Al's Service Center, Inc. [III] v. BP Products North America, Inc., 599 F.3d 720 (7th Cir. 3-26-10)

BP sent plaintiff dealer a notice of termination in 2003, which was scheduled to become effective 10 days before a threatened condemnation of part of the retail premises. Although BP demanded that it quit the premises in 2005 when the condemnation took place, the dealer remained in place. In dicta, the Court found that an alleged temporary failure to supply the location (over 12 days, eight of which were alleged to be consecutive) in June of 2006, even if it actually occurred, did not amount to a termination; however, it indicated that the failure to replace the sign could have constituted constructive termination, and questioned the apparent "skepticism" of the Supreme Court in Mac's Shell Service v. Shell, 176 L. Ed. 2d 36 (2010), that action short of an actual termination could be a proper ground for violation of the PMPA (a finding, it said, which creates a "big loophole" in the Act). The plaintiff obtained an injunction to perpetuate the franchise shortly after the alleged supply interruption in 2006. All of the foregoing, while interesting, was mooted by the fact that the franchise was still intact in 2008, when the plaintiff abandoned the business, which finding was supported by the fact that the plaintiff never complained to the district court that BP was violating the injunction. Accordingly, it was held that BP did not violate the PMPA.