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In No. 08-240, Mac's Shell Service, Inc. v. Shell Oil Products Co. LLC, the question presented is whether a franchisee who signs a renewal agreement "under protest" and operates under the terms of the agreement may maintain a claim for "constructive nonrenewal" under the Act.
If a franchisor violates specified provisions of the PMPA, its franchisee may bring suit in federal district court. 15 U.S.C. 2805. The Act provides for a wide range of remedies, including compensatory damages, reasonable attorneys' fees and expert costs, punitive damages, and "such equitable relief" as the court deems necessary to address the statutory violation. 15 U.S.C. 2805(a), (b)(1), (d) and (e). The Act also requires district courts to grant preliminary injunctive relief preserving the status quo if the franchisee shows that its franchise has been terminated or that its franchise relationship has not been renewed, that "there exist sufficiently serious questions going to the merits to make such questions a fair ground for litigation," and that the balance of equities favors such relief. 15 U.S.C. 2805(b)(2). The PMPA preempts state law governing termination and nonrenewal to the extent such law is inconsistent with the Act. 15 U.S.C. 2806(a)(1).
3.On July 27, 2001, 63 Shell dealers filed suit in federal district court, asserting state and federal claims. The dealers principally alleged that their property leases had incorporated the rent subsidy and that the elimination of the subsidy breached those leases. Pet. App. 5-6. In addition to alleging violations of their state-law contract rights, the dealers asserted that Shell's and Motiva's conduct had violated two provisions of the PMPA. First, the dealers alleged that Shell had "constructively terminated" their franchises, in violation of 15 U.S.C. 2802(a)(1), by assigning the contracts to Motiva and eliminating the rent subsidy. Pet. App. 6. Second, the dealers claimed that Motiva's offer of new contracts without the rent subsidy amounted to a "constructive nonrenewal" of their franchise relationships, in violation of 15 U.S.C. 2802(a)(2), even though the dealers had signed new agreements "under protest." Pet. App. 6, 27.
On July 30, 2003, the dealers moved for a preliminary injunction under the PMPA. The district court denied the motion, explaining that because the dealers had "waited years before seeking preliminary injunctive relief," the court was unable to "turn the clock back" and "preserve the status quo." Pet. App. 49-50 (citation omitted).
Because in this case "the Dealers signed the new agreements 'under protest' and continued in operation under the new agreements," Pet. App. 30, the court of appeals held that they could not claim constructive nonrenewal. Were the rule otherwise, the court explained, a "franchisee [could] sign the contract and simultaneously challenge it," giving the franchisee the benefit of the contract with nothing to lose "[i]f its claims were rejected by the courts." Ibid. In the court's view, that result would violate "the balance Congress has struck" in the PMPA. Id. at 30-31.
4.The decision below undermines the PMPA's goal of establishing "a single, uniform" federal standard for termination, Senate Report 19, by prescribing a confusing and indeterminate test for deciding whether a franchisor has "terminate[d]" a franchise. The court of appeals disavowed a holding that "any material breach of the lease would necessarily be sufficient to sustain the constructive termination claim." Pet. App. 23. It indicated instead that the relevant contract breach must effect "such a material change that it effectively ended the lease, even though the plaintiffs continued to operate the business." Ibid. But the court offered no workable standard for determining whether a particular contract breach has "effectively ended" the franchise when the franchisee is able and willing to continue, for a sustained period, all its operations. Nor could the court have done so, given the essential contradiction involved in declaring "effectively ended" a franchise that is ongoing in each of its basic components.
When a franchisor does not explicitly cancel any of the three elements of a petroleum marketing franchise, its conduct can properly be said to have "terminate[d]" the franchise only if a reasonable franchisee in the circumstances would be effectively compelled to abandon one (or more) of the franchise elements, as where the franchisor's conduct forecloses any reasonable possibility that the business could be operated profitably. And a franchisee cannot reasonably claim to have been subjected to such effective compulsion unless it either (a) actually ceases that aspect of its operations or (b) promptly seeks preliminary injunctive relief preventing the franchisor from carrying out its announced intent to engage in conduct that would leave the franchisee no reasonable alternative but to abandon at least one of the franchise elements.(5) As noted, the court of appeals' view that a sufficiently material change in the conditions under which a franchisee operates can "effectively" terminate a franchise "even though the [franchisee can] continue to operate the business" under the new conditions, Pet. App. 23, provides no coherent standard for identifying a constructive termination. The appropriate inquiry must concern whether continued exercise of the franchise elements is reasonably possible. Where it is, the franchisee cannot succeed on a claim of constructive termination.
The dealers resist that plain reading of the Act on several grounds. First, they contend that the decision below creates a "Catch-22" because it forces a franchisee "to choose between accepting an unlawful and coercive contract in order to stay in business and rejecting it and going out of business in order to preserve a cause of action." Pet. 20 (citation omitted). That contention, however, ignores the Act's requirement of advance notice of nonrenewal and its relaxed standards for issuance of a preliminary injunction. A franchisee need not go out of business in order to challenge a franchisor's "take it or leave it" offer to renew on modified terms. When a franchisee believes the proposed agreement is unlawful, it may refuse the offer. A franchisor that elects not to renew in the face of such an inability to agree on new terms must generally give the franchisee 90 days notice prior to the nonrenewal. 15 U.S.C. 2804(a). During that period, the franchisee may seek a preliminary injunction under 15 U.S.C. 2805, allowing it to continue operating on the preexisting terms while the litigation proceeds. See Dersch Energies, 314 F.3d at 863.
Third, the dealers contend (Pet. 24-25) that they preserved their rights under the PMPA by signing the renewed agreements "under protest." Again, however, the PMPA affords franchisees the right to sue only to challenge an unlawful termination or nonrenewal of the franchise; the Act does not furnish them with a cause of action to seek redress for other grievances about the negotiation process or the manner in which a renewal occurred. Because the dealers renewed the franchise agreements, they had no relevant rights cognizable by suit under the PMPA to preserve. At the most, they possess state-law claims against their franchisors.
1.a. In Pro Sales, Inc. v. Texaco, U.S.A., 792 F.3d 1394 (1986), the Ninth Circuit recognized a claim of constructive nonrewal under the PMPA, holding that a franchisee that had signed a new agreement and promptly brought suit should not be deemed to have "'renewed' the franchise relationship so as to bar relief under the PMPA." Id. at 1399. The Fifth and Seventh Circuits have reached the opposite conclusion. In Dersch Energies, the Seventh Circuit "reject[ed] * * * the constructive nonrenewal theory * * * endorsed by the Ninth Circuit" in Pro Sales and held that a franchisee who signs a renewal contract cannot claim constructive nonrenewal even if the franchisee signs "under protest." 314 F.3d at 864-865. The Fifth Circuit, in Abrams Shell v. Shell Oil Co., 343 F.3d 482 (2003), found "the Seventh Circuit's reasoning in Dersch Energies to be especially persuasive" and "reject[ed] the Pro Sales approach on the same basis." Id. at 489 & n.16.(8)
The court below sided with the Fifth and Seventh Circuits. Pet. App. 30-31. The court noted that Pro Sales stands alone among circuit court decisions in recognizing a constructive nonrenewal claim and, citing Dersch Energies and Abrams Shell, concluded that "Congress intended to limit the reach of the PMPA to cases where either a notice is given or an actual nonrenewal has taken place." Id. at 28. The court therefore held that franchisees may not claim "constructive" nonrenewal where they "signed the new agreements 'under protest' and continued in operation under the new agreements." Id. at 30. 2b1af7f3a8