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EZEMA, INC., et al.,
LLC, et al.,


Civil Case No. 2015 CA 003168 B

Calendar IV
Judge John M. Mott

This District of Columbia Antitrust Act1 and Retail Service Station Act2 (RSSA) class
action comes before this court on defendants Capitol Petroleum Group, LLC, Anacostia Realty,
LLC, and Springfield Petroleum Realty, LLCs 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.
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


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

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.
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
partys pleading, but the [non-moving] partys 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 Natl 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 witnesss 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

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).
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, 120607 (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

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 Berhanus 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. 23, 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 Berhanus 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 proceedingsthat Berhanus 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

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, 29091 (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 sellers
marketing agreement. This provision would appear to comport with the RSSAs general
remedial purpose, as it prevents a distributor from evading 36-303.01s 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.

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. Berhanus affidavit, however, does not even
address whether plaintiffs have a marketing agreement with defendants, much less refute
Mamos 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, LLCs motion for summary judgment is GRANTED IN PART.

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

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