SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION DISTRICT OF COLUMBIA, Plaintiff, v. EXXONMOBIL OIL CORP., et al. Defendants.

Civil Action No. 13-cv-005874B Judge Craig ISCOE (Calendar 14) Next Court Date: 12/13/13 Event: Initial Scheduling Conference

MEMORANDUM IN SUPPORT OF DEFENDANT EXXONMOBIL OIL CORP.S MOTION TO DISMISS Defendant ExxonMobil Oil Corp. (ExxonMobil) respectfully submits this

memorandum of law in support of its Motion to Dismiss the District of Columbias (the Attorney General or AG) Complaint pursuant to Superior Court Rule of Civil Procedure 12(b)(6). This case should be dismissed for three principal reasons: (1) the Attorney General does not have standing or the authority to bring its claim under the Retail Service Station Act, D.C. Code 36-301.01 et seq. (the RSSA); (2) the Attorney Generals complaint fails to state a claim against ExxonMobil because ExxonMobil is not a distributor under the RSSA; and (3) ExxonMobils agreements are not the type of agreements the RSSA covers because they are neither marketing agreements with a retail dealer nor exclusive. PRELIMINARY STATEMENT This lawsuit comes on the heels of a failed two-year long antitrust investigation instigated by the D.C. Council and commenced by the Attorney General in 2011 to allegedly address perceived concerns about rising gasoline prices in the District. When legislative efforts couched 1

as measures to curtail rising gas prices did not pass, the AG launched an antitrust investigation. But by the summer of 2012, the AG conceded that competition in D.C.s gasoline market was alive and well, concluding that in many . . . parts of the city, there was no increase in the gasoline prices, and that where there was an increase, those residents had other alternatives . . . to go and get cheaper gasoline.1 The U.S. District Court for the Eastern District of Virginia validated the AGs conclusion when granting summary judgment in favor of codefendant here, Anacostia Realty, LLC (Anacostia), in an antitrust lawsuit brought by a group of D.C. and Virginia retail service station operators. See SSS Enters., Inc. v. Nova Petroleum Suppliers, LLC et al., Civ. No. 1:11-cv-1134, 2012 WL 3866490, at *3 (E.D. Va. Aug. 30, 2012) (Plaintiffs have no evidence of . . . any harm to competition in the relevant geographic markets between all competitors, or that any consumer was injured.) affd No. 12-2088, 2013 WL 3770710 (4th Cir. Jul. 19, 2013). Inexplicably, the AG now seeks to dress up its failed antitrust efforts in new clothesD.C.s RSSA. The AGs claim, howeverlike the Emperorhas no clothes. First, the AG does notand cannotsatisfy the threshold standing requirements to enforce the RSSA, and the AGs claim that the action is brought on the basis of a generalized harm to the residents and economy of D.C. is specious, at best. Indeed, by the AGs own admission in the Complaint, ExxonMobils purported wrong affects only a small minority of the gasoline stations in the District, and the Complaint is devoid of any mention of that alleged wrong causing a particularized injury to the Districts consumers. Second, the Complaint fails to establish that the RSSA applies to ExxonMobil. The

See Mike DeBonis, Joe Mamo Appears to be off the Hook in Antitrust Probe, http://www.washingtonpost.com/blogs/mike-debonis/post/joe-mamo-appears-to-be-off-the-hook-in-antitrustprobe/2012/07/13/gJQASrBriW_blog.html (last visited Oct. 7, 2013). [A] trial court may consider public documents without converting a motion to dismiss under Rule 12(b)(6) to a motion for summary judgment under Rule 56. Drake v. McNair, 993 A.2d 607, 616 (D.C. 2010).

RSSA mandates there to be a marketing agreement between a distributor and a retail dealer for it to apply. But the Complaints conclusory allegations fail to meet even the

foundational and definitional requirements needed to trigger the RSSA in the first place. The AG concedes as much, acknowledging in the Complaint that ExxonMobil is not a distributor and that it has no agreements with any retail dealer, much less any one of the D.C. retail dealers at issue. Third, to the extent ExxonMobil has any agreements that could remotely be construed relevant to the claim alleged here, the Complaint still fails as a matter of law. Specifically, because ExxonMobils agreements are with distributorsnot retail dealersand because they do not provide that the distributors have an exclusive right to sell gasoline, they do not violate the RSSA. BACKGROUND Of the approximately 107 total retail gasoline service stations currently located in the District of Columbia, at issue here are stations that ExxonMobil had, at one point, owned, alleged in the Complaint to be 27. See Compl. 1, 29. These gas stations had been run primarily by independent retail dealers subject to individual PMPA2 franchise agreements with ExxonMobil. These individual franchise agreements allowed ExxonMobil to sell them

ExxonMobil-branded gasoline. In 2008, however, ExxonMobillike many other oil refiners before itpublicly announced its intent to divest its gasoline stations in the United States, including to distributors, like Defendants Anacostia Realty, LLC and Springfield Petroleum Realty, LLC (Springfield, and collectively with Capitol Petroleum Group, LLC (CPG), and

PMPA stands for the Petroleum Marketing Practices Act, 15 U.S.C. 2801 et seq.

