Of the District of Puerto Rico, sitting by designation. * 

# UnitedStates C ou rt o f App eals

For th e First C ircuit

No. 05-2771 FRANCIS MARCOUX, ET AL., Plaintiffs,

MAC'S SHELL SERVICE, INC.; CYNTHIA KAROL; JOHN A. SULLIVAN; AKMAL, INC.; SID PRASHAD; RAM CORPORATION, INC.; J&M AVRAMIDIS, INC.; THREE K'S, INC.; STEPHEN PISARCZYK, Plaintiffs-Appellees,

v . SHELL OIL PRODUCTS COMPANY LLC; MOTIVA ENTERPRISES LLC;

SHELL OIL COMPANY, INC. Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge]

Before Torruella, Howard, Circuit Judges, and Delgado-Colón, District Judge. *

Paul D. Sanson, with whom Vaughan Finn, Karen T. Staib, and Shipman & Goodwin LLP were on brief, for appellants. John F. Farraher, Jr., with whom Gary R. Greenberg, Louis J. Scerra, Jr., and G r e e n b erg Traurig, LLP were on brief, for appellees.-2-

Richard C. Godfrey, P.C., with whom Andrew A. Kassof, Benjamin W. Hulse, and Kirkland & Ellis LLP were on brief, for BP Products North America Inc., amicus curiae.

April 18, 2008The Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801-2806 1(the "PMPA"), defines "franchise" as the collection of agreements relating to three elements: the lease of the premises, the license to use the franchisor's trademark, and the agreement governing the supply of branded motor fuel. Id. § 2801(1). These three elements -3- HOWARD, Circuit Judge . Defendants-appellants Shell Oil Company, Shell Oil Products Company ( c o l lectively, "Shell"), and Motiva Enterprises appeal jury verdicts against them on several claims relating to their treatment of plaintiff s-appellees (the "Dealers"), franchisees and operators of Shell-branded service stations. Shell and Motiva (together, "the defendants") challenge the legal basis for verdicts against them under a federal statute designed to protect franchisees, as well as the verdicts under Massachusetts state law. Addit i o n ally, they appeal the jury's damages determinations as without sufficient basis in the evidence. We affirm in part and reverse in part. Facts We recite the facts in the light most favorable to the jury ' s v e r d i c t . S e e R o d r i g u e z - T o r r e s v . C a r i b b e a nF o r m s M f r ., Inc., 399 F.3d 52, 56 (1st Cir. 2005).

Shell maintained a network of franchisees in Massachu s e tts. Plaintiffs were eight of these franchisees. In 1998, Shell, Texaco, and Star Enterprises formed defendant Motiva, and Shell transferred the franchise relationships to that entity, assigning its rights a nd duties under the relevant contracts to Motiva. Shortly thereafter, Motiva replaced the Variable Rent

1are sometimes referred to as the "statutory elements of the

franchise." -4- Program ("VRP") with t h e S pecial Temporary Incentive Program ("STIP"). Each of these programs (collectively, the "Subsidy") provided for reduction of the c ontract rent through sales of gasoline; once the specified threshold gallonage was sold in a given month, the contract rent for the next month would be discounted by a certain amount for every gallon sold in excess of tha t t h r eshold. The threshold amount and the discount amount changed from time to time. The Subsidy had been in effect since 1982; it was renewed in an annual notice to franchisees, although its ter m s explicitly provided for cancellation with thirty days' notice. Various representations were made to the Dealers to the effect that the Subsidy or something like it would always exist, the co n t r a c t rent was to be disregarded, and the cancellation provision was only intended to be invoked in a situation like a war or an oil embargo. Nevertheless, having given the required notice, Motiva ended the STIP on January 1, 2000, terminating the Subsidy. Without the Subsidy, the Dealers paid much more rent.

Motiva also offered new leases as the old leases expired. The new leases calculated rent d ifferently than the old leases, resulting in a further increase in rent.

In accordance with their fuel supply contracts, the Dealers were charged a wholesale price for gasoline known as the-5-

Dealer Tank Wagon price (the "DTW price"). The fuel supply contracts were open price term c o n t r acts: the contracts were silent as to price, and one party set the price unilaterally. This price was set by the defendants, who calculated it by assessing the street prices of other competing gasoline stations in the area, and reducing those prices by the taxes levied on gasoline and an Estimated Industry Margin to approximate the wholesale price of the defendants' competitors. Proceedings Below

Several franchisees, along with an unincorporated association called the Shell Dealers Defens e G roup (the "Defense Group"), filed for injunctive and declaratory relief as we l l as damages on June 6, 2000. Compl., Tsaniklides v. Shell Oil Products Co., 00-CV-11295. When the Defense Group was found to lack standing, a motion was made to add its members as individual plaintiffs. In denying that motion the district court indicated in a margin order, "[Plai n t i f f s m ay file a new case which may be deemed to be related." The individual franchisees filed a new suit on July 27, 2001, and the original suit was voluntarily dismissed on August 10. The new suit was assigned to the same district judge. The cases of New Hampshire and Rhode Island plaintiffs in the new action were transferred to those districts. From the sixty-four Massachusetts plaintiffs in the new suit, ten plaintiffs were chosen to go f o r w a r d
. One of those settled on the eve of-6-

trial and another lost at summary judgment. One plaintiff of the remaining eight, Mac's Shell Service, Inc., operated two stations that were sometimes treated as separate plaintiffs. Therefore, eight plaintiffs representing nine stations proceeded to trial.

The Dealers sued u n der a variety of theories. First, they contended that the Subsidy had been incorporated into the property leases, although the written leases p u r ported to be integrated contracts under Massachusetts law. They claimed the amended contracts were then breached when Motiva eliminated the Subsidy. Under the Dealers' theory, this breach gave rise to two distinct claims: a state cau s e o f action for breach of contract and a claim under the PMPA that Shell had improperly terminated the franchises when Shell assigned the franchise agreements to Motiva and Motiva terminated the Subsidy. Because no actual termination occurred, the Dealers proceeded under a theory of "constructive termination." Similarly, they claimed Motiva had "constructively nonrenewed" the franchise relatio n s h ips in violation of the PMPA (even though the franchises were in fact renewed) because the new contracts changed the rent-cal culation method and increased the rent, along with other objectionable changes. Finally, the Dealers argued that Motiva failed to set prices for gasoline in good faith, as required for open price term contracts under Massachusetts law.

