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EXHIBIT A

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

REPLY MEMORANDUM IN SUPPORT OF DEFENDANT EXXONMOBIL OIL CORP.S MOTION TO DISMISS In the Attorney Generals Opposition to ExxonMobils Motion to Dismiss its Complaint,1 it becomes clear that the AG has no legal or factual basis to have sued ExxonMobil, given that the RSSA has jurisdiction only over marketing agreements entered into between a distributor and a retail dealer. Notwithstanding the rhetoric, the AGs Opposition is chock-full of direct

admissions and implicit concessions that ExxonMobil does not presently have agreements marketing or otherwisewith retail dealers, that there is no legal basis to enjoin ExxonMobils once-assigned and since-expired agreements with retail dealers, and that ExxonMobils agreements with its distributors do not violate the letter or spirit of the RSSA. The AGs effort to wrap this markedly deficient Complaint in the flag of consumer protection is not sufficient to ignore the plain language of the RSSA. Instead, the AG must identify facts that are documented and law that is grounded for its claims to proceed. Because the AGs Complaint and Opposition fail to do so, the Complaint must be dismissed as a matter of law.
1

Unless defined herein, all capitalized terms shall have the meaning used in ExxonMobils Motion to Dismiss.

ARGUMENT Through the Opposition, it is clear the parties agree that the RSSA subsection at issue here is intended to protect retail dealersnot consumersfrom distributors, and that the RSSA defines a marketing agreement as one or a combination of agreements entered into between a distributor and a retail dealer. Where the parties disagree, however, is that the AG asks the Court to (1) extend the relevant RSSA subsection to consumers based on public policy, (2) find ExxonMobil a party to a marketing agreement without it being a distributor or having any relationship with a retail dealer, and (3) deem ExxonMobils past and present nonexclusive contracts exclusive. But it is well established that the AG cannot rely on conjecture, contorted definitions, or lofty assumptions to overcome a motion to dismiss. I. THE AGS OPPOSITION FALLS SHORT OF ESTABLISHING BOTH STANDING AND ITS RIGHT TO ENFORCE THE RSSA The AGs Opposition fails to establish the AGs authority and standing to bring its claim for all the reasons set forth in Parts I-III of the CPG Defendants proposed Reply Memorandum, which ExxonMobil joins in its entirety.2 II. NO MARKETING AGREEMENT EXISTS A. There Is No Marketing Agreement Under the RSSA Where the AG Admits ExxonMobil Is Not Currently a Distributor

The AG recognizes, as it must, that the RSSA requires the agreement alleged to be in violation of the statute to be between a distributor and a retail dealer. Oppn at 5 (emphasis added). The AG admits, as it must, that ExxonMobil is not currently a distributor under the RSSA and has not been one since at least 2009. See id. at 35 (Exxon was originally a distributor[ ] until 2009); see also Compl. 20 (alleging ExxonMobil was a distributor)

The CPG Defendants reply memorandum is attached to their Motion for Leave that was filed concurrently with ExxonMobils.

(emphasis added). The AG also seems to concede, by failing to oppose, that ExxonMobils reading of the RSSAs definition of distributor in the present tense is correct and that there is nothing in the RSSA, legislative history, or case law suggesting the definition applies retroactively. See ExxonMobils Mot. at 8. Yet the AG brazenly contends that it does not matter whether or not Exxon is technically a distributor under the RSSA. See Oppn at 34 (emphasis added). Given that the AG provides no authority as to why the Court should adopt a position that clearly contravenes a plain reading of the statute, the Court must dismiss this argument out of hand. And while the AG implores the Court to interpret and construe the RSSA liberally (id. at 6, 39), no amount of liberal construction or creative interpretation can get around the express definitions found in the RSSA. See, e.g., EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1282 (7th Cir. 1995) (noting that [a] liberal construction does not mean one that flies in the face of the structure of the statute and finding that the district court erred by not dismissing a defendant who did not meet the statutory definition of employer, and thus, could not be held liable under the Americans with Disabilities Act (ADA)). As the AG has no colorable justification or legal explanation as to how the Court can enjoin a defendant that the RSSA does not have jurisdiction over, the Court must dismiss the Complaint on this basis alone.3

In response to ExxonMobils statute of limitations argument, the AG notes that the RSSAs limitation period only applies to actions brought by retail dealers, and that, in any event, Section 12-301 provides that such limitations do not apply to actions brought by the District. See Oppn at 34-35. The AG should not be able to have it both ways. If the AG is allowed to bring a claim under the RSSA despite the statutes lack of any express grant to do so, it should also have to abide by the limitations period proscribed therein. Moreover, 12-301 expressly says that [t]his section does not apply to actions brought by the District of Columbia government. (emphasis added). The AGs claim under the RSSA is brought under a separate division, title, and chapter of the D.C. Code.

B.