Anacostia, the CPG Defendants).3 After extensive negotiations, on December 19, 2008, ExxonMobil entered into an agreement with DAG Enterprises, Inc. (an affiliate of CPG) to purchase a number of gasoline stations in the D.C. metropolitan area (the Purchase Agreement). See Compl. 17. In addition to this Purchase Agreement, ExxonMobil assigned the real estate, equipment and franchise agreements for several of its D.C. stations to Defendant Anacostia on June 16, 2009 (the Anacostia Assignment), and for one D.C. station to Defendant Springfield on February 3, 2010 (the Springfield Assignment, collectively the Assignment Agreements).4 See Compl. 1819; see also Anacostia Assignment and Springfield Assignment, attached as Exs. A and B to the Declaration of Ross C. Paolino dated Oct. 7, 2013 (Paolino Decl.). ExxonMobil also entered into separate Distributor PMPA Franchise Agreements with Anacostia (the Anacostia Distribution Agreement) and Springfield (the Springfield Distribution Agreement, collectively the Distribution Agreements). These agreements gave each of Anacostia and Springfield the nonexclusive right to distribute ExxonMobil-branded gasoline to assigned stations, as well as to use ExxonMobils proprietary marks in connection with its authorized distribution activities. See Compl. 18-19; Anacostia Distrib. Agmt. 1 (a) and Springfield Distrib. Agmt. 1(a), attached respectively as Exs. C and D to the Paolino Decl. The independent retail dealers, however, were not parties to the Distribution Agreements, nor did they have any express or inherent rights in those agreements. Moreover, although the Distribution Agreements require distributors Anacostia and Springfield to purchase Products from ExxonMobildefined as ExxonMobil-branded motor gasoline and diesel fuelthe
3

See, e.g., Alan Chernoff, ExxonMobil to Sell 2,220 Gas Stations, CNN.COM (Jun. 13, 2008), http://edition.cnn.com/2008/US/06/12/exxon.mobil/index.html (last visited Oct. 7, 2013); see also Drake, 993 A.2d at 616. 4 The Anacostia Assignment identifies additional non-D.C. stations transferred pursuant to a separate agreement. Neither those non-D.C. retail stations nor that separate purchase agreement are relevant here.

agreements specifically state that ExxonMobil does not give [Anacostia and/or Springfield] an exclusive right . . . to sell the Products . . . . See Anacostia Distrib. Agmt. 1(a), (f); Springfield Distrib. Agmt. 1(a), (f) (emphasis added). In fact, ExxonMobil reserves the right to compete with both Anacostia and Springfield at gasoline stations by, inter alia, [e]stablishing . . . other distributorships with distributors other than Anacostia and Springfield. See Anacostia Distrib. Agmt. 1(f)(1); Springfield Distrib. Agmt. 1(f)(1). As a result of ExxonMobils 2008 sale of its retail service stations and subsequent divestment of its distribution business to Anacostia and Springfield, the CPG Defendantsnot ExxonMobilown and supply these gasoline stations, as well as other branded and unbranded stations in and around the District. The AG acknowledges this fact. See Compl. 1-3, 12. Further, after transferring the gasoline stations to Anacostia and Springfield pursuant to the Purchase Agreement in 2008, ExxonMobil was no longer a distributor, and did not have any ongoing contractual relationship with the independent retail dealers. The AG acknowledges the fact that ExxonMobil is not currently a distributor (see Compl. 20), and does not allege that the assigned franchise agreements are still in effect. Notwithstanding these uncontroverted facts, the Complaint loosely alleges that ExxonMobil has agreements with retail dealers that violate the RSSA by denying those dealers who purchase ExxonMobil-branded gasoline the benefits of competition. See Compl.

31-33. The Complaint, however, wholly fails to allege how any of ExxonMobils agreements fall under the scope of agreements that the RSSA is authorized to cover, or what harm has come to District residents specifically from ExxonMobils agreements. STANDARD OF REVIEW When reviewing a motion to dismiss under Sup. Ct. Civ. R. 12(b)(6), dismissal is

appropriate when it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief. Cauman v. George Washington Univ., 630 A.2d 1104, 1105 (D.C. 1993) (internal quotation marks and citation omitted). While the Court takes all factual allegations in the complaint as true, the Court is not bound to accept as true a legal conclusion couched as a factual allegation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 285, 286 (U.S. 1986). Indeed, the plaintiff is required to provide grounds for relief that go beyond labels and conclusions, or a formulaic recitation of his claim. Id. ARGUMENT I. THE AG HAS NO STANDING TO BRING SUIT AND NO RIGHT TO ENFORCE THE RSSA. The AG lacks both the statutory authority under the RSSA and parens patriae standing to bring its claim against ExxonMobil in this Court for all the reasons set forth in Parts III.A-B.1 of the CPG Defendants Memorandum in Support of its Motion to Dismiss, which ExxonMobil joins in its entirety. II. EXXONMOBIL IS NOT A PROPER PARTY, BECAUSE THERE IS NO MARKETING AGREEMENT. When the District of Columbia Council passed the RSSA in 1977, it enacted Subchapter IIIentitled Marketing Agreementsspecifically to empower independent retail dealers to be able to protect their own economic well-being against a distributor.5 See REPORT
OF THE

COMMITTEE ON TRANSPORTATION AND ENVIRONMENTAL AFFAIRS, COUNCIL OF THE DISTRICT OF COLUMBIA, ON BILL NO. 1-333, THE RETAIL SERVICE STATION ACT OF 1976, AND BILL NO. 139, THE RETAIL SERVICE STATION ACT 25-28 (1976) (hereinafter, the Committee Report), relevant excerpts attached as Ex. E to the Paolino Decl. For example, Subchapter III prohibits
5

Subchapter III of the RSSA is referred to in the Committee Report as Title II.

exclusivity provisions in gasoline supply contracts that a retail dealer has with a distributor (a marketing agreement), protects the retail dealer from arbitrary termination or nonrenewal of their marketing agreement, and ensures certain protections if the retail dealer wants to eventually sell its service station business. See D.C. Code 36-303, 36-305. Subchapter IIIs protections require a marketing agreement, which the RSSA clearly construes as any 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 where the distributor provides fuel to the retail dealer for sale, in exchange for the retail dealer receiving the right to use the trademarks or retail service station owned, leased, or controlled by the distributor. D.C. Code 36-301.01(7) (emphasis added). Simply put, these RSSA sections solely address a contractual agreement between a distributor and a retail dealer. Here, the AGs Complaint allegations fail to state a claim under the RSSA for two reasons: (1) ExxonMobil is not a distributor as defined under the RSSA, and (2) ExxonMobil has no contractual agreement of any kind with any of the alleged 27 retail dealers at issue in the Complaint. A. The RSSAs Definition of Distributor Does Not Apply to ExxonMobil.

