Dersch Energies, Inc. v. Shell Oil Company and Equilon Enterprises, Inc.

CUDAHY, Circuit Judge,

dissenting.

I.

The question that remains after studying the opinion of the district court and that of the majority (which affirms the district court by applying a different analysis) is obvious: what possible purpose could Congress have had in amending the PMPA in 1994 to add § 2805(f)(1)? Although the district court set out to provide some sort of substance for this admittedly remedial piece of federal legislation, its efforts were, in the end, about as fruitless as those of the majority, which virtually writes § 2805(f)(1) out of the United States Code. The majority can only speculate that the section was intended to give some unspecified heft to some unspecified state remedy — thereby completely departing from the broader aim of remedying gross disparities in franchisor-franchisee bargaining power and providing regulatory uniformity on a national basis. See Beachler v. Amoco Oil Co., 112 F.3d 902, 904 (7th Cir.1997). The only state law claim mentioned is economic duress — a notably slippery cause of action even if marginally fortified by § 2805(f)(1). Maj. Op. at 862. The majority is quite frank in conceding that in its view a federal claim under § 2805(f)(1) can be recognized only if the franchisee is willing to commit economic suicide by allowing its gasoline supply to be terminated.

A.

The district court attempted to avoid such a harsh result by tentatively allowing recovery on a theory of constructive nonre-newal. Such a theory has been clearly recognized in some circuits, see, e.g., Pro Sales, Inc. v. Texaco, USA 792 F.2d 1394, 1399 (9th Cir.1986) (“[A] franchisee who signs a successor contract under protest and promptly seeks to invoke its rights under the PMPA ... has not ‘renewed’ the franchise relationship so as to bar relief under the PMPA.”), and finds support in dicta in the Seventh Circuit, see Boyers v. Texaco Refining & Marketing, Inc., 848 F.2d 809 , 813 n. 4 (7th Cir.1988) (“Our decision that Boyers has waived his right to raise the ‘constructive nonrenewal’ argument on appeal should not affect his ability to pursue this theory on his main claim if the facts supporting this theory are laid out sufficiently in Boyers’s Second Amended Complaint.”). This theory treats a renewal achieved by threats of termination in the same way as a literal nonrenewal. However, in exploring this promising approach, the district court was led astray into treating § 2805(f)(1) as applicable only to prospective contract provisions and not to those provisions contained in earlier franchise agreements. Thus, the district court’s constructive nonrenewal analysis, although initially encouraging, is almost as thorough in erasing § 2805(f)(1) *868 from the federal code as is the route taken by the majority.

The majority opinion, even though it rejects the constructive nonrenewal approach, disapproves of the analysis applied by the district court in draining § 2805(f)(1) of substance after that court has applied a constructive nonrenewal theory. The majority “agree[s] with Dersch’s arguments in some respects” that the district court’s application of the constructive nonrenewal theory “‘kept it from giving any consideration whatsoever to the substantive requirements of Section 2805(f)(1)’” and “permits ‘franchisors to continue to insist upon the waiver or release of rights, if they have historically done so.’ ” Maj. Op. at 858-59 (quoting Appellant’s Br. at 14, 20, 21). In other words, the district court erred in holding that only new provisions of a franchise agreement could invoke the prohibition of § 2805(f)(1). The majority goes on to say:

[W]e think that the meaning of § 2805(f)(l)’s text is clear; a franchisor may not condition the renewal of a franchise relationship on a franchisee releasing or waiving rights under federal or state law. As such, a franchisor cannot circumvent § 2805(f)(l)’s release and waiver prohibition by offering to renew the parties’ franchise relationship on terms and conditions identical to those contained in a prior franchise agreement, whether the prior agreement was entered into before or after enactment of the statute. Nor is a franchisor permitted to use § 2802(b)(3)(A) [the good faith proviso] to do an end run around § 2805(f)(l)’s release and waiver prohibition.

Maj. Op. at 869.