There Is No Marketing Agreement Where ExxonMobil Has No Current Agreements With a Retail Dealer

As noted above, there is no dispute that the RSSA requires the agreement alleged to be in violation of the statute be between a distributor and a retail dealer. See, e.g., Oppn at 5 (emphasis added). Without privity between these two parties, the RSSA cannot claim

jurisdiction. Given that ExxonMobil does not have an agreement with a retail dealer, the AG tries to establish jurisdiction over ExxonMobil by saying, first, that ExxonMobil had agreementsat one point in the pastwith retail dealers; and second, that ExxonMobils agreements with its distributors, who in turn have agreements with retail dealers, satisfies the RSSAs requirements. Neither argument has merit. First, there is no legal authority for the proposition that because ExxonMobil had marketing agreements with retail detailers at one point in the past, which ExxonMobil assigned to codefendants and have since expired,4 the Court can enjoin ExxonMobil today for violating the RSSA.5 See id. at 35. Indeed, such an argument is absurd. See, e.g., Lans v. Digital Equip. Corp., 252 F.3d 1320, 1328 (Fed. Cir. 2001) (recognizing that a court cannot enjoin [a party] from infringing an expired patent); Kenyon Intl Emergency Servs., Inc. v. Malcolm, No. H-09--3550, 2010 WL 452745, at *5 (S.D. Tex. Feb. 8, 2010) (refusing to enjoin defendants where their agreements with plaintiff had expired). Because the Complaint otherwise fails to allege that ExxonMobil has a current marketing agreement with a retail dealer in D.C. or anywhere else in the United States, it must be dismissed.
4

Although this fact is not necessary for ExxonMobil to prevail on its Motion to Dismiss, the AGs Complaint and Opposition fail to inform the Court that the franchise agreements between ExxonMobil and D.C. retail dealers have expired and are no longer in effect.
5

Even if these agreements were still in effect, the fact that they were marketing agreements does not mean they were unlawful. As discussed below in Part III and in the CPG Defendants briefing, these old agreements were entirely proper, did not violate the RSSA then, and cannot be held to violate the statute now.

The AGs fallback connect-the-dots argument is equally unavailing. Under the RSSAs combination of agreements provision,6 the AG contends that the combination of ExxonMobils distribution agreements with codefendants Anacostia and Springfield along with the former and since assigned supply contracts ExxonMobil had with D.C. retail dealers, creates an unlawful marketing agreement. See Oppn at 35-36. But nothing in the RSSA supports finding that this combination of agreements creates a contractual relationship between ExxonMobil and a retail dealer. To the contrary, the RSSA straightforwardly defines a marketing agreement as a 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 . . . . 36-301.01(7) (emphasis added). In other words, while a collection of agreements can

constitute a marketing agreement, the RSSA requires each of those agreements to be between a distributor and a retail dealer.7 Indeed, the AGs citations (at 38) to TVT Records v. The Island Def Jam Music Grp., 412 F.3d 82 (2d Cir. 2005) and Corpus Juris Secundum undermine its position. In TVT

Recordsa case interpreting New York contract lawa Heads of Agreement and Side Letter Agreement were viewed as one contract because they effectuated the same result of producing
6

While the AG spends several pages discussing what types of agreements can be combined under the RSSA to form a marketing agreement, this argument is a red herring that misses the mark. See Oppn at 36-38. ExxonMobil does not dispute that the RSSA allows a combination of agreements to constitute a marketing agreement, but this can only mean multiple agreements between the distributor and the retail dealer. The AGs convoluted interpretation would allow a potentially endless upstream chain-linking of agreements, perhaps drawing in unaffiliated oil refiners or owners of drilling rights. This is not what the RSSA contemplates.
7

The AG agrees that the RSSA should be given its ordinary meaning (at 37), but argues that ExxonMobils interpretation selective[ly] cites the RSSA and ignores the reference to other agreement[s] and collateral or ancillary agreements that can make up a marketing agreement. Oppn at 37 (citing 36-301.01(7), 36-303.01(a)). But this language is entirely consistent with the RSSA and ExxonMobils interpretation: a marketing agreement can be made up of a combination of agreements as long as those agreements are entered into between a distributor and a retail dealer. Moreover, even if the statute was ambiguous, the AG provides no support to read these terms as broadly as the AG demands. Indeed, the AG concedes that the RSSAs legislative history does not address the phrase other agreement and is likewise silent concerning collateral or ancillary agreements. See id. at 37.

and releasing a music album, specifically referenced each other, and one agreement would be meaningless without the other. See TVT Records, 412 F.3d at 89. Here, however,