Given that the statute requires one party to a marketing agreement be a distributor, the Complaint does not establish on its face that ExxonMobil meets the RSSAs definition of a distributor, nor can it. The RSSA defines a [d]istributor as: any person who is engaged in the business of selling, supplying, or distributing on consignment or otherwise, motor fuels or petroleum products to or through retail service stations which it owns, leases, or otherwise controls and who also maintains a marketing agreement with a retail dealer for the sale or distribution of motor fuels or petroleum products to a retail service station, whether or not such distributor owns, leases, or otherwise controls such retail service station. 7

D.C. Code 36-301.01(2) (emphasis added). Thus, ExxonMobil is only a distributor if it sells, supplies, or distributes gas to a retail service station.6 The Complaints sole attempt to classify ExxonMobil as a distributor lies in a single sentence in paragraph 20. Threadbare as it is, the sentence claims only that ExxonMobil was a distributor (Compl. 20)conceding that, at the time of the suit, ExxonMobil fails to meet the RSSAs definition of a distributor: Immediately prior to transferring its D.C. gasoline stations to Anacostia or Springfield pursuant to the Purchase Agreement, Exxon distributed gasoline directly to independent retail dealers operating gasoline stations that Exxon owned in D.C. Exxon was, therefore, a distributor within the meaning of D.C. Code 36301.01(2). Compl. 20 (emphasis added); compare with Compl. 26 (alleging that Anacostia and Springfield are distributors within the meaning of [the RSSA] (emphasis added)). The

RSSA, however, defines distributor in the present tense, and there is nothing in the RSSA itself, the legislative history, or logic to suggest that the statute applies in the retroactive manner the AG relies on. See D.C. Code 36-301.01(2) (defining a distributor as a person who is engagednot was engagedin the business of selling, supplying, or distributing motor fuels). Indeed, [u]nder D.C. law, statutes are presumed not to apply retroactively. See Metroil, Inc. v. ExxonMobil Oil Corp., 672 F.3d 1108, 1113 (D.C. Cir. 2012). The AGs allegation in paragraph 20 collapses under the weight of its own admission and destroys the foundation of the Complaints RSSA claim against ExxonMobil. Because

ExxonMobil is not a distributor, there can be no marketing agreement, and without a marketing agreement, a claim under Subchapter III of the RSSA simply cannot stand. Accordingly, the AGs Complaint must be dismissed. See, e.g. Twin Towers Plaza Tenants Assn, Inc. v. Capitol
6

The second part of the definition of a distributorthat it be with a retail dealer (D.C. Code 36-301.01(2))is addressed in Section II.B, below.

Park Assocs., L.P., 894 A.2d 1113, 1119-20 (D.C. 2006) (dismissing plaintiffs claim for violating the D.C. Rental Housing Conversion and Sale Act, because transaction at issue did not meet statutory definition of a sale); Hildebrandt v. Johanns, 422 F. Supp. 2d 250, 251-52 (D.D.C. 2006) (granting defendants motion to dismiss because defendants activity did not meet the definition of a credit transaction under the Equal Credit Opportunity Act). B. ExxonMobil Has No Agreement With a Retail Dealer.

To the extent ExxonMobil could be classified, arguendo, a distributor under the RSSA, the Complaint still fails on its face because the RSSA requires a distributor to have a marketing agreement with a retail dealer, and ExxonMobil has no agreements with any retail dealers.7 Indeed, the AG expressly contends that it is Anacostia and Springfield [who] are distributors within the meaning of [the RSSA]. See Compl. 26; see also id. 12 (The CPG Defendants . . . have been engaged in the business of transporting, distributing, selling, and marketing gasoline in and around D.C.). At best, ExxonMobil has agreements with distributors, who in turn have agreements with retail dealers. No amount of creative pleading of an upstream contractual arrangement can make ExxonMobils agreements a marketing agreement under the RSSA, and the Complaints attempts to avoid this reality fail. 1. ExxonMobils Old Franchise Agreements.

The AG seemingly yet mistakenly relies on the fact that prior to ExxonMobil transferring its D.C. gasoline stations to Anacostia and Springfield, ExxonMobil was a distributor, and the

Further, Section 36-303.06(c) of the RSSA states that [a] civil action brought by a retail dealer against a distributor pursuant to this section shall be commenced within 2 years after such cause of action arose. If ExxonMobil is considered a distributor for purposes of the AGs claim because it acted as a distributor [i]mmediately prior to transferring its D.C. gasoline stations to Anacostia [and] Springfield pursuant to the Purchase Agreement (Compl. 20), then the AG should have already brought his claim. Specifically, the AG alleges that the assignments to Anacostia and Springfield were completed on June 16, 2009 and February 3, 2010, respectively. See Compl. 18-19. At the latest, the AG should have brought its claim against ExxonMobil sometime before February 2012well over a year ago.

past franchise agreements it had with the retail dealers have been and are marketing agreement[s] within the meaning of [the RSSA]. Compl. 20-22. But the AGs argument succumbs to the same flaw as its claim that ExxonMobil is a distributornamely, it is attempting to use stale facts as a basis for a current claim. In the first instance, the AG has not even alleged that these franchise agreements are still in effect. Even so, the agreements

ExxonMobil had with retail dealers when it was a distributor are not marketing agreements for purposes of the AGs RSSA claim. The AGs own statements make clear that ExxonMobil sold these stations and assigned them to Anacostia and Springfield between 2009 and 2010. See Compl. 17-19. As John Adams once said in the trial propelling him to prominence, [f]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence. 2. The Combination of the Assignment Agreements and the Wholesale Distribution Agreements.

