Source: CSP Daily News Exclusive

Next Round for Getty Realty

Court Delays Decision on Getty's Request to Stop Jobber Supplying its Connecticut Stations

By Carole Donoghue | CSP Daily News | June 20, 2012

JERICHO, N.Y. — A federal judge has refused to grant Getty Realty an injunction to stop a jobber from delivering unbranded fuel to about 34 of the company's stations in Connecticut–at least for the time being.

Judge Alvin W. Thompson said he would take Getty's request under review, but strongly hinted that legal teams representing all sides should attempt to work out their differences or, alternatively, set up a schedule with the court for a speedy trial on the issues, CSP Daily News sources who attended the hearing.

Getty Realty CEO David Driscoll declined to discuss the judge's decision to reserve his ruling for a later date, saying it was against Getty's policy to comment on active litigation.

Getty asked for a restraining order and preliminary injunction to bar Tuxis-Ohr Fuel Inc. from dropping any more loads at the sites, estimating that the jobber is supplying about 45,000 gallons a day to the dealers operating the stations. Getty claimed that the Tuxis sales are causing it "immediate and irreparable harm" – it is being deprived of the means to comply with leak detection rules and the ability to ensure that the fuel meets octane standards and has not been adulterated. Tuxis and the dealers are violating federal and state trade mark laws, Getty said.

Getty also asked for a court order to stop two of the dealers from selling "unauthorized" product at their stations. The company claims that the dealers, Montville-based Renaldi's Getty LLC and HSTN LLC of Enfield, are deceiving the public by "palming off" unbranded gasoline as BP fuel.

Getty said it told Tuxis to cease and desist on May 17, but the jobber continues to supply the stations.

The dealers deny they are deceiving consumers and submitted photographs of signs and pump decals that stating that the fuel they are selling is not BP product. Even so, Getty claims that BP's distinctive trade dress at the outlets is still discernible. The dealers told the court that their debranding efforts far exceed industry standards and so complied with applicable state and federal law. Getty cannot show there was any customer confusion at all, they said.

Tuxis, based in Meriden, Conn., has been delivering to the stations at the request of the dealers operating the sites. The dealers were sub-tenants of Getty Realty's former tenant, Getty Petroleum Marketing Inc., (GPMI) which is in Chapter 11 bankruptcy and turned back the stations to Getty on April 30 this year. GPMI's rejection of the leases effectively terminated the subleases signed with the dealers, Getty Realty contends.

Getty Realty subsequently assigned the sites and supply rights to Chestnut Petroleum Distributors, a New Paltz, N.Y.-based distributor, which joined Getty in the request for a temporary restraining order through NECG Holdings Corp., the company Chestnut set up to lease the stations from Getty.

Getty offered the dealers month-to-month licenses that would allow them to stay on at the stations until they could sign new subleases with Chestnut, but the dealers have rejected the Chestnut agreement. The dealers say that the Getty agreements would require them to deliver the stations back to Getty clean of all contamination – they would even have to resolve problems which arose long before their involvement at the stations. The dealers claim a right to stay in the premises as independent franchised dealers, under both state and federal law. Signing Chestnut's agreements, meanwhile, would require them to become commission agents and would allow Chestnut to set their pump prices for them. They say they want to remain as independent franchised dealers, protected by the federal Petroleum Marketing Practices Act (PMPA).

In court documents, Getty maintains that it owns the stations, tanks and pumps being used by Renaldi's, HSTN and most of the other dealers whom it claims are now illegally occupying the stations. The dealers have been making monthly rent payments to Getty, but the company previously returned their checks because they would not sign the new agreements with Chestnut or Getty. In a new development, some dealers say Getty is now cashing the checks. Getty says that is not the case, and says the dealers should be sending their checks directly to Chestnut.