The defendants unsuccessfully moved for dismissal on all constructive termination claims and the constructive nonrenewal-7-

claims of two plaintiffs on the ground that they were time-barred. They also moved for a j u d g m e n t as a matter of law on all claims. Following a jury verdict against them on all claims, they properly renewed this motion. They moved as well for a new trial and to set aside the jury's damages awards. The defendants now appeal the denial of all of these motions. The PMPA Congress enacted Title I of the PMPA to " r e m edy the disparity in bargaining power between franchisors and franchisees." S. Rep. No. 95-731, 95th Cong., 2d Sess. 18; see also Four Corners Serv. Station v. Mobil Oil Corp., 51 F.3d 306, 310 (1st Cir. 1995). Because franchisees claimed that this unequal power was often wielded through arbitrary or discriminatory termination or nonrenewal, or threats of termination or nonrenewal, the PMPA aimed to remove this potent weapon from the franchisors' arsenal. S. Rep. No. 95-731, at 17 ("Numerous allegations have been made before Congressional committees investigating petroleum marketing problems that t e r minations and non-renewals, or threats of termination or non-renewal, have been used by franchisors to compel franchisees to comply with marketing policies of the franchisor."); id. at 18 ("[T]ermination of franchise agreements during the term as a remedy for contract violations has been repeatedly utilized."). The "PMPA attempts to level the playing field by restricting the grounds uponThe PMPA is concerned not only with termination of a franchise 2 agreement, but also with a franchisor's failure to renew such an agreement when it expires. Although the constellation of agreements (real property leases, fuel supply agreements, licenses to use franchisor's trademark) that m a k e u p the franchise are definite in term, the "[reasonable expectations of the parties to a motor fuel franchise are that the relationship will be a continuing one." Id. This, of course, encourages franchisees to invest in their franchises and to build up goodwill that benefits both parties. -8- which a franchisor can assert a unilateral termination or nonrenewal of a franchise." Id. 2

The PMPA makes a distinction betwee n a "franchise" and the "franchise relationship." The franchise is a set of definite agreements for 1) lease of the premises, 2) the right to purchase gasoline for resale, and 3) the right to use the franchisor's trademark. 15 U.S.C. § 2801(1). "Franchise relationship" refers
to the respective obligations of the franchisor andf r anchisee created by a franchise. Id. § 2801(2). The legislative history of the PMPA makes clear that "franchise" and "franchise relationship"

w e r e distinguished to drive home the fact that the franchise relationship survives the expiration of the agreements underlying the franchise. See S. Rep. No. 95-731, 95th Cong., 2d Sess. 30 ("The term 'franchise relationship' is util i z e d to avoid any contention that because the 'franchise' does not exist t h e re is nothing to renew."). The structure and history of the PMPA emphasize Congress's view that th e f ranchisees have a reasonable-9-

e x p e c tation that the franchises would be renewed and that the relationships would continue.

Accordingly, the PMPA forbids termination of a franchise or nonrenewal of a franchise relationship except under enumerated circumstances and with proper notice. See 15 U.S.C § 2802(a) (nonrenewals and terminations generally prohibited); id. §§ 2802(b)(2) - (3) (grounds for termination and non-renewal); id. § 2804 (notice requirements). The PMPA provides a cause of action to franchisees who suffer termination or nonrenewal i n violation of the rel e v a n t s ections. Id. § 2805(a). As long as the action is brought within one year of the termination or nonrenewal complained of, id. § 2805(a)(1), the franchisee may seek preliminary injunctiv e r e l ief, id. § 2805(b)(2), damages, id. § 2805(d), and "such equitable relief as the court determines is necessary," id. § 2805(b)(1). The PMPA mandates that preliminary relief "shall" be granted if the plaintiff shows 1) termination or nonrenewal and 2) "sufficiently serious questions g o i n g to the merits" that are "a fair ground for litigation," and the court determines 3) that the balance of hardships tips in favor of granting the injunction. Id. § 2805(b)(2). In all private civil actions for termination or nonrenewal, it is the franchisee's burden to show termina t i o n or lack of renewal. Id. § 2805(c).-10- Standard of Review
We r e v i e w t h e d e n i a l o f j u d gm e n t a s a m a t t e r o f l a w de novo as to issues of law. See Rodriguez-Torres, 399 F.3d at 57. As to matters of fact, we view the evidence in the light most favorable to the verdict, asking only whether a rational jury could on the basis of that evidence find as the jury has. See id. We review a denial of a motion for a new trial for "a manifest abuse of discretion." Unit e d S t a t e s v. George, 448 F.3d 96, 101 (1st Cir. 2006). We "will order a n e w t r i a l o nly if the verdict is against the demonstrable weight of the credible evidence or results in a blatant miscar r i a g e of justice." Whitfield v. MeléndezRivera, 431 F.3d 1, 9 (1st Cir. 2005) (internal quotation omitted). We will uphold a ju r y a w a r d i f it is a result of "any rational appraisal or estimate of the damages that cou l d b e b a s ed on the evidence before the jury." Data Gen. Corp. v. Grunman Sys. Support Corp., 36 F.3d 1147, 1172 (1st Cir. 1994) (quoting Anthony v. G.M.D. Airline Servs., 17 F.3d 490, 493 (1st Cir. 1994)). Because it is complex and requires some procedural background, we discuss the applicable standard of r e v i e w for the statute of limitations claim within the discussion of that issue."[N]o such action shall be maintained unless commenced within 3 1 year after the later of-- (1) the date of termination of the franchise or nonrenewal of the franchise relationship; or (2) the date the franchiso r fails to comply with the requirements of section 102 or 103." 15 U.S.C. § 2805(a). In the light of our disposition of the constructive nonrenewal 4 claims as a whole, it is unnecessary to complicate this analysis with the defendants' further claim that two of the lease renewals are also time-barred on the same theory. The Dealers assert, as they have since their opposition to the 5 motion to dismiss, that this resolution of the motion to amend was -11- Statute of Limitations The PMPA contains a one-y e a r statute of limitations. 3 The district court found, and the defendants here do not contest, that the cause of action for constructive termination arose on January 1, 2000, when Motiva terminated th e Subsidy. The de f e n d a n t s c l a i mt h a t a l l o ft h e c o n s t r u c t i v e t e r m i n a t i o nc l aims are time-barred because this action was not filed until almost nineteen months later, on July 27, 2001. T h e Dealers point out 4 that i nd i s m i s s i n gt h e i rm o t i o nt o b e a d d e da s p l a i n t i f f s t o t he old action, the district court gave them leave to file a new action "which may be deemed to be related" to the original complaint, and that the first action was not dismissed until after the second was filed. The defendants filed a motion to dismiss for failure to state a claim on which relief might be granted, citing the lapse of time and the PMPA's statute of limitations. This motion was denied. 5the result of a compromise regarding discovery vis-à