The AGs final argument to make ExxonMobil a party to a marketing agreement, and thus subject to the RSSA, is even more strained. According to the Attorney General, the triple combination of (1) ExxonMobils Assignment Agreements transferring its gasoline stations to Defendants Anacostia and Springfield, plus (2) Defendants Anacostias and Springfields own retail distribution agreements with the 27 at-issue service stations, plus (3) ExxonMobils current wholesale Distribution Agreements with Anacostia and Springfield, all together create a marketing agreement ensnaring ExxonMobil under the RSSA. See Compl. 21-22. Put more simply, the AG appears to argue that if Anacostia and Springfield have supply contracts with the retail dealers, and ExxonMobil has contracts with Anacostia and Springfield, and ExxonMobil used to have supply contracts with the retailers years ago, then ExxonMobil therefore currently has contracts with the retail dealers. The AGs arithmetic does not add up. 10

Although the details in the Complaint are scant, the AG seems to be banking on the fact that the RSSA can cover a combination of agreements entered into between a distributor and a retail dealer. See D.C. Code 36-301.01(7). Once again, there is nothing in the RSSA, the legislative history, or the caselaw to remotely suggest, much less support, that a combination of agreements can mean the tangled net of agreements that the AG proposes. To the contrary, the statutes plain language should control. See, e.g., Leonard v. District of Columbia, 794 A.2d 618, 625 (D.C. 2002) (The language of a statute should be construed according to its plain meaning in its usual sense.). That is, combination of agreements merely refers to the one or more agreement(s) that a distributor has with a retail dealer. Indeed, even if the language was ambiguous, the RSSAs legislative history explains that a marketing agreement may be composed of one or more of the following agreements: a retail service station lease, a trademark agreement, and a motor fuel supply agreement. Comm. Rep. at 49. This comment arguably makes no sense unless both the distributor and retail dealer are the actual parties to each one of those agreements, and in privity of contract with one another. See, e.g. Carter v. State Farm Mut. Auto. Ins. Co., 808 A.2d 466, 472 (D.C. 2002) (court will not read into an unambiguous statute language that is clearly not there, as doing so would transcend the [courts] judicial function) (internal quotation marks and citation omitted). III. EXXONMOBILS DISTRIBUTION AGREEMENTS WITH ANACOSTIA AND SPRINGFIELD ARE NOT EXCLUSIVE AND THUS DO NOT VIOLATE THE RSSA. In order to violate the RSSA, the marketing agreements at issue must operate to exclude competition, which is not the case here. The Complaint relies on Sections 36-303.01(a)(6) and (a)(11) of the RSSA, which provide that [n]o marketing agreement shall: (6) Prohibit a retail dealer from purchasing or accepting delivery of, on consignment or otherwise, any motor fuels, petroleum products, automotive products, or other products from any 11

person who is not a party to the marketing agreement or prohibit a retail dealer from selling such motor fuels or products, provided that if the marketing agreement permits the retail dealer to use the distributors trademark, the marketing agreement may require such motor fuels, petroleum products, and automotive products to be of a reasonably similar quality to those of the distributor, and provided further that the retail dealer shall neither represent such motor fuels or products as having been procured from the distributor nor sell such motor fuels or products under the distributors trademark; (11) Contain any term or condition which, directly or indirectly, violates this subchapter. D.C. Code 36-301.01(a)(6), (a)(11) (emphasis added). As an initial matter, none of the ExxonMobil agreementsthe old franchise agreements, the Assignment Agreements, or the Distribution Agreementsexclude competition. First, ExxonMobils old franchise agreements with the retail dealers (which the AG fails to allege are still effective) do not violate the RSSA for all of the reasons set forth in Part III.B.2 of the CPG Defendants Memorandum in Support of its Motion to Dismiss, which ExxonMobil joins in its entirety. Second, ExxonMobils Assignment Agreements are each two-page documents that merely assign to Anacostia and Springfield ExxonMobils right, title, and interest in D.C. gasoline stationsthe agreements contain no additional restrictions whatsoever that act to prohibit the retail dealers from purchasing gasoline from a party other than Anacostia and Springfield in violation of Section 36-303.01(a)(6) and (a)(11). See Anacostia Assignment; Springfield Assignment. Lastly, ExxonMobils current wholesale Distribution Agreements with Anacostia and Springfield do not create an exclusive relationship for the retail dealers. In the first instance, the Distribution Agreements are between ExxonMobil and Anacostia, and ExxonMobil and Springfield, respectively. The retail dealers are not parties to these Distribution Agreements. Moreover, while the Distribution Agreements require Anacostia and Springfield to purchase ExxonMobil-branded gasoline and diesel fuel (defined as Products) from 12

ExxonMobil, the agreements make it explicitly clear that they do not give [Anacostia and/or Springfield] an exclusive right in any market or geographic area to sell the Products . . . . See Anacostia Distrib. Agmt. 1(a), (f); Springfield Distrib. Agmt. 1(a), (f) (emphasis added). In other words, the distributors are not restricted from purchasing non-ExxonMobil gas from other sources, and even if they are buying ExxonMobil gas from ExxonMobil, neither Anacostia nor Springfield hold the exclusive right to sell it to any retail dealer. Indeed, ExxonMobil specifically reserves the right in each agreement to compete with them and [e]stablish[ ] . . . other distributorships with distributors other than Anacostia and Springfield. See Anacostia Distrib. Agmt. 1(f)(1); Springfield Distrib. Agmt. 1(f)(1). CONCLUSION For the foregoing reasons, ExxonMobil respectfully requests that the Court dismiss the AGs Complaint.