I could not agree more fully with these observations of the majority that reject the district court’s application of § 2805(f)(l)’s prohibition only to new contract terms and that court’s invocation of the good faith justification of § 2802(b)(3)(A) to validate the Disputed Provisions that have been contained in past agreements. As a matter of law, terms that violate § 2805(f)(1) cannot qualify as good faith proposals. How can one in good faith insist on the inclusion in the agreement of terms forbidden by statute? See, e.g., Coast Village, Inc. v. Equilon Enterprises, LLC, 163 F.Supp.2d 1136, 1178 (C.D.Cal.2001) (“Notwithstanding Plaintiffs’ failure to rebut the evidence presented by Defendant of its good faith development of the provisions in the new agreement(s) ... several provisions of the new agreement^) require waiver of rights protected by state or federal law, and therefore agreement thereto cannot be required to effect renewal of Plaintiffs’ franchises.”); Riverdale Enterprises, Inc. v. Shell Oil Co., 41 F.Supp.2d 56, 67 (D.Mass.1999).

To confine the prohibition of § 2805(f)(1) to new terms, or only to changes in terms, is a construction that simply finds no support in the text of § 2805(f)(1). See Maj. Op. at 862. And to rely on § 2802(b)(3)(A), which permits franchisors to nonrenew a franchise agreement relationship if the franchisee refuses to agree to changes and additions made in good faith in the normal course of business, is to indulge the contradiction that unlawful terms can somehow be offered in good faith and in the normal course of business. See Coast Village, Inc., 163 F.Supp.2d at 1178 ; Riverdale Enterprises, Inc., 41 F.Supp.2d at 67 .

Therefore, while I agree with the district court in following Pro Sales, Inc., supra, to find a basis for this lawsuit through a constructive nonrenewal analysis, I cannot agree that that approach can be thwarted, as it was by the district court, by restricting it only to new terms or to changes in terms, or by employing the good faith proviso to trump § 2805(f)(1). I would pursue, as a preferred option, a *869 constructive nonrenewal analysis, but in that context would apply § 2805(f)(1) to the Disputed Provisions here even though they have been included in past agreements. Further, I would not permit § 2802(b)(3)(A) [the good faith proviso] to ovenide the prohibition of § 2805(f)(1).

B.

The points which the majority attempted to make in its first response 1 to the observations of the dissent are remarkable, but far from convincing. Citing the provisions of the PMPA for 90 days’ formal notice of nonrenewal, together with the associated provisions for preliminary injunctive relief, the majority has contradicted most of what it carefully attempted to demonstrate in the earlier part of its opinion. Thus, the majority has gone to great lengths to establish that there can be no federal claim based on § 2805(f)(1) unless there has been an actual termination or nonrenewal of a franchise. The majority says that, “if a franchise impermissively conditions the renewal of a franchise relationship on the franchisee releasing or waiving federal or state law rights, and the franchisee’s refusal to agree to this conditional renewal results in the nonrenewal of that relationship, the franchisor’s violation of § 2805(f)(1) may be examined in conjunction with the franchisee’s claim for the nonrenewal of its franchise relationship.” Maj. Op. at 862 (emphasis added). Nothing could be clearer than this. And, of course, it is the basis of my observation, to which the majority now objects, that the franchisee must either waive its rights under § 2805(f)(1) or commit economic suicide by allowing its gasoline supply to be cut (through nonrenewal of the franchise).

The majority, also in its first response to my dissent, points to provisions for a notice of nonrenewal and for associated preliminary injunctive relief as affording an escape from the “Catch-22” which I have outlined. 15 U.S.C. § 2805 (b)(2). In effect, the majority is saying that, in a § 2805(f)(1) case like the one before us, the statutory notice of nonrenewal is the precise equivalent of nonrenewal itself and may be treated as nonrenewal for purposes of maintaining suit. This position, of course, recognizes the validity of constructive nonrenewal, a concept that the majority opinion has otherwise attempted thoroughly to demolish. Constructive nonrenewal merely means treating something which is literally or in fact not non-renewal as actual nonrenewal for purposes of litigation. A substantial part of the majority opinion is dedicated to showing the error of constructive nonrenewal, 2 yet, in response to the dissent, the majority argues that the statutory notice of nonre-newal really amounts to actual nonrenewal for purposes of sustaining a lawsuit based on § 2805(f)(1). This is a convenient contradiction that simply will not hold water. 3 *870 The majority also asserts that the standards for preliminary relief under the PMPA are lenient in their demands on the franchisee. They can hardly be lenient enough to provide preliminary relief when by the majority’s analysis elsewhere there can be no permanent relief under § 2805(f)(1) — injunctive, declaratory or in damages — unless there has been an actual nonrenewal of the franchise. 4 And, if suit may be maintained by treating notice of nonrenewal as the functional equivalent of nonrenewal itself, what need would there be for something formally titled “a private right of action”? In fact, if the majority’s view of the 90-day notice provision is correct, the majority is recognizing a procedure which in every relevant respect is functionally equivalent to a private right of action for the franchisee.