- v i s the new

parties. At oral argument, the defendants denied ever agreeing to such a solution.
We note that this issue was disposed of below in the district 6 court's denial of a motion to dismiss. The parties skirmish about wheth e r such a denial may even be appealed after a jury trial. Where a denial of a motion for summary judgment is predicated on a genuine dispute over issues of material fact, such a denial is not normally reviewable in this circuit after a "full-dress trial." Lama v. Borras, 16 F.3d 473, 476 n.5 (1st Cir. 1994). The Dealers argue, with reason, that this would apply a fortiori to a denial of a 12(b)(6) motion. See Bennett v. Pippin, 74 F.3d 578, 585 (5th Cir. 1996) ("When the plaintiff has prevailed after a full trial on the merits, a district court's denial of a Rule 12(b)(6) motion becomes moot."). But here the question is one of law -- whether relation back can be applied outside of the strict confines of Rule 15(c )
. We think it likely that this changes the analysis, but because we ultimately hold that relation back was appropriate, it makes no difference: even assuming that the issue was properly preserved, the statute of limitations argument fails. We express no view as to whether in the general case a denial o f a 1 2 ( b)(6) motion may be appealed after a jury trial; we move on to discuss -12- Our review of the record indicate s t hat the district court denied the motion to add t h e i ndividual plaintiffs only because it granted the plaintiffs a right to file a new action that related back. We further conclude that had the district court allowed the motion to amend, the amen d e d pleading would have related back under Federal Rule of Civil Procedure 15. I n t he light of this, two powerful reasons lead us to uphold the district court's resolution of this issue: first, all the purposes of Rule 15(c) are satisfied, if not its letter; and second, the district court was in a better position when it placed the case in this posture than we are now to assess whether the interests of justice are served by permitting this relation back. 6the relation-back iss u e o n ly because we think it important to

consider whether the district court ac t e dproperly in acting out s i d e t h e l e t t e r o f t h e F e d e r a l Ru l e s o f C i v i l P r o c e dure. In conducting this analysis, we apply de novo review to the pure legal question. Finding, as we do, that as a matter of law such relation back is within the power of the district court, we then review the decision to grant relation back f o r abuse of discretion. The finding of facts necessary to that conclusion we review for clear error. -13-

Federal Rule of Civil Procedure 15(c) p r o v ides that an amended pleading may be deemed to "relate back" for statute of limitations purposes to the date of the pleading if certain conditions are met. The defendants rightly point out that Rule 15

concerns amended pleadings, not new pleadings in separate actions. "Rule 15(c) simply does not apply where, as here, the party bringing suit did not seek to 'amend' or 'supplement' his original pleading, but, rather, opted to file an entirely new [action] at a subsequent date." Neverson v. Bissonnette, 261 F.3d 120, 126 (1st Cir. 20 0 1 ) ( noting that a dismissal without prejudice leaves the plaintiff "in the same situation as if [the] first suit had never been filed" for purposes of Rule 15(c)). We note that this case differs from Neverson in that here the dismissal of the previous action did not occur until after the new pleading was filed, and we note further that the district court expressly suggested a new action be filed at the very moment it denied leave to amend the complaint in the first action.

Acknowledging that the letter of Rule 15 is not met here, we conclude that the rule nonetheless does provide some guidance.We no t e a l s o t hat the record is replete with delays by the 7 defendants, and to that extent their equitable claim to the benefits of a speedy process is attenuated. -14- Rule 15(c) is "intimately connected with the policy of the statute of limitations." Fed. R. Civ. P. 15(c), advisory committee note. The purpose of statutes of limitations is to avoid the difficulties inherent in litigating matters long past, and to provide repose to potential defendants regarding such matters. See Nelson v. County of Allegheny, 60 F.3d 1010, 1014 (3d Cir. 1995) ("Statutes of limitations ensure that defendants are protec t e d a gainst the prejudice of having to defend against stale claims, as well as the notion that, at some point, claims should be laid to rest so that security and stab i l i ty can be restored to human affairs.") (internal quotation omitted). The defendants at no time could have expected or enjoyed repose rega r d i n gthese matters. The denial of t h e motion to add the specific Dealers to the original litigation was accompanied in the same breath by notice that a new complaint might be filed under the same facts. This occurred in a timely fashion. And the first litigation was not dismissed until after the second one was filed. No evidenc e o f s a n dbagging was brought forward, nor do we infer any prejudice to the defendants on this record. 7

Here, the Dealers had sought to vindicate their rights as the Defense Group, but lacked standing in that guise. In denying a motion to add the plaintiffs to the original litigation, the-15-

district court indicated it would allow a new filing to relate back to the date of the old one. It seems clear that the district court could instead have allowed the pleadings to be amended to name the pla i n t i f fs individually. While we cannot say with certainty why

on e c o u r s e of action was to be preferred over another, we are confident that the district court did not abuse its discretion.

Rule 15(c) does not specifically contemplate the substitution of plaintiffs. See Fed. R. Civ. P. 15(c), advisory committee note ("The relation b a ck of amendments changing plainti f f s i s not expressly treated in revised Rule 15(c), since the problem is generally easier."). But this is not a bar to relation back here either; assuming that the general principles of Rule 15 are to govern this admittedly unusual situation, we find that substituting plaintiffs here wreaks no injustice. [W]e have laid down three separate requirements applicable to plaintiffs who seek succor under Rule 15(c)(3): The amended complaint must arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original p l e a ding; there must be a sufficient identity of interest between the new plaintiff, the old plaintiff, and their respective claims so that the defendants can be said to have been given fair notice of the latecomer's claim against them; and undue prejudice must be absent.
You n g v . L e p o n e , 3 0 5 F . 3 d 1 , 1 4 ( 1 s t C i r . 2 0 0 2 ) ( q u o t i ng Allied Int'l v. Intel Longshoremen's Ass'n, 814 F.2d 32, 35-36 (1st Cir. 1987)). Accepting, as the district court did, that the DealersThe Dealers presented testimony on this issue at trial. While 8 that testimony was of course not available to the district court when it decided the motion to amend in Tsaniklides and the motion to dismiss in this case, it does help to corroborate the district court's determination. The Dealers provide two alternate theories on which to uphold 9 the denial of the motion to dismiss: equitable estoppel and equitable tolling of t h e s t atute of limitations. Because the district court denied the motion to dismiss on the basis of relation back, we have found it most convenient to follow that analysis here. We note only that all of these approaches address the fundamental issue of whether defendants suffer undue prejudice -16- were members of the D e f e nse Group, these factors are met here. 8 The district court's factual conclusion does not represent an abuse of discretion, and so we adopt it.

