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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION

EZEMA, INC., et al.,

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Plaintiffs,

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Civil Case No. 2015 CA 003168 B

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Calendar IV

v.

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Judge John M. Mott

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SPRINGFIELD PETROLEUM REALTY,

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LLC, et al.,

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Defendants.

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ORDER

This District of Columbia Antitrust Act 1 and Retail Service Station Act 2 (“RSSA”) class

action comes before this court on defendants Capitol Petroleum Group, LLC, Anacostia Realty,

LLC, and Springfield Petroleum Realty, LLC’s motion for summary judgment; plaintiffs Terrefe

Berhanu, Ethio, Inc., and Ezema, Inc.’s opposition; and defendants’ reply. For the reasons stated

herein, the court grants the motion in part.

Background

The Complaint alleges the following pertinent facts. Defendants are gasoline wholesalers

who supply Exxon-branded, Shell-branded, Valero-branded, and other brands of gasoline to over

sixty percent of the gasoline service stations in the District of Columbia. Plaintiffs are retail

sellers of gasoline who sell defendants’ products. Defendants and defendants’ jointly-owned and

operated companies use their business acumen, market power, and bullying tactics to compel

retail sellers, including plaintiffs, to purchase gasoline from them exclusively at

artificially-inflated prices. Defendants’ practice of requiring sellers to enter into exclusive

dealing arrangements has not only prevented retail sellers from seeking lower-priced gasoline

1 See D.C. Code §§ 28-4501, et seq. (2012 Repl.).

2 See D.C. Code §§ 36-301.01, et seq.

from other distributors, but has also effectively barred distributors of minor-brand and unbranded

gasoline from entering the District of Columbia market. The defendants deny these allegations.

Standard

To prevail on a motion for summary judgment, the movant must demonstrate, based upon

the pleadings, discovery, and any affidavits or other materials submitted, that no genuine issue as

to any material fact exists and that the movant is entitled to judgment as a matter of law. Super.

Ct. Civ. R. 56 (c). The non-movant then assumes the burden of establishing that there is a

genuine issue of material fact in dispute. Smith v. Swick & Shapiro, P.C., 75 A.3d 898, 901

(D.C. 2013). The non-movant “may not rest upon the mere allegations or denials of the adverse

party’s pleading, but the [non-moving] party’s response, by affidavits or otherwise provided in

this Rule, must set forth specific facts showing that there is a genuine issue for trial.” Super. Ct.

Civ. R. 56 (e). When considering a motion for summary judgment, the trial court must view the

pleadings, discovery materials, and affidavits or other materials in the light most favorable to the

non-movant. Johnson v. Washington Gas Light Co., 109 A.3d 1118, 1120 (D.C. 2015).

“[S]ummary judgment is an extreme remedy which should be granted only where ‘it is

quite clear what the truth is.’” Kuder v. United Nat’l Bank, 497 A.2d 1105, 1107 (D.C. 1985)

(quoting McCoy v. Quadrangle Dev. Corp., 470 A.2d 1256, 1258 (D.C. 1983)) (further citation

omitted). For this reason, the trial court should not grant summary judgment based on the

uncorroborated testimony of an interested witness or under other circumstances where the court

may need to assess a witness’s credibility. See id. The court must refrain from making

credibility findings or weighing evidence at the summary judgment stage. Anderson v. Ford

Motor Co., 682 A.2d 651, 653 (D.C. 1996). Instead, “[t]he evidence of the non-movant is to be

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believed, and all justifiable inferences are to be drawn in his favor.” Id. (quoting Fry v. Diamond

Constr., 659 A.2d 241, 245 (D.C. 1995)) (further citation omitted).

Analysis

Defendants assert that plaintiffs lack standing to bring their antitrust claims. To establish

standing, a plaintiff must allege that the plaintiff has suffered an injury attributable to the

defendant that is capable of being redressed by a favorable court decision. See Friends of Tilden

Park, Inc. v. District of Columbia, 806 A.2d 1201, 1206–07 (D.C. 2002). In an antitrust action,

the plaintiff must also show that the plaintiff has suffered an “antitrust injury,” “which is to say

injury of the type the antitrust laws were intended to prevent and that flows from that which

makes defendants’ acts unlawful.” See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S.

477, 489 (1977) (discussing standing in context of Sherman Act claim).

The Complaint alleges that plaintiffs have suffered economic injuries as a result of

defendants’ alleged anticompetitive conduct, namely, defendants’ insistence on entering into

exclusive dealing arrangements with plaintiffs and other gasoline vendors. Plaintiffs allege that

the exclusive dealing arrangements harm competition because they prevent plaintiffs and

similarly-situated retailers from shopping for lower cost minor-branded and unbranded gasoline.

Defendants do not argue that plaintiffs’ allegations are insufficient to establish standing.

Instead, defendants argue that plaintiffs lack standing because they are not, in fact, retail sellers

of gasoline and thus have not sustained a legally cognizable injury. In support of this contention,

defendants have introduced the affidavit of Eyob Mamo, the principal owner and CEO of each of

the defendants, in which Mamo attests that plaintiffs are not service station operators; rather,

Mamo claims that plaintiffs merely lease two service stations in the District of Columbia from

his company, Landmark Petroleum Suppliers, LLC (“Landmark”), and sublease the stations to

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independent contractors who conduct businesses such as automotive repairs, out of the service

stations. Mamo states that Landmark alone operates the gasoline business at both service

stations and that plaintiffs receive no profits or other compensation derived from gasoline sales.