ExxonMobils old franchise agreements were not executed as part of the same transaction as ExxonMobils assignment and distribution agreements with Anacostia and Springfield, do not reference each other, and do stand on their own. This, of course, makes sense. At the time those franchise agreements were in effect, ExxonMobil had no need for a contractual arrangement with Anacostia or Springfield because it served as the distributor. The AGs reference to CJS

confirms this, noting that separate written agreements between different parties, which serve different purposes and do not refer to each other, are not intended to be interdependent and do not combine to form a unitary contract. 17A C.J.S. Contracts 401 (2013) (emphasis added).8 III. EXXONMOBILS DISTRIBUTION AGREEMENTS WITH ANACOSTIA AND SPRINGFIELD DO NOT VIOLATE THE RSSA BECAUSE THEY ARE EXPRESSLY NONEXCLUSIVE Despite the fact that ExxonMobils agreements on their face make clear that they do not create exclusive relationships with their distributors in a way that would violate the RSSA, the AG asks the Court to disregard the plain language of those agreements because the effect of the agreements still serve to chill competition. See Oppn 39-40. Once again employing a connectthe-dots theory, the AG argues first that because ExxonMobils former franchise agreements

The AG suggests (at 39) that ExxonMobils interpretation of the RSSA elevate[s] form over substance and cites to Dege v. Milford, 574 A.2d 288 (D.C. 1990) and Kazemzadeh v. Eastern Petroleum Corp., No. 2006 CA 9077 B, 2010 WL 3843045 (D.C. Sup. Ct. 2010) to argue that the Court should interpret the RSSA liberally to find a marketing agreement on the facts of this case. Neither of these cases, however, helps the AG. In Dege, the franchisor had a current marketing agreement with the defendant, but assigned a specific righta right of first refusalto the plaintiff. See 574 A.2d at 289-90. Indeed, if the Court had allowed that right to be executed, the plaintiff (a retail dealer) would have a marketing agreement with the franchisor. Here, ExxonMobils assignments to Anacostia and Springfield reflect its complete divestiture and exit from the retail gasoline business. Moreover, in Kazemzadehunlike here the distributor (BP) had a direct contractual relationship with the retail dealers that existed at the time of suit. See 2010 WL 3843045 at 7 (noting that BP still maintains a marketing agreement under the RSSA because the cancellation and release documents only cancelled the supply agreements . . . not the deed restrictions BP maintained over the retail dealers) (emphasis in original).

with its retail dealers required the retail dealers to purchase exclusively from ExxonMobil, the assignment of those franchise agreements violates the RSSA. The AG next argues that

ExxonMobils distribution agreements with its codefendants also violate the RSSA because they prevent other distributors from supplying retail dealers with ExxonMobil-branded gas. See id. at 40 (citing Ex. D, Sec. 12(a)(3)). As to the first point, ExxonMobils assignment of its franchise agreements to Springfield and Anacostia did not set[ ] up unlawful marketing agreements under the RSSA. See id. at 40. The assignments contain no language relating to exclusivity and merely transferred ownership of franchise agreements that the Complaint fails to even allege are still in effect. See ExxonMobil Mot. at 12. Certainly, ExxonMobil cannot be enjoined for contracts it no longer controls or that have expired by their own terms. See Lans, 252 F.3d at 1328; Kenyon, 2010 WL 452745, at *5. As to the second point, ExxonMobils distribution agreements are expressly nonexclusive. In relying on section 12(a)(3) of the distribution agreement to claim ExxonMobil violated the RSSA, the AG selectively quotes from this document while wholly ignoring the fact that ExxonMobils agreements simply do not give [Anacostia or Springfield] an exclusive right in any market or geographic area to sell ExxonMobil gasoline. See ExxonMobils Mot. at 12-13 (quoting Anacostia and Springfield Distribution Agreements) (emphasis added). Further, Section 12(a)(3) merely attempts to ensure ExxonMobils products are properly represented; it has nothing to do with preventing another distributor other than Anacostia and Springfield from supplying retail dealers with gas. Indeed, ExxonMobil specifically reserves a right in the

distribution agreements to [e]stablish[ ] . . . other distributorships with distributors other than Anacostia and Springfield. See ExxonMobil Mot. at 13 (quoting Anacostia and Springfield Distribution Agreements). The AG fails to recognize this at all in its Opposition.

CONCLUSION The Court should not permit the AG to stave off dismissal of its Complaint based on an Opposition that is heavy on rhetoric, light on facts and law, and directly contradicts the plain language of the statute at issue. Accordingly, ExxonMobil respectfully requests that the Court dismiss the claims against it.

DATED: November 18, 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.

CERTIFICATE OF SERVICE I hereby certify that on this 18th day of November, 2013, a true copy of the foregoing was electronically filed and served on all counsel of record. /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 Unopposed Motion for Leave to File a Reply Memorandum in Support of its Motion to Dismiss, it is HEREBY ORDERED that Defendants Motion is GRANTED, and that Exhibit A to the Motion shall be accepted and deemed filed in this action as a Reply. Dated: November ___, 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

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