The original complaint states the same causes of action, arising from the same eve n t s , as the new complaint. The Dealers have always claimed that they were all members of the Defense Group. That organization was established onl y to assert its members' rights and protect their interests, and so we find sufficient identity of interest to put the defendants on notice of the claims against them. And there is no undue prejudice where the Deale r s a r e simply asserting themselves a claim they had made through a proxy well within the statute of limitati o n s . Had the motion to amend been granted, and the individual plaintiffs named, relation back would have been within the district court's discretion. The district court, then, properly allowed the relation ba c k o f the new case to the previous one, and therefore did not err when it denied the motion to dismiss. 9as a result of delay or lack of notice. -17- State Contract Claim The defendants appeal the jury's determination that the le a s e s w e r e o r a l l ya m e n d e dt o i n c l u d e t h e S u b s i d y , a n dt h e refore when the Subsidy was ended, the leases were breached. First, the defendants contend that the leases were comp l e t ely integrated, meaning oral representations before or during the execution of the contract must be excluded by the parol evidence rule. Second, they claim that even if th e l e a s e s were not integrated, the jury had insufficient evidence to conclude that the leases were amended to include a promise to continue the Subsidy.

The defendants argue as an initial matter that the leases were completely integrated agreements. The leases indispu tably represented that they were integrated agreements and that any subsequent modification had to be in writing. The defendants claim the i n t e gration clause operated to insulate the leases from oral representations made prio r t o or contemporaneous with execution. But a document is not integrated merely because it says so. See Restatement (Second ) of Contracts § 209 cmt. b (1981) ("Written contracts, signed by both parties, may incl u d e an explicit declaration that there are no other agreements between the parties, but such a declaration may not be conclusive.").

In Massachusetts, "the question of integration is one of fact reserved for the trial judge, whose resolution of that issue-18-

will not be reversed unless clearly erroneous." Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 436 n.7 (1992); Antonellis v. Northgate Constr. Corp., 362 Mass. 847, 850-51 (1973) (even absent specific evaluation of evidence b y trial judge, finding of nonintegration upheld as not clearly erroneous); Alexander v. Snell, 424 N.E.2d 262, 264 (Mass. App. Ct. 1981); accord Brennan v. Carvel Corp., 929 F.2d 801, 807 (1st Cir. 1991) ("[U]nder Massachusetts law, the determination of whether a c o n tract is completely or partially integrated, or whether a second contract is collateral to an integrated agreement, is a question of fact to be decided in the first instance by the trial judge.").

Here, the district court did not make a specific finding about integration, but the charge to the jury on amendments compels the inference that the agreements were not integrated. The jury was instructed to consider what the parties said and did concerning the lease; because the instruction did not exclude actions prior to or contemporaneous with the execution of th e written lease, the district court must have concluded that the lease was not an integrated agreement.

After review of the record, we cannot say t h a t t his determination was clear error. The Subsidy was explained to each plaintiff in documents accompanying the lease, and many plaintiffs testified they regarded the Subsidy as essential to their businesses. There was evidence that the defendants said that the-19-

Subsidy was intended t o be permanent, that the 30-day-notice provision was only in place for cases of war or embargo, and that the Dealers could rely on the continuation of the Subsidy or something like it. The district court therefore had ample evidence before it to determine that the lease was not an integrated agreement. Because the leases were not integrated, they could be varied by mutual agreement. "Mutual agreement on modification of the requirement of a writing may . . . be inferred from the conduct of the parties and from the attendant circumstances." First Pa. Mortg. Trust v. Dorchester Sav. Bank, 395 Mass. 614, 625 (1985) (internal quotation omitted). The defendants assert that the evidence was insufficient to allow the jury to decide, as it did, that a promise to continue the Subsidy was incorporated into the leases. The district court instructed the jury: "[Y]ou may consider what each one said, one to the other, how they behave[d], what each did, what each knew and what the circumstances were . . . then you may infer
. . . from their statements and their conduct . . . whether both Shell and each plaintiff agreed to amend the leases." Evidence adduced at trial included not only representations made directly to the Dealers that the Sub s i d yor something like it would always be available, but also internal Shell documentation indicating that the Subsidy was intended to be permanent, that franchisees should plan their businesses around the-20-

continued availability of the Subsidy, and that franchisees would understand the loss of the Subsidy to be a breach of a promise by Shell. A r a t i o n a l jury viewing this evidence might come to the conclusion that the leases were amended to include the Subsidy. Constructive Termination The Dealers claimed that when Motiva breached their leases by eliminating the S u b s idy, that breach perfected a constructive termination by Shell. The PMPA allows assignment of duties in franchise agreements in accordance with state law. See 15 U.S.C. § 2806(b). But an assignment that is violative of state law, or one that results in a breach of one of the statutory
compon e n t s o f a f r a n c h i s e , g i v e s r i s e t o a c l a i m u n d e r t h e PMPA against the original franchisor/assignor. In the words of the Fourth Circuit, "A franchisor cannot circumvent the protections the [PM P A ] a ffords a franchisee by the simple expedient of assigning the f r a n chisor's obligation to an assignee who increases the franchisee's burden . . . ." Barnes v. Gulf Oi l C o r p . , 795 F.2d 358, 3 6 2 ( 4th Cir. 1986) (reversing summary judgment and holding that where assignee breaches franchise agreement, action will lie against franchisor/assignor). In Chestnut Hill Gulf v. Cumberland Farms, Inc., 940 F.2d 744 (1st Cir. 1991), we adopted the test for constructive termination articulated by the Sixth Circuit. To sustain a claim, under the PMPA, that a franch i s or assigned and thereby constructively terminated a franchise agreement, the franchisee must prove either: (1) that b ymaking the assignment, the franchisor-21-

breached one of the three statutory components of the franchise agreement, (the contract to use the refiner's trademark, the contract for the supply of motor fuel, or the lease of the premises), and thus, violated the PMPA; or (2) that the franchisor made the assignment in violation of state law and thus, the PMPA was invoked. Id. at 750-51 (quoting May-Som Gulf, Inc. v. Chevron U.S.A., Inc., 869 F.2d 917, 922 (6th Cir. 1989)).

What set Barnes apart from b o t h C hestnut Hill Gulf and May-Som Gulf was that in Barnes the assignment of the contract had result e din gasoline prices above the price specified in the contract; in other words, Barnes concerned a breach of one of the statutory elements of the franchise, the agreement for the supply of branded motor fuel. The Fourth Circuit vacated summary judgment for the defendant, holding that the breach of the contract for the

s u p p l y o f g a s o l i n e c r e a t e d a c o n s t r u c t i v e t e r m i n a t i o n o f the franchise. In Chestnut Hill Gulf we held the PMPA w a s not implicated because there was no evidence that any of the statutory components of a franchi s e h a d been breached. "[A]ll thirteen dealers continued to occ u p y the same service stations under the same leases; they continued to purchase Gulf brand gasoline under the same supply agreements; and they continued to do business under the same Gulf trademark." Chestnut Hill Gulf, 940 F.2d at 752. In May-Som Gulf, the defendan t s were entitled to summary judgment because the plaintiffs had merely complained of potential breaches
to the franchise agreement. In the case before u s , t h e D ealers have prove n to the jury's satisfaction that Motiva breached the-22-

lease component of the franchise agreements. That breach allowed the jury to find that Shell constructively terminated the Dealers' franchises when it assigned the franchises to Motiva.