In response to defendants’ assertion that plaintiffs are not retail sellers of gasoline and

have never purchased gasoline from defendants, plaintiffs have come forward with the affidavit

of plaintiff Terrefe Berhanu. Notably, nowhere in Berhanu’s affidavit does Berhanu state

directly that he or plaintiffs are retail sellers of gasoline or have ever purchased gasoline from

defendants. Instead, Berhanu declares that defendants have “had substantial business dealings

with Plaintiffs as gasoline station operators,” have “paid money to Plaintiffs related to the sale of

gasoline,” and have “engage[d] with me and Plaintiff companies concerning our gas station

business,” and he claims that plaintiffs “are … engaged in the operation of our D.C. gas

stations.” (Berhanu Aff. ¶¶ 2–3, 6.)

The court finds that a genuine dispute of material fact exists as to whether plaintiffs are,

in fact, retail sellers and thus have standing. Here, plaintiffs have produced Berhanu’s affidavit,

in which he states that plaintiffs have had business dealings with defendants related to the sale of

gasoline. While the wording of the affidavit is somewhat unclear and vague, the court finds—

accepting plaintiffs’ evidence and drawing all justifiable inferences therefrom in plaintiffs’ favor,

as the court must at this stage in the proceedings—that Berhanu’s affidavit establishes that a

genuine factual dispute exists as to whether plaintiffs are gasoline vendors.

Defendants also contend that they are entitled to summary judgment on plaintiffs’ RSSA

claim because the specific provision of the RSSA that plaintiffs allege defendants have violated,

D.C. Code § 36-303.01, requires that plaintiffs and defendants be parties to a written “marketing

agreement” and, as defendants claim, the parties have never entered into a written marketing

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agreement with each other. Plaintiffs respond that the statute provides that a marketing

agreement may be either oral or in writing.

The District of Columbia Council enacted the RSSA to rectify what it perceived as a

gross imbalance in power between gasoline distributors and retail sellers of gasoline. See Dege

v. Milford, 574 A.2d 288, 290–91 (D.C. 1990). To this end, the Council imposed controls on

marketing agreements between distributors and gasoline vendors, which the Council noted had

historically been disadvantageous to retailers. Id. Section 36-303.01 provides that all marketing

agreements must be in writing and prohibits a distributor from including in a marketing

agreement any term requiring a retail seller to purchase motor fuels and other petroleum products

exclusively from the distributor. The RSSA defines “marketing agreement” as follows:

[A]ny written agreement, or combination of agreements, including any contract, lease, franchise, or other agreement, which is entered into between a distributor and a retail dealer and pursuant to which … [t]he distributor agrees to sell, supply, or distribute motor fuel to the retail dealer for the purpose of engaging in the retail sale of such motor fuel at a retail service station ….

D.C. Code § 36-301.01 (7)(A) (emphasis added). The RSSA also provides, however, that for the

purposes of that § 36-303.01 only, “the term ‘marketing agreement’ shall also include any oral or

written collateral or ancillary agreement.” Id. § 36-303.01 (a) (emphasis added).

The language of the statute is plain. Under §§ 36-303.01 (a) and -301.01, any marketing

agreement must be in writing.

For the narrow purposes of § 36-303.01, however, any verbal

collateral or ancillary agreement may be deemed a part of the distributor and retail seller’s

marketing agreement. This provision would appear to comport with the RSSA’s general

remedial purpose, as it prevents a distributor from evading § 36-303.01’s requirements by

entering into a valid written marketing agreement that complies with the RSSA while

simultaneously maintaining an unwritten collateral agreement that violates § 36-303.01.

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To establish a prima facie RSSA claim, plaintiffs must show that they have a marketing

agreement with defendants. Even if plaintiffs were correct that the RSSA does not require that

they be parties to a written marketing agreement, the court finds that defendants have

demonstrated that they are entitled to summary judgment because they have shown that it is

undisputed they were not parties to any marketing agreement, oral or otherwise, with plaintiffs.

Mamo attests that none of the defendants has a marketing agreement or any other contractual,

leasehold, or business relationship with plaintiffs. Berhanu’s affidavit, however, does not even

address whether plaintiffs have a marketing agreement with defendants, much less refute

Mamo’s assertion, and plaintiffs have not come forward with any evidence whatsoever regarding

the existence of such an agreement. Consequently, the court finds that it is appropriate to enter

summary judgment in defendants’ favor on plaintiffs’ RSSA claim.

Therefore, it is this 10th day of March, 2016, hereby

ORDERED that defendants Capitol Petroleum Group, LLC, Anacostia Realty, LLC, and

Springfield Petroleum Realty, LLC’s motion for summary judgment is GRANTED IN PART.

COPIES TO:

Michael G. McLellan, Esquire Alphonse M. Alfano, Esquire John M. Luchak, Esquire Via CaseFileXpress

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Esquire John M. Luchak, Esquire Via CaseFileXpress 6 The Honorable John M. Mott Associate Judge (Signed

The Honorable John M. Mott Associate Judge (Signed in Chambers)