DATED: October 7, 2013

Respectfully submitted, By: /s/ Christina G. Sarchio Christina G. Sarchio (D.C. Bar 456254) David F. Smutny (D.C. Bar 435714) Ross C. Paolino (D.C. Bar 1004366) Orrick, Herrington & Sutcliffe LLP Columbia Center 1152 15th Street, N.W. Washington, D.C. 20005-1706 Telephone: (202) 339-8400 Facsimile: (202) 339-8500 E-mail: csarchio@orrick.com, dsmutny@orrick.com, rpaolino@orrick.com Attorneys for Defendant ExxonMobil Oil Corp.

13

Exhibit A

Exhibit B

SPRINGFIELD PETROLEUM REALTY, LLC ASSIGNMENT OF PMP A FRANCHISE AGREEMENTS

THIS ASSIGNMENT OF PMPA FRANCHISE AGREEMENTS (this "Assignment") is effective as of February 3, 2010 between ExxonMobil Oil Corporation, a New York corporation (hereinafter "Assignor") and Springfield Petroleum Realty, LLC, a Delaware limited liability company (hereinafter "Assignee") (collectively, the "Parties"). In consideration of the covenants contained in this Assignment, the Sale and Purchase Agreement dated as of January 6, 2010, as Amended and Restated as of January 26, 2010 between Assignor and Assignee (the "January 26th SPA"), and the Purchase and Sale Agreement dated as of October 28, 2009 between Assignor, Exxon Mobil Corporation, and Anacostia Realty, LLC, as first assigned to DAG Petroleum Jobbers, Inc., and subsequently assigned to Assignee (the "Assigned SPA," and together with the January 26th SPA, the "SPA") Assignor, for valuable consideration received from Assignee, does hereby grant, bargain, convey, assign, transfer and deliver to Assignee all of Assignor's right, title, duties and interest (including any options) in, to, and under certain Petroleum Marketing Practices Act ("PMPA") Franchise Agreements attached to this Assignment as Schedule T (collectively, the "PMPA Franchise Agreements"). Assignee hereby: (a) accepts this Assignment; (b) assumes and agrees to faithfully perform and observe all of Assignor's obligations arising out of the PMPA Franchise Agreements after the date of this Assignment in accordance with and subject to all the terms, covenants and conditions of the PMPA Franchise Agreements and all applicable laws, including the PMPA; and (c) in addition to the obligations of Assignor under the SPA, Assignee shall indemnify and hold Assignor, its parent, subsidiaries, and affiliates and their respective owners, officers, directors, agents, employees, divisions, contractors, invitees, servants, representatives and assigns harmless from and against each and every loss, cost, claim, obligation, damage, liability, payment, fine, penalty, cause of action, judgment (including court costs, expert witness fees, and attorneys' fees awarded as part of a judgment), lien, or expense, including, but not limited to, reasonable attorneys' fees and other litigation expenses that arise under, or are incurred on account of any breach or claim of breach of obligations under the PMPA Franchise Agreements that arises from acts or omissions occurring after the date of this Assignment. After the date hereof, upon Assignor's request in connection with any request to Assignor from any Governmental Authorities, Assignee shall provide for and permit access to the Property, at no cost to Assignor, as Assignor and its employees, agents, and contractors may require. Assignor agrees to cooperate with Assignee in connection with such access including: (i) providing Assignee with copies of any notices or other correspondence from such Governmental Authorities concerning such access; (ii) providing Assignee with the scope of work intended to be completed by Assignor, if any; and (iii) providing Assignee the opportunity to participate in any meetings with such Governmental Authorities at which Assignor or its advisors are present concerning the nature and scope of the work. Assignee's obligations under this Assignment shall be incorporated into any assignment of PMPA Franchise Agreements by Assignee and any sublease of the Property entered into by

Assignee as a lessee/sublessor. Any tenant of Assignee or its Affiliates shall be required to fulfill all obligations of Assignee set forth in this Assignment. In the event Assignee fails to comply with its obligations under this Assignment then, in addition to any rights and remedies available to Assignor at law or in equity for such breach, Assignee hereby agrees to indemnify, defend and hold Assignor harmless from any Claims made against Assignor by any persons or entities including, without limitation, any Governmental Authorities, incurred by Assignor or assessed against Assignor as a result of Assignee's failure to comply with its obligations under this Assignment. With respect to Site #20718 (8526 Leesburg Pike), the parties acknowledge and agree that: (1) the assignment and assumption contemplated hereunder shall expressly include an assignment and assumption of all documents incorporated by reference into the PMP A Franchise Agreement, including, without limitation, the DOSS Additional Provisions to PMP A Franchise Agreement (and documents incorporated by reference therein) and any and all terms thereunder (including, without limitation, Article VIII) and the Competitive Allowance Agreement, and (2) Assignor's entitlement to reimbursement of certain Dealer Franchise Improvement Funds pursuant to Article VIII of the DOSS Additional Provisions to PMPA Franchise Agreement is secured by that certain Deed of Trust and Security Instrument dated as of November 2, 2006 and recorded in the Land Records of Fairfax County, Virginia, at Book 18890, Page 2167, which recordable instrument is being assigned to Assignee pursuant to that certain Assignment of Deed of Trust and Security Agreement dated as of even date herewith. This Assignment shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to its rules on the conflicts of law. This Assignment shall become effective between Assignor and Assignee on the date first above written. This Assignment shall bind and inure to the benefit of Assignor and Assignee and their respective successors and assigns. [signatures to follow]

IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be duly executed as of the day and year first written above.