Additionally, the only case from this circuit, Beachler , cited to support the majority’s contention that Dersch should have refused to sign the renewal agreement and filed suit upon receiving statutory notice of nonrenewal does not stand for the proposition that PMPA relief requires such formal notice under § 2804. Beachler, 112 F.3d 902 . If anything, Beachler supports the proposition that Dersch’s PMPA cause of action arose the moment Shell said “take-it-or-leave-it,” and was . unaffected by whether or not Dersch signed under protest. In Beachler we analyzed the availability of relief for franchisees under the PMPA without regard to whether formal notice of nonrenewal or termination under § 2804- was ever issued. See id. at 903-04 (“Once Amoco’s plans for the assignments and sales were finalized, affect *871 ed dealers in Peoria and Springfield were notified both orally and in writing. Six of the sixteen dealers then instituted this action under the PMPA for preliminary and permanent injunctive relief.”). The franchisees in Beachler filed suit upon written notice of the pending assignment and were denied relief because “the franchisees” have failed to show that the assignments “would give rise to a termination or nonre-newal under the PMPA.” Id. at 909 (emphasis added). What is significant is that the right to relief under the PMPA did not depend upon either of the grounds advanced by the majority: (1) actual nonre-newal or termination or (2) formal notice of nonrenewal under § 2804(a). 5 Therefore, as I have already argued, Dersch’s cause of action for constructive nonrenewal, as analyzed under Beachler , arose when Shell made its take-it-or-leave-it offer of renewal 6 containing the contract terms that violated § 2805(f)(1). 7

The majority’s observations about Pro Sales and its relation to Dersch’s claim are equally wide of the mark. First, the majority faults Dersch for failing to “promptly seek to invoke its rights under the PMPA.” “Promptly” in the case of Pro Sales, by the majority’s reckoning, apparently meant in a matter of days or weeks, not a year as in Dersch’s case. However, I think this Pro Sales requirement relates significantly to the kind of relief being sought. In Pro Sales the franchisee apparently asked for injunctive relief. Dersch requests only declaratory relief (which I suppose might translate into reformation of- the franchise agreement) and there is no particular need for a speedy resolution *872 in that context or, for that matter, a need to maintain the old contract in force pending a declaration of its illegality (and the excision of its void provisions). Further, the statutory language of which the majority is so fond defines for us what is considered “promptly” done under the PMPA: filing suit within one year of the non-renewal. § 2805(a). The majority cannot be claiming that Dersch sat on its rights without notice to Shell: Dersch signed under protest after clearly indicating its lack of assent to the contract terms. There is no question that Dersch has acted as “promptly” as the PMPA requires.

The majority also faults the Pro Sales court for ignoring the PMPA provisions for receipt of the formal notice of termination and immediate recourse to preliminary injunctive relief. I fail to see the relevance of this point. The fundamental analysis of the basic merits of rights under the PMPA by the Ninth Circuit is quite different from the analysis by the majority here. Whether the Pro Sales court thought the PMPA provisions for notice and preliminary relief were important, let alone critical, does not seem to me significant in the context of its basic approach. After all, preliminary, status-quo-maintain-ing procedures are purely ancillary to statutory rights. They may afford a more orderly mode for enforcing rights, but they are hardly central to the analysis. Nor does § 2805(b)(2) significantly alter the balance of bargaining power as between franchisor and franchisee.

II.

A.