The defendants argue that in order to show a constructive termination, the breach must be contemporaneous with the assignment and the breach must amount to a total deprivation of one of the three e l ements of the franchise. Both contentions misunderstand constructive termination.

First, we agree with th e F o u rth Circuit that an action for constructive termination lies against the assignor of a franchise when the assignee b r e a c h es the franchise. Barnes, 795 F.2d at 362. This prevents the assignor/franchisor from shielding itself ag a i n st liability through the use of another corporation. "The [PMPA] does not contemplate that a fra n c hisee should be relegated to seeking damages from an assignee that might not have the resources to satisfy a judgment." Id. A delay between the assignment and the breach changes nothing. The reasons for this are even stronger where the assignee is a subsidiary of the franchisor, or a joint venture in which the franchisor is a party.

Se c o n d , t h e b r e a c h o f t h e s t a t u t o r y e l e m e n t o fthe franchise does not have to be a total breach. In Barnes the plaintiff was " f o r c ed to raise her prices, and her sales and net income . . . declined." Id. at 361. She did not suffer a complete loss of the benefits of t he motor fuel supply contract. The-23-

defendants' attempted analogy to constructive termination in employment law or constructive eviction in landlord-tenant law is misleadi n g . Those doctrines require an actual severance of the rel a t i o n ship: The employee must leave the workplace; the tenant
must m o v e o u t . B u t h e r e , a s t h e D e a l e r s t e s t i f i e d , s u n kcosts, optimism, and the habit of years might lead franchisees to try to make the new arrangements work, even when the terms have changed so materially as to make success impossible. Indeed, some plaintiffs testified they had gone into personal debt, driven themselves into bankruptcy, or enlisted the aid of family members working without pay to make ends meet. To require an actual abandonment of years of work and investment before we recognize a right of action under the PMPA would be unreasonable. The "congressional plan would be frustrated by requiring a franchisee to go out of business before invoking the protections of the PMPA." Pro Sales, Inc. v. Texaco, U.S.A., 792 F.2d 1394, 1399 (9th Cir. 1986).

We do not here say that any material breach of the lease would necessarily be s u f ficient to sustain the constructive termination claim. In this case, the district court instructed the jury that it could find constructive termination only if the breach of the lease "was such a material change that it effectively ended the lease, even though the plaintiffs continued to operate the business . . . . It's not simply was the lease breached, but did that breach amount to . . . effectively the end of the franchiseSee May-Som Gulf, 869 F.2d at 921-22 (noting that the PMPA 10 does not mandate "a permanent status quo" and that the act was not meant to stymie "major national acquisition and large scale divestiture" (quoting Russo v. Texaco, Inc., 630 F. Supp. 682, 683 (E.D.N.Y. 1986)). -24- r e l a t ionship." In this instruction the district court set an appropriate threshold.

We agree with the district court that an assignor may be liable for even a subsequent breach of the franchise agreement by an assignee, and that a breach of the franchise agreement need not result in c o mplete deprivation of a statutory element of the franchise to support a constructive termination.

Indeed, this case prese n t s a strong argument for the doctrine of constructive termination. At trial the Dealers argued that Shell assigned the fra n c h ise agreements to Motiva, even created Motiva, in order to squeeze them out of their franchises. They presented evidence that this was the reason for the change in the re n t f o rmulation, the elimination of the Subsidy, and the dramatic increase in rents they paid. If the jury accepted this as the reason, the case falls within the scope of the PMPA, which is designed not to freeze the franchise agreements exactly where they
were, but to prevent franchisors from improperly term i n a ting

10 franchises and thereb y t o ensure that franchisees benefit from successful investment in their franchises.

This same protection for franchisee expectations underlies the PMPA's requirement that a franchisor make a bona fideFor example, subsection 2802(b)(2)(E) requires that a 11 te r m i nation made pursuant to a franchisor's withdrawal from "the marketing of motor fuel through retail outlets in the relevant geographic market area" be "not for the purpose of converting the premises
. . . to operation by employees or agents of the franchisor for such franchisor's own account." For another example, nonerenewals a r e normally allowed if they are based on determinations "to materially alter, add to, or r e p lace such premises," or determinations that the franchise "is likely to be uneconomical despite any reasonable changes . . . which may be accep t a b le to the franchisee." But subsection 2802(b)(3)(D)(ii) explicitly prohibits nonrenewal under those same circumstances when that determination i s " m a de for the purpose of converting the leased m a r k eting premises to operation by employees or agents of the franchisor." This language forbids termination or nonrenewal under these circumstances even if the right of first refusal is given or the bona fide offer is made. (This restriction does not apply to sales of the premises, perhaps because the drafters of the legislation did not imagine that the sale of the underlying premises could be for the purpose of converting the station to the franchisor's control. But cf. Patel v. Sun Co., 141 F.3d 447 (3d Cir. 1998) (when franchisor sells underlying property with leaseback provision to operate service station, PMPA implicated in neither the sale of the property nor the termination of the franchise on expiration of the franchisor's lease)). -25- o f f e r , or grant a right of first refusal, to the franchisee when the franchisor contemplates withdrawing from the relevant market, selling the underlying real property, or dedicating the property to another use. 15 U.S.C. § 2802(b)(2)(E) & (b)(3)(D). This is also why parts of the PMPA place more restrictions on franchisors when the purpose of termination or nonrenewal is to convert the station to di r e c t o p eration by the franchisor. Were it otherwise, the 11 franchisor could extract any incre a s e i n value created by the franchisee's investment, without sharing that increase with the franchisee. This would dampen the incentive for a franchisee to develop the business. In this case, the Dealers presented evidenceNothing in the PMPA would prevent the defendants from buying 12 the Dealers out. What the PMPA does forbid is fran c h i s ors using their power to dictate impossible franchise terms in order to force the franchisees to walk away from their investments or to sell them at artificially low prices. That is exactly what the Dealers claimed was happening here. -26- that the defendants wanted to convert their stations to direct operation. Where a franchisor has breached its obligations to the 12 franchisee such that the franchisee faces the effective end of the franchise, the PMPA must treat that as a termination of the franchise. Neither will we contradict the jury's verdict. When we are satisfied that the law has been faithfully interpreted, we will overturn a jury's verdict only when no reasonable jury could have come to that verdict on the facts presented. See Rodriguez-Torres, 399 F.3d at 57. The jury heard ample evidence to conclude that the financial hardship resulting from the loss of the Subsidy meant the end of the relationship. The defendants had opportunity to attack the credibility of that evidence and to put on their own. We will not step into the jury box to p r o v i d e a second opinion. Nor was the verdict against the demonstrable weight of the evidence or likely to result in a blatant miscarriage of justice. Consequently, there was no manifest abuse of discretion in the district court's denial of the motion for a new trial.-27- Constructive Nonrenewal
As e a c h D e a l e r ' s l e a s e e x p i r e d , M o t i v a p r e s e n t e d a new lease. The new leases changed the way rent was calculated, which had the effect of increasing the rents charged. The Dealers argued that this change and others w e r e n ot made in good faith, as required by the PMPA, but rather were part of the plan to drive the franchisees out of business. They claimed that inclusion of these terms amounted to a n o n renewal of their agreements, even though each Dealer signed a new agreement (albeit "under protest"). We conclude that the PMPA does not support a claim for nonrenewal under these circumstances. We therefore vacate this portion of the district court's judgment and remand with instructions to issue judgment on this claim for the defendants.

