 1980) (Table); Walters v. Chevron U.S.A., Inc., 476 F.Supp. 353, 357 (N.D.Ga. 1979), aff'd, 615 F.2d 1135 (5th Cir. 1980) (per curiam).
Congress enacted the Petroleum Marketing Practices Act ("PMPA") to "protect franchised retailers of motor fuel" from "arbitrary or discriminatory termination or nonrenewal of their franchises." Grotemeyer v. Lake Shore Petro Corp., 749 F. Supp. 883, 886 (N.D.Ill. 1990) (citing S.Rep. No. 731, 95th Cong.2d Sess. 15, reprinted in 1978 U.S. Code Cong. Admin.News 873, 874). The PMPA prohibits franchisors from terminating or failing to renew franchises except on the basis of specifically enumerated grounds and upon compliance with certain notification requirements.
The "good faith" test is subjective and meant to preclude sham determinations from being used as an artifice for termination or non-renewal. Lippo v. Mobil Oil Corp., 802 F.2d 975, 977 (7th Cir. 1986), cert. denied, 480 U.S. 918, 107 S.Ct. 1374, 94 L.Ed.2d 689 (1987); Grotemeyer v. Lake Shore Petro. Corp., 749 F. Supp. 883, 890 (N.D.Ill. 1990). The "normal course of business" test, on the other hand, requires that the changes be the result of the franchisor's normal decisionmaking process.
See, e.g., Shell Oil Co. v. A.Z. Servs. Inc., 990 F.Supp. 1406, 1416 (S.D.Fla. 1997) (failure to include summary statement did not render notice invalid); Grotemeyer v. Lake Shore Petro Corp., 749 F.Supp. 883, 889 (N.D.Ill. 1990) (same); Martin v. Texaco, Inc., 602 F.Supp. 60, 63 (N.D.Fla. 1985) (concluding that the jury had to determine whether a franchisor's failure to include the summary statement deprived the franchisee of notice as contemplated by the PMPA); Brown v. Magness Co., 617 F.Supp. 571, 574 (S.D.Tex. 1985) (no inadequate notice for failure to attach summary statement and for delivering notice to the franchisee's attorney, rather than the franchisee). Sun Oil's other cited cases are simply inapposite.
Motive is irrelevant to section 2802(c) grounds. Hinkleman v. Shell Oil Co., 962 F.2d 372, 377 (4th Cir. 1992), as amended (July 21, 1992) ("[T]he statute provides grounds that are per se reasonable for terminating a franchise, provided notification requirements are met, rendering further inquiry into pretext unnecessary."); Glenside W. Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1109 (D.N.J. 1991) ("[A]ny ulterior motive it might have had to terminate the Franchise Agreement is irrelevant to a wrongful termination claim by a franchisee under the PMPA when, as here, the termination is made for an improper act of the franchisee."); see also Grotemeyer v. Lake Shore Petro Corp., 749 F. Supp. 883, 890 (N.D. Ill. 1990). --------
With respect to Buchanan's second argument, the court acknowledges that the Proposed Lease contains the same terms that Buchanan provides to its other franchisees. The evenhanded treatment of dealers sometimes evinces good faith.See, e.g., Lippo, 802 F.2d at 981 (upholding summary judgment against franchisee where the franchisee was unable to "show that he was treated differently from other dealers"); Toor Petroleum, Inc. v. Marathon Petroleum Co. LP, No. 11 C 461, 2011 WL 4352614, at *4 (S.D. Ohio Sept. 16, 2011) (denying a preliminary injunction where the plaintiff had been offered "the same terms consistently extended by Marathon in the normal course of business"); Grotemeyer v. Lake Shore Petro Corp., 749 F. Supp. 883, 891 (N.D. Ill. 1990) (noting that offering similar contract terms to third parties "is strong evidence that . . . proposed changes . . . were nondiscriminatory," and that the terms were therefore not designed as a pretext for nonrenewal). However, in citing Lippo, Toor, and Grotemeyer, Buchanan misapprehends the nature of GTO's claim.
This makes sense since Esso has made it clear that it was withdrawing from the market in accordance with the PMPA. See, e.g., Grotemeyer v. Lake Shore Petro Corp., 749 F.Supp. 883, 888-89 (N.D.Ill. 1990). As portentous as form may be in the PMPA, it should not prevail over substance.
Where it is clear that these charges are being uniformly applied, and not for the purpose of preventing renewal and/or converting to company-operated stations, and where the decision(s) to pass these charges through to the lessee-dealer franchisees serve a legitimate business purpose, Defendant has met its burden. See, e.g., Grotemeyer v. Lake Shore Petro Corp., 749 F. Supp. 883, 891 (N.D.Ill. 1990) ("The relevant inquiry here is whether the . . . proposed changes reflected a good faith effort to achieve a legitimate business purpose. . ."). 27.