As an alternative approach, I believe that an independent basis for plaintiffs suit might be found even without recourse to the theory of constructive nonrenewal (although an independent basis is not necessary to the result here). Both the majority and the district court here rejected the possibility of a private right of action for franchisees injured by breaches of § 2805(f)(1). Both the district court and the majority relied heavily on Alexander v. Sandoval, 532 U.S. 275 , 121 S.Ct. 1511 , 149 L.Ed.2d 517 (2001), in reaching this conclusion. I certainly have no quarrel with the thesis that the existence of a private right is a matter of Congressional intent. But Sandoval , which involved an alleged private right to sue on regulations that extended the rights conferred by the statute, is a far cry from the present case, which deals with a new statutory right that is an awkward fit in the express enforcement provision already contained in the statute. This is not, as the majority characterizes it, an attempt to read new types or modes of remedies into the statute. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11,19-20 , 100 S.Ct. 242 , 62 L.Ed.2d 146 (1979). Section 2805 clearly provides for damages as well as injunctive relief. Nor is this an attempt to expand an existing cause of action to capture new, extrastatutory conduct. Sandoval, 532 U.S. 275 , 121 S.Ct. 1511 , 149 L.Ed.2d 517 . An unarguable purpose of the statute is' to furnish private rights to franchisees to protect themselves from franchisors who use imbalances in bargaining power to force compliance with franchisor policies. Beachler, 112 F.3d at 904 . And this certainly is not an attempt to hijack a funding statute whose purpose and function lie far removed from private citizen actions. Gonzaga Univ. v. Doe, 536 U.S. 273 , 122 S.Ct. 2268, 2275-76 , 153 L.Ed.2d 309 (2002).

The cases upon which the majority relies forbid the distortion of statutory language to create remedies where none were intended. These cases are distinguishable from the present case, where Congress’s clear intent was to empower private actors, the franchisees, with a cause of action. While the original statute *873 defined those rights in terms of literal nonrenewal or termination, the 1994 amendments expanded that right in § 2805(f)(1) to include renewal accomplished at economic gunpoint, where the threat of nonrenewal forced waivers of rights otherwise provided by law. To see the statute in its totality and conclude that Congress’s arrangement shows an intent not to allow a remedy for this right defies the logic of the statute. Section 2805(f)(1) becomes a dead letter unless Dersch has a basis for maintaining this kind of suit, and the class of persons entitled to sue will not be enlarged by recognizing a private right here. In summary, Dersch has a basis for suit preferably as a matter of constructive nonrenewal or, as an alternative, by exercising a private right of action under § 2805(f)(1).

B.

Once it is determined that Dersch has the ability, as a threshold matter, to maintain an action under the PMPA, via one or the other statutory alternative, one must next decide whether, on the merits, the Disputed Provisions here violate § 2805(f)(1) and actually require the waiver of a right existing under state law as a condition of the franchise renewal. As the majority makes clear, the franchise renewal here was offered on a take-it-or-leave-it basis. Therefore, if the Disputed Provisions required Dersch to waive a state law right, § 2805(f)(1) was violated.

The first Disputed Provision is Article 5, which allows the defendant to make alterations in the conditions and locations of fuel deliveries. Dersch alleges that Indiana law gives it the right to a franchise agreement that does not contain provisions allowing the substantial modification of the agreement without the written consent of Dersch. 8 The district court did not consider the merits of Dersch’s Article 5 claim, finding instead that Dersch had failed to show that a constructive nonrenewal took place. While I am inclined to believe that the effect of Article 5 is to allow a “substantial modification of the franchise agreement” without written consent of Dersch, there has been insufficient factual development to determine whether, in fact, Dersch qualifies for the protection of Indiana’s Deceptive Franchise Practices Act, Ind.Code §§ 23-2-2.7-1 et seq. I would remand to the district court to determine whether Article 5 violates § 2805(f)(1).

Dersch also argues that Disputed Provision Article 11, in which Dersch agrees to indemnify Shell even for actions in which Shell was contributorily negligent, violates Illinois law establishing the right to several liability for defendants whose fault is found to be less than 25% of the total fault, and establishing Dersch’s right to contribution from joint tortfeasors. See 735 ILCS § 5/2-1117; 740 ILCS § 100/2. Dersch’s argument appears to have merit. Section 2-1117 would assign liability to Dersch, in admittedly limited circumstances, only to the extent of actual pro rata fault. Additionally, the invoked right to contribution under 740 ILCS § 100/2 (that was, for unknown reasons, not expressly listed by statutory section) gives Dersch the right under Illinois law to escape liability for Shell’s tortious conduct. Article 11 requires Dersch to waive this right, and appears, therefore, to violate § 2805(f)(1). However, on remand, I would allow Shell to show any circumstances that might undermine Dersch’s argument on this point. The issue has not been addressed on the merits by either the district court or the majority.