It is the plaintiffs' burden to prove that a nonrenewal or a termination has taken place. 15 U.S.C. § 2805(c). A notice of nonrenewal issued pursuant to 15 U.S.C. § 2804, while not strictly speaking a nonrenewal, presumably satisfies this burden. See Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 864 (7th Cir. 2002) ("[A] franchisor's issuance of a notice of nonrenewal is the precise equivalent of a nonrenewal."); Lippo v. Mo b i l O il Corp., 776 F.2d 706, 720 (7th C i r . 1 9 8 5 ) ("In an action brought under section 2805(a) the franchisee has the burden of proving termination of the f ranchise. (This must really mean attempted termination if the injunctive relief is to be of any use.)"). But-28-

s e e S eckler v. Star Enter., 124 F.3d 1399, 1403 (11th Cir. 1997) (no claim under PMPA when notice of nonrenewal r escinded before action commenced); Akky v. BP Am., 73 F.3d 974, 974 (9th Cir. 1996) (same). The threshold question is whether to recognize such a "constructive nonrenewal" and thereby bring Motiva's actions within the r e a c h o f the PMPA. The Ninth Circuit is the only circuit so far to recognize a claim for constructive nonrenewal. Pro Sales 792 F.2d 1394. In Pro Sales, the plaintiff signed a r e newal
agreeme n t "under protest" and immediately brought suit under the PMPA. Id. at 1398. The court relied on legislative history to conclude that these facts gave rise to a claim for constructive nonrenewal under PMPA. Id. at 1399.

Pro Sales has been rejected by the other circuits to consider the issue. The PMPA, after all, requires a franchisor to provide a notice of nonrenewal, 15 U.S.C. § 2805(c), and then provides a framework for the franchisee to seek preliminary relief

on re c e i p t o f that notice, id. § 2805(b)(2). Two circuits have held that this notice-and-preliminary-relief structure is evidence that Congress i n t e nded to limit the reach of the PMPA to cases where either a notice is given or an actual nonrenewal ha s t a ken place. See Abrams Shell v. Shell Oil Co., 343 F.3d 482, 489 n.16 (5th Cir. 2003) ("[T]he Seventh Circuit rejected the Pro Sales approach based on a 'franchisee's ability to obtain an injunction-29-

under the PMPA' in cases of nonrenewal. We reject the Pro Sales approach on the same basis." (quoting Dersch Energies, 314 F.3d at 865)). Thus, in Dersch Energies, the Seventh Circuit held that a franchisee who had signed a renewal "under protest" did not have a claim for constructive nonrenewal because the franchise had in fact been renewed. "Had Dersch allowed the defendants to issue a formal notice of non-renewal, its dispute with the defendants would have been transformed from a mer e c o n tract dispute into a non-renewal (within 90 days) of its franchise relationship -- thus allowing it
to . . . maintain suit" under the PMPA. Id. at 866; accord Abrams Shell v. Shell Oil, 343 F.3d 482, 489 (5th Cir. 2003) ("We find the Seventh Circuit's reasoning in Dersch Energies to be especially persuasive, thus we apply the same logic to this case. Plaintiffs have not provided any evidence that Defendants failed to renew the relevant agreements; therefore, Plaintiffs have not shown a breach in the franchise relationship.").

The plaintiffs' constructive nonrenewal argument requires the following reasoning. Had the Dealers refused to agree to the new contract terms, Motiva would have issued notices of nonrenewal alleging as a permissible basis for nonrenewal the "failure of [the parties] to agree on changes or additions to the provisions of the franchise . . . ." 15 U.S.C. § 2802(b)(3)(A). The Dealers would have asserted that the nonrenewal was improper because the changes were not offered in good faith, id. § 2802(b)(3)(A)(i), or else-30-

were offered in order to convert the premises to the franchisor's own control, id. § 2802(b)(3)(A)(ii). On those grounds the Dealers could have sought preliminary relief and dama g e s u nder the PMPA. Id. § 2805(a) & (b).

The stumbling block that trips up the plaintiffs is that, rather than insist on receiving notices of nonrenewal, the Dealers signed the ne w a greements "under protest" and continued in operation under the new agreements. We conclude that just as the PMPA requires a clear indication from franchisors t h a t they seek nonrenewal of a franchise relationship, it likewise requires that franchisees faced with object i o n able contract terms refrain from ratifying those terms by executing the contracts (even "under protest") and operating under them. Allowing a franchisee to sign "under protest" and then later challenge the renewal would extend the period of uncertainty through the entire first year of a contract that in this case was only three years. Recognizing constructive nonrenewal also would enable a franchisee to sign the contract and simultaneously challenge i t . I f its claims were rejected by the courts, the franchisee would have lost nothing and could continue to operate the franc h i s e under the agreement with the PMPA-enforced reasonable expectation of continuation and renewal. Absent a claim for constructive nonrenewal, a franchisee must wait for a notice of termination to bring suit under the PMPA. The franchisee therefore risks the end of the franchise if theIn Pro Sales the suit was filed immediately and the plaintiff 13 obtained preliminary relief so that it never operated under the new contract. This is different from Dersch En e r gies, where the plaintiff operated under the new contract "for just under a year" before filing suit. 314 F.3d at 865. The Dersch court noted the distinction, but found it irrelevant. Id. We do not address the question whether a preliminary injunction enabling the franchisee to avoid operating under the new agreement combined with an immediate suit, as in Pro Sales, would satisfy the requirements for bringing suit under the PMPA. Such a case would avoid several of the problems we have identified, but would still allow a franchisee to challenge an agreement as a nonrenewal while retaining the right to take advantage of that agreement should the challenge fail. We hold only that under the facts before us today we cannot recognize a claim for constructive nonrenewal. -31- claim fails and so mu s t c a r e f u lly weigh the decision to sign or

sue. T h i s i s the balance Congress has struck, and should we

13 prefer another, we would not be free to impose it. Consequently, we reject application of constructive nonrenewal to these facts.