EXXONMOBIL OIL CORPORATION A New York Corporation

By: Name: D. 1. S lamack Title: Agent and attorney in Fact

SPRINGFIELD PETROLEUM REALTY, LLC a Delaware limited liability company By: SPRINGFIELD SPE, INC. a Delaware corporatio its Managing ..

SPRINGFIELD PETROLEUM REALTY, LLC SCHEDULE T PMP A FRANCHISE AGREEMENTS

No

Site
20718

Street
8526 Leesburg Pike 6661 Arlington Blvd 8861 Richmond Hwy 7336 Little River Turnpike 8715 Lee Highway 5239 Rolling Rd 2230 New York Avenue NE

Franchisee
Schmitz Service Inc Edsall Park Auto Care, Inc. Woodlawn Station Inc Sindhu, Inc CRS Oil, Inc Kings Park Auto Care Inc B & H Enterprises Inc

FA Start Date
04/01/06 10/29/07 04/01/09 01/14/08 08/04/08 04/01/08 06/01/09

FA End Date
03/31/16 10/31/10 03/31/12 01/31/11 08/31/11 03/31/11 05/31/12

2 3 4 5 6 7

22690 25374 25467 25468 26581 27988

NOTE: Site 20718 is a DOSS site.

Exhibit C
Redacted Confidential Under Seal

Exhibit D
Redacted Confidential Under Seal

Exhibit E

I ,ip

Council ofthe District of Columbia Memorandum

Hobert A. i,uias, Secretary to the Council ' " " ^ ^ ' ^ - Anthony M. Rachal, StatLDirector November 16, 1975 V . A Coittee Report o. 1 on B i .03. .-333 ana I-3, r

"wor/LsSoS?:^s^Lfiot^rth'r'"^^ ^ ^ ^ ^ >*i=
39 of the TransDor)-,?fS f *^ ^^3== 20 through I have attached these for ?;..,? "^"^ "losing, report o. 1 on B^i^f^o'" l-tlTlZ l^-^V.^^ ' ^ " " '

^^ Valerie vfrfr^L^^J^!^^'.^-',! counsel Barry, Legislati

ve Support Coordinatoi

V E A C o m m i t t e e R e p o r t No. i on B i n K T

Council Ofthe District-^f Col^mbV""^ '"^

City HaU, 14th and E Streets, N.W. ZillfLFloor 638.

^"^Gs^rnment Code 137-3806

To Council Members '-Date ^^4.^'v ^erry .. M o _ , ,^ ^ W ^ ^ , ' ^^^^^"'^"'^onmtiitfc^; September 10, 1976

-a -viJo^Li^-rijsi^r"

^"''j^' Bill No. 1-333 ^ H . . anci Bill Nn 1 00 Retail Service q ^ - = ^"O. 1-39. the ..Hetan SeJJic^'^W- J - of 1976..,
rr, O

- - = that t^S h?r!'d:-ot"p\Sf~iv'th1reSn^^L"| recoA, B. C. D. E. P. G. H. I. J. K. 5AB5I_0P_C0NTENTS Legislative History Purpose and Effect " " " " " " " " . . . . Committee Hearin^^" "'.' -..... "'-... .pp. 2-3 committee Zln'^TntT^ ^"^^'^^ Comm^At: J . "J'" ' PP- 3^35 Section by Section f ^ T - r ....... """"PP35-39 As Amended. " Analysis of Bin No "i" ;;r ' '" "PP" 4047 Executive Comm^nt^ l l ' " " " " - " - . ^l ^ t . .' ,, 48-60 fiscal Impact. " '- = .... ""'PP. 61-62 Appendices A - Ac;::'";*-..... G"'"""" .""""""PP. " " 'PP- ^^--64 Bill No. 1.^38 Bill No. 1.^39' As Tn?'''?"^^<^ (APPENDIXH)'"""--""PP- ^^^^^^^

V.A c o i t t e e P r i ^ t " ^ ? / ^ " ? ; ? , / - - ^i:::^::^:

? l -

J-3l7.!-75

- 25 i v :