We note with some concern the limited scope of the PMPA. Two unexpected consequences of the legislation seem to loom as potential problems. The first is that franch i s ors will conform their b e h a v i o r to the letter of the law but still use their position of power to impose their will on franchisees. The statute is of course not a panacea and cannot be faulted for what it fails to do. But some statutory protection is worse than none when it serves as protective cover for the very misdeeds it purports to elimin a t e . The second unintended consequence is that, to the extent Congress succeeds in lev e l i n gthe playing field, it makes the franchise arrangement less appealing to franchisors. It is not difficult to imagine protections for franchisees so strong thatIn this assertion they are supported by amici, whose brief is 14 gratefully acknowledged. -32- franchisors abandon the model entirely. Evidence introduced at trial spoke to both of t h e s e hazards. However, these are issues for Congress to weigh and remedy, not for the courts.

Because we do not recognize a claim for nonrenewal under the PMPA where the franchisee has signed and operates under the renewal agreement complained of, we vacate this portion of the district court's judgme n t and remand with instruction to enter judgment on this count for the defendants. Unreasonable Gasoline Prices
The Uniform Commercial Code, as adopted in Massachusetts, contemplates the enforcement of contracts in which one party sets the price of goods over time. Mass. Gen. Laws ch. 106, § 2-305(2). But the price must be set in good faith. Id. The jury found that the defendants had failed to set reasonable prices in good faith. The defendants appeal on two grounds. First, they claim that the "good faith" requirement means only that such a price may not discriminate among similarly situated buyers. A nd second, the 14 defendants as s e r t that the Dealers' evidence of unreasonable pricing is inadequate as a matter of law, because 1) it was based only on retail pricing charged by competitors to the D e a l e r s, rather than DTW prices charged to those competitors; and 2) the Dealers' expert presented pricing analysis of only one competitor,-33-

thereby failing to establish a "range" of prices outside of which the defendants' wholesale prices fell. We find neither contention persuasive.

Section 2-305(2) "rejects the uncommercial idea that . . . the seller . . . may fix any price he may wish by the express qualification that the price so fixed must be in good faith. Good faith includes observance of reasonable comme rcial standards of fair de a l i n g . . . ." Id. § 2-305(2) cmt. 3; U.C.C. § 2-305(2) cmt. 3. "[I]n the normal case "a 'posted price' or a future seller's or buyer's 'given price,' 'price in effect,' 'market price,' or the like satisfies the good faith requirement." Id. The defendants and amici urge us to read this comment as providing an absolute safe harbor for nondiscriminatory posted prices in open price term contracts. This we will not do.

For one thing, the very comment on which the defendants and amici rely expressly invokes the general notion of "reasonable commercial standards of fair dealing." If the comment meant that only discriminatory pricing would be disallowed it certainly could have said that. For another, it is clear to us that a situation in which o n e merchant is raising its prices in order to force a customer out of business is hardly the "normal case." The Eleventh Circuit allowed this question to go to a jury in a class action involving a n other oil company's pricing policies. Allapattah
S e r v s . v . E x x o n C o r p . , 3 3 3 F . 3 d 1 2 4 8 , 1 2 6 2 n . 1 6 ( 1 1 t h C i r . 2003)-34-

(conceding that in a "normal case" nondiscriminatory pricing is protected, but holding that where the allegation was that an oil

c o mp a n y was trying to drive service stations out of business, "whether this case constituted a normal case was a factual issue

ne c e s s a ry to determine whether Exxon acted in good faith" and therefore rightly submitted to the jury). More recently, the Fifth Circuit upheld the denial of a motion for judgment as a matter of law on the basis that setting gasoline prices in bad faith to drive franchisees out of business violated the UCC. Mathis v. Exxon Corp., 302 F.3d 448, 457-59 (5th Cir. 2002) ("[T]he jury's finding that Exxon breached its duty of good faith in setting the DTW price it charged the plaintiffs is not without foundation in the law or the evide n c e."); see also Bob's Shell, Inc. v. O'Connell Oil Assocs., 2005 U.S. Dist. LEXIS 21318 (D. Mass. Aug. 31, 2005); Wayman v. Amoco Oil Co., 923 F. Supp. 1322, 1349 (D. Kan. 1996) (finding that the c a s e b e f o re it was a "normal case" but noting that "[i]f there was evidence that Amoco had, for example, engaged in discriminatory pricing or tried to run plaintiffs out of business, then the court's decision might be different"). But see Shell Oil v
. H RN, Inc., 144 S.W.3d 429, 435-38 (Tex. 2004) (holding absence of price discrimination created presumption of good faith notw i t h standing allegations that that oil company set prices in bad faith as part of a plan to drive franchisees out of business).-35- Commerce is predicated on the idea that a transaction is good for both buyer and seller. The comment recognizes that allowing one party complete control over the price would be "uncommercial." We do not think the only reason for this is the risk of price discriminat i o n . The drafters of the UCC and amicihere are rightly concerned about a flood of litigation secondguessing every price se t i n an open price term contract. Mere allegations of bad faith will never be enough to survive summary judgment. But this case comes to us after a jury verdict finding bad faith and commercial unreasonableness.

Nor do the defendants' objections to the sufficiency of the evidence require us to set the j u r y v e r d ict aside. While perha p s more specific and more comprehensive evidence would be preferable, the jury had enough evidence of the defendants' motives and practices, as well as enough information about competitors' pricing, to come to the conclusion that the DTW prices were commercially unreasonable. Specifically, the use of competing gas
stat i o n s ' r e t a i l p r i c e s t o d r a wc o n c l u s i o n s a b o u t w h a t t h o se stations might be paying for gasoline is not ideal, but is adequate to the task at hand. In fact, it i s t he same benchmark that the defendants used in their "street-back" pricing model in setting the DTW price in the first place. In the light of this, the defendants cannot be heard to complain that such prices are not a good measure of what other distributors of gasoline are charging. And althoughDamages for the state contract claim duplicate those for 15 constructive termination under the PMPA. We discuss these damages only o n ce, under the PMPA. Also, because we vacate the jury's verdict on the constructive nonrenewal claim, we do n o t consider the damages awarded under that claim. For the same reason, we do not address the defendants' argument on appeal that the awards for constructive termination and constructive nonrenewal were duplicative. -36- the Dealers' expert failed to present a "range" of such prices, the expert testimony was not the only testimony available. One Dealer testified that the retail prices he observed were equal to or lower than the wholesale prices he paid. Additionally, at least one Dealer had firsthand knowledge of the DTW prices charged in the same area by another franchisor. On appeal, the defendants put forward once again the contentions of their own experts regarding the range of prices set by competitors. But it was up to the jury to choose between these competing characterizations, and the jury did so. Damages 15

The defendants argue that the damages awarded for the PMPA constructive termination claim are not supported by sufficient evidence. The district court instructed the jury to calculate two kinds of damages: damages in the amounts of rents paid that were in excess of the rents under the Subsidy, and damages for reduction in the values of the Dealers' businesse s . We agree with the district court that there was ample evidence in the record for the-37-

jury to make a damages awar d , a n dwe uphold that award as reasonable.