condxtions. These provisions should prevent retail service station closings because of the inability of the petroleum companies to find qualified substitute dealers. Second, the Committee believes that testing and evaluation procedures, to the extent that these are actually undertaken, can be successfully undertaken at independently operated retail service stations without much difficulty. Third, the Committee believes that the operation of new retail' service stations, high investment stations, and "non-full service retail service stations" can be successfully handled by independent operators through the establishment of proper incentive or profit sharing programs. It should be noted that there are very few high investment stations xn the District of Columbia and that the establishment of new retail service stations does not appear likely at this time. Title. I of Bill No. 1-333 also prohibits the discriminatory use of voluntary allowances and equipment rental charges and the discriminatory allocation of motor fuel supplies during shortages. See Section 3-10 3 of Bill No. 1-333. These provisions are designed to promote adequate and assured product supplies, reasonable anc". riradictable retail service station and equipment rental charges, and adequate profitability for independently operated retail service stations. TITLE II The primary purpose to be served by enactment of Title II of Bill No. 1-333 is to afford independent motor fuel dealers operating under marketing agreements increased legal protection against arbitrary, unreasonable, and discriminatory terminations, cancellations, and nonrenewals of their marketing agreeinents by distributors, whether the underlying reason for such terminations, cancellations, or non-renewals is the distributor's desire to use the retail service station for his own account or some other unjustified reason. Although a number of Federal and District of Columbia statutes, includinq'.The-Sherman Aet. 15 U S.C. 1-7, asn^^jended (1890), The Clayton Act, 15 U.S.C. 12-27, as amended (1890.), The Federal Trade Commission Act, 15 U.S.C. 41-51, as ametoded {i91'4), The no^of Emergency Petroleum AllocatiSFTHFTTs' U.S.C. 751 (1973), and the regulations promulgated pursuant thereto.

^^

o o
O

- 26 -

with some legal protection,, the Committee believes that

3S;a^SIaS-te'''r.otiSSL^r^J^re1arSi^.^?-T; P ? ,

^^^~^'
o

^?hS?^?h'e'^fIt^?L=L1;^e?f,rL^ij ^ ^ "
!LSeih":^io"%?ir

in=?,?a?n'\'^ '' governed by the general lawJofco^Jract

s^efc ix'^Sd^-ji;-- ^.^^rri

equity or are preempted by Federal or District of ri?viK^

o o

marketing agreement is essentially a "Con?ra?t ;rAS;sion" ILt l^T^^^^^ ^ standard form contract drafted by the " distributor with very little or no input from the retail

cSSrfA.^? ^^^"^^^ ^^^ "^^^ remedies^rovided by general contract laws, and to reserve a unilateral contrL? ?iSi to terminate, cancell, not renew, or modify a maJkitS? agreement on short notice. As a resu??? retJirdealerl are generally denied the traditional pemgatJies and protections afforded to independent bSsinSsmln In the event of an arbitrary, unreasonable, or discriminatory -termination,, ^cancellation, SJ nSn-^Lewal of a marketing agreement or other abuse of the detail dealer by his distributor, the retail dealer LgeniJally

- 27 -

only left with equitable remedies - the distribin-n,- > , = effectively eschewed the retail dealer's leaJi^^^^,^^'''-"^ Although some courts have allowed Jilor^aJioL of itTI agreements in order to imply a covenant fh? J marketing agreements could not be t S r L n a S d SanceUed S n n f "^'"^

c i ^ p S y ? ' " ' ^ - " - " ^ - financially ^iwerful=pltro!eu. In addition to basic fairness, there is anntho,

marketing agreement has^b^jr^eLi^atil'^Ji^Jixr^^^;,

o o o o

ii hnfiS^ compensation for his hard years of work in building up a profitable business. ihe distribntn. may agree to repurchase the retail dealer's stnJk^^S equipment, often at a greatly reduced price ThLTf.

is not enS:ieT?o^\-:-s^:rs:fS^! ;jii-rfj-^' STL^ Jr"='^^ ^"^^" " ^ ^ ^ Oistr*S^f^?^!S^S in

the flit'oiill Purpciesf ' - " ^ ' " ^"^=^^^' " " ^
vSs

- 28 -

(1)

to grant increased legal protect-ir.r, * dealers which they are unlbtlt^ L^ ''^'^^il themselves without sJJerelv L^^"^^^""" ^ ^ ating basic freedom SrcSntrac??'"^ ^ ^^^"^^"^

(2)

(3)

aSai-rL^Sf e^iiSJ^^s-ji- --^

(4) O C? M O

unr::f;nabli'\S'disc?iSiat^' '^' -^^trary, cancellation;, and nSn-renSSals'^of'mf ^ ' ' " ^ ' mentsand other abuses o J r S i l L ^ f ^^^^"^ agreepractices by distributors; and ^^^^^^^ ^^^ unsavory (5) to enhance the independence of retai- d..the operation of their i e i A i i .I ^eaxers in reducing the control f h S d t L K ' ' ' - ^ ^ stations by the retail prices and mJrkftinS'n^'^^f? "^^^ exert on pendently operated sta??n^!^K^ Practices on inde-

o o o
r

keting agreLiSt fnd Snju^tifJ;r?h ""T of "^"term" ' ^ " " mation, cancellatinn ^5 ^ threats
enhance falr'J^^\'^:st'Son,pe?i:Sn"1a'??' "^^^^^' of retail dealers to tailor thii ' ^ ^^^ ability the neeas, preferences iSJ ?Perations to local o u s t o L r s ' ^"^ oonveniences of their ^itle II Of Bill HO. 1-333 achieves these purposes b y

'"

f g S n l
agreement

an1^p^\^?%LnfISj-t^lS^i" j-or^ation.

t i ^ dJ^lli ;rLl=to%\^^i? I> t^*-"-"--"-'""" (Section 4 - 2 0 2 ^ ' ''" = marketing

" -

" ' ?in^wal"^?'a'::LL\U"M?e"i.=^r^""""- -

a t i o n , cancelKtion L ^ o n ! r e S L S f ^\"''=''' * ^ " or more of the grounds s p e S i ? ? e r ? i t^ "f^^^ " "= and i s executed in a c c o S J n c e ^ f t i = ^ i*5^=^^"on reguirements (Sections J ^ t o H b r ^ d K ^ I S ^ t l , " " ' ^ " ' - - 5 " -