The defendants claim that the damages are not supported by sufficient evidence for two re a s ons. First, the plaintiffs'

ex p e r t used the VRP when calculating damages for excess rent, rather than the STIP, as would have been correct. Because the STIP was less generous, the expert's figures were p r obably too high. And second, the expert presented damages figures for lost business value, but those figures were based on excess rent paid under the new lea s e s , not on the elimination of the Subsidy. Because this testimony applied properly only to damages under the constructive nonrenewal claim, the defendants say that a correspondence between the expert's figures and the actual awards for lost business value awarded under the constructive t e r mination theory must be error. We address each of these in turn.

The judge instructed the jury to find damages for excess rent paid due to the elimination of the Subsidy and for the loss of value to the Dealers' businesses due to the increased rent and the higher gasoline prices.

Calculation of excess rent requires several predictions: of the Subsidy threshold amount, of the discount rate, and of how much gasoline the Dealers could have sold under the scheme. Aside from those assumptions it is a relatively certain calculation, onEven this normally simple calculation is complicated somewhat 16 in these circumstances. Higher rents may have forced the Dealers to maintain higher gasoli n e prices, which in turn might have lowered sales volume. The Subsidy reduced rents based on gasoline volume, so a change in that volume would render more uncertain even the damages on this element. (At least one of the Dealers testified that he would sometimes lower his gasoline prices because he could recoup the lost margin based on increased volume and the lowered rent provided by the Subsidy based on that volume.) -38- which expert testimony was received. The Dealers' damages expert 16 concededly used the VRP instead of the STIP to calculate damages, thereby potentially inflating the damages. But even if we could
sta t e with certainty that the damages were therefore inaccurate, that would not necessitate our remanding for a ne wd a m ages calculation or our settling the matter ourselves. A clock that is five minutes fast is, strictly speaking, wrong. But it still may give a g e n e r a l s ense of the time and thereby serve its purpose. And the damage figures provided by the expert are, after all, only guideposts for the jury.

Calculating the loss of business value, o n t he other hand, relies on many more intangible factors and requires many more assumptions. In this respect it is similar to calculating future lost profits, which we have previously held is a more speculative inqu i r yt h a nn o r m a l e c o n o m i c d a m a g e s c a l c u l a t i o n s . S e e , e . g ., Camar Corp. v . Preston Trucking Co., 221 F.3d 271, 279 (1st Cir. 2000) ("[M]athematical precision is not req uired in calculating lost profits" but "a damages award must have a rational b a s is in the evidence." (internal quotation omitted)); E. Mountain Platform-39-

Tennis v. Sherwin-Williams Co., 40 F.3d 492 (1st Cir. 1994) (upholding as not erroneous a jury's award of future lost profits where the company was only "at a break-even point" and operations were not yet profitable). We reject the defendants' comparison of this case to Kolb v. Goldring, 694 F.2d 869, 873 (1st Cir. 1982). That case dealt with lost wages, in a statutory setting that limited recovery to "accounts owing" on a similar footing as a "common law suit for back wages for breach of contract." Id. at 871-82. Here, the plaintiffs are entitled to the loss of the value of their business as a result of the defendants' actions.

Because that calculation is necessarily complex and uncertain, we require from the jury less rigor in making the award. Here, along with expert testimony, the Dealers presented testimony that the defendants themselves had valued these stations more highly before the elimination of the Subsidy, and that some of the franchises had lost substantial value. W e recognize the wide latitude afforded the jury in thi s s i tuation -- asked to make an uncertain calculation on little hard evidence -- and we are mindful that we review to see only if no rational jury could have made this award. "[T]he assessment of damages cannot be disturbed unless the award exceeded any rational appraisal or estimate of the d a m a g es that could be based upon the evidence or was grossly excessive, inordinate, shocking to the [conscience] of the court, or so high that it would be a denial of justice to permit it to stand."-40-

Consolo v. George, 58 F.3d 791, 795 (1st Cir. 1995) (quotation marks and citations omitted). We decline to go so far.

The jury's awards largely correlate with the figures put forward by the Dealers' damages e x p e r t . W e believe, as did the district court, that once t h e weaknesses in the expert's figures were pointed out in closing arguments and jury i n s t r uctions, the jury nonetheless was free to use them as markers of probable damages. That the jury adhered closely to these numbers does not change the fact that the jury was aware of their inadequacies. The jury may have decided that they were close enough, or that no other method of calculation would be better. While a jury is not free "to pull figures out of a hat," Kolb, 694 F.2d at 873, we believe that the expert's testimony, the availability of the expert's background data, and the cautionary instruction issued by the district court gave enough guidance to the jury.

And the jury did not simply parrot the expert's figures in any event. In fact, where the jury did depart from the experts' figures, the defendan t s a ttack those departures as aberrations deserving of reversal. Three Dealers received awards in excess of the damage expe r t ' s calculations. The defendants characterize these as mystery "bonus" amounts unsupported by any view of the evidence. But each of these three Dealers testified to particular hardships that the jury might have thought indica t e dspecial reductions in business value. The jury may well have been-41-

performing its function in calculating losses in business value stemming from those hardships.

Similarly, we find that the jury ha d a mp le evidence to make a damages award for the claim under the open price term of the gasoline supply contract. That it differed in some partic u l ars from the numbe r s put forward by the expert is immaterial, particularly where, as here, different forms of evidence showed different pieces of this picture.

The award of attorneys' f e e s is mandated by the PMPA. Because we uphold only one of the two statutory claims, however, we must remand for a determination whether the failed constructive nonrenewal claim was a "severable" claim for the purpose of awarding attorney's fees. Such fees are normally not recoverable. See Figueroa-Torres v. Toledo-Dávila, 232 F.3d 270, 278 (1st Cir. 2000) (fees for unsuccessful severable claims normally not recoverable); Coutin v. Young & Rubicam, P.R., 124 F.3d 331, 339 (1st Cir. 1997) (discussing frame w o r k for determining whether to reduce fees); see also Hensley v. Eckerhart, 461 U.S. 424, 434-37 (1983). We are mindful both of the district court's discretion in this matter, and of the Supreme Court's admonition that determination of attorney's fees should not result in a second major litigation. Hensley, 461 U.S. at 437. But we have no basis here on which to make a judgment, and so we must remand.-42- Conclusion The judgment of the district court on the state contract claims, the u n r e asonable gasoline pricing claims, and the constructive termination claims is affirmed . The judgment on the constructive nonrenewal claims is reversed . The jury awards as to the surviving claims are affirmed as rational awards supported by sufficient evidence. The award of attorney's fees and costs is vacated andremanded for reconsideration in the light of our mixed disposition of the claims u n der the PMPA. Costs on appeal are awarded to the appellees.