"

?ransl2? his m a r \ 1 t i n a " ' " " "'"'

by the diJi^iSu^or'lsL^L'nT^o's^r''"' * ^^''^"^^

~ 29 ~

-m

Edicts \nd\qL'SnfJ^

. ^^^^--^-^3

?it f^i'' ^"^ reasonable price anJ t " " ^ ^^^^^^ retail dealer the full value Jf J ^? P^^ ^he

'''

?-"-^'-"t%rbuMi,f--LJ,^egal cause of action

"-iSir? fnd-
O

-"aStLTS i S - i - f ts^:?L

'\?.^o^^s1^is-i^-a^L1^n1%r1em;n^^-.f-"-e sales quotas or to rejuije th^^ *. Peration, and purchase certain Pr:dL\^^",s\':tL"%^\^^r^ * the ground thItit^is'^doSHi'i^f ^'^'^ challenged Title IT r .

v.r-o o o o o

3-Lr-?L- -

e ^ es-

^ ^ ^ ^ ^

^-

F??bu^o-.rb-Ld " S i r i e l - - - - ^
fin-'f^-^^^^^ationsicompirwiJh t h ^ """^^ ^^^ ^heir

maliciously destroy theTopeJtv S 1^.^^"'^' wilfully or

Pr?he-?o^-^--41^^^^^^^^^^
i ^ ^ ^ ' t f neSe%\-ry*S'me\:\\%^\ff ^ " ' " S:;fhe"'fLt-^^" g oonaitions. Ld co"n^JL:^\"i:L^Lrp^?e"?e^-":|3=' " " ^ ^

_ 49 provided for in the marketing agreements, to extend or renew the distributor - retail dealer relationship; marketing agreements which have a fixed term or expiration date, but which do not expressly provide for renewal or extension; and marketing agreements which do not have a fixed term or expiration date. Subsection (f) defines the term "goodwill". it is noted that tEe~term "goodwill" is an amorphous legal concept. This subsection does not provide a fixed monetary standard, formula, or criterion for determing the value of a retail dealer's "goodwill". This subsection, in conjunction with existing legal precedents, provides guidance to the parties to a marketing agreement and, in the event that a judicial action is commenced pursuant to Section 4-206 of this bill, to the courts in determining the value of a retail dealer's "goodwill". To the extent that this subsection is inconsistent with existing legal precedents, this subsection shall supersede such legal precedents. Subsection (g) defines the term "marketing agreement". "Marketing agreements" may be comoosed of one or more o^ the following agreements: a retail service station lease, a trademark agreement, and a motor fuel supply agreement. A retail dealer may,at his option, treat a termination, cancellation, or non-renewal of any component agreement as a termination, cancellation, or non-renewal of ti-- wrole "marketing agreement". Subsection (h) defines the term "merchantable product".

K;S-

I;-'

o
^,

TO

o o o o

Subsection (i) defines the term "motor fuel". Subsection (j) defines the term "person". Subsection (k) defines the term "petroleum product". Subsection (1) defines the terms "refiner", "producer", and "manufacturer"." It is noted that these terms also include, but are not limited to, any parent company, any entity controlled by a "refiner", "producer", or "manufacturer", any subsidiary, any affiliate, and any entity which controls a "refiner", "producer" or "manufacturer", as provided for in subsection (i) of this section. Subsection (m) defines the term "retail dealer". The term "retail dealer", as it is defined in this subsection, is applicable only to Title II of this bill. it is noted
that the same, person may b a "retail dealer" in one rela-^ion-

shxp and a "distributor" in another relationship.

CERTIFICATE OF SERVICE I hereby certify that on this 7th day of October, 2013, a copy of the foregoing documents was (i) electronically filed with the Clerk of the Court and served via the Courts electronic filing system, and (ii) sent via U.S. mail to the following counsel of record: Nicholas A. Bush Public Advocacy Section Office of the Attorney General for the District of Columbia 441 4th Street, N.W. Washington, D.C. 20001 Counsel for Plaintiff, the District of Columbia and Alphonse M. Alfano Bassman, Mitchell & Alfano, Chartered 1707 L Street, N.W., Ste 560 Washington, D.C. 20036 Counsel for Defendants Capitol Petroleum Group, Anacostia Realty, LLC, and Springfield Petroleum Realty, LLC

/s/ Christina G. Sarchio Christina G. Sarchio

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION DISTRICT OF COLUMBIA, Plaintiff, v. EXXONMOBIL OIL CORP., et al. Defendants. Civil Action No. 13-cv-005874B Judge Craig ISCOE (Calendar 14) Next Court Date: 12/13/13 Event: Initial Scheduling Conference

PROPOSED ORDER UPON CONSIDERATION of Defendant ExxonMobil Oil Corp.s Motion to Dismiss, pursuant to Superior Court Rule of Civil Procedure 12(b)(6), it is HEREBY ORDERED that Defendants Motion is GRANTED. This action is HEREBY DISMISSED WITHOUT PREJUDICE. Dated: October 7, 2013 ___________________________ Judge Craig Iscoe Superior Court of the District of Columbia Copies to: Christina G. Sarchio David F. Smutny Ross C. Paolino Orrick, Herrington & Sutcliffe LLP 1152 15th St., N.W. Washington, DC 20005 Alphonse M. Alfano Bassman, Mitchell & Alfano, Chartered 1707 L. Street, N.W., Ste. 560 Washington, D.C. 20036 Nicholas A. Bush Catherine Jackson Public Advocacy Section Office of the Attorney General for the District of Columbia 441 4th Street, N.W. Washington, D.C. 20001