*874 On another of the Disputed Provisions, I agree with the district court that Dersch’s claim under Articles 21.2 and 21.3 of the Agreement cannot succeed. Article 21.2 is inapplicable to Dersch because Dersch is not “composed of more than one person.” Article 21.3, Dersch argues, is designed to require by contract that managers and directors of Dersch assume personally the obligations of the corporation. Although I perceive how Dersch could arrive at its interpretation of the unusual language of Article 21.3,1 cannot assign such sweeping legal consequences to this provision taken as a whole. I do not see how the managers and directors, who are not parties to the franchise agreement, could be assigned personal obligations under it by the parties. Overcoming the right of a third party not to be bound by a contract to which she is not a party would require the third party’s consent. Even if Article 21.3 were an attempt by Shell to impose contractual obligations on nonparties, and this is hinted at by the unusual language, this is simply not a legal possibility.

On a broader front, Shell asserts that the savings clause of Article 19 eliminates any alleged violation of law supporting Dersch’s action. Article 19 of the Agreement states:

To the extent that any provision of this Contract is in conflict with any valid and enforceable law existing on the effective date thereof, that provision shall be deemed amended to conform with such law as it applies to this Contract at the time either party takes any action or exercises or claims any rights under such provision.

This provision, which presents the most difficult issue in the case, may well have been designed by Shell to avoid the sort of confrontation with franchisees with which we are struggling. If so, the effort almost succeeds, but in the end seems to deal more with appearances than with reality. Shell can argue, in accordance with the language of Article 19, that the Disputed Provisions are only enforceable to the extent permitted by law. Hence, none of the Disputed Provisions can violate § 2805(f)(1) because they would at some point be amended by Article 19 to conform to the PMPA’s strictures. This has a good ring to it, but there may be serious questions of timing. While the savings clause may operate at some future date to amend the invalid provisions, it does so after the violation of § 2805(f)(1) giving rise to the claim has occurred.

The plain language of § 2805(f)(1) forbids the waiving of state law rights as a condition of entering into a franchise agreement. Therefore, the § 2805(f)(1) violation occurs with the franchisor’s threat of nonrenewal by a take-it-or-leave-it contract containing a term that waives a franchisee’s state or federal legal rights. Accord Pro Sales, Inc., 792 F.2d at 1399 ; Coast Village, Inc., 163 F.Supp.2d at 1176 (“Franchisees facing an immediate threat of nonrenewal may sue under the PMPA.”). Article 19 amends contract provisions that have been determined to violate a valid law. Therefore, even assuming Article 19 operates as Shell argues and would eventually amend a contract term found to violate § 2805(f)(1) retroactively to the date the contract went into effect, 9 *875 Article 19 cannot operate to undo the antecedent threat. And it is the threat of non-renewal to induce acceptance of renewal terms violating § 2805(f)(1) that forms the basis of the claim.

Would a lawyer advise her franchisee-client to submit to terms abrogating the client’s state law rights in the hope that the contract would somehow be amended to conform to state law in the future? This seems to me to be the practical context in which to view the problem.

III.

I would, therefore, reverse and remand to the district court for further proceedings, and I respectfully Dissent.

. The reader, seeing the majority opinion and dissent simultaneously as parts of a single text, may find the interplay of the various arguments and counter-arguments both muddled and contradictory, since they have been composed progressively, one after another, and are found in layers like the sedimentary strata of the fossil record. I have tried to provide some sense of where in the temporal evolution of this dissent particular comments belong, but I recognize the extreme difficulty of keeping things in coherent order.

. Thus, the majority states, "When a franchisor’s violation of § 2805(f)(1) does not result in a nonrenewal of the parties' franchise relationship, a franchisee must resort to remedies outside of the PMPA to vindicate its rights under the statute." Maj. Op. at 860.

.Now, I look at what I hope (as I compose this chronologically-last footnote) is the final version of the majority and dissenting opinions. I see that in the course of numerous passages back and forth of drafts of these opinions between the majority and me (and the revisions consequent to these passages) the majority opinion seems to have evolved from emphatic disapproval of a theory of con *870 structive nonrenewal to an embrace of that approach. The majority in effect now says that Dersch made only a procedural error. Had this small gasoline distributor merely waited for a formal notice of termination instead of signing the franchise agreement under protest, he would have been free to litigate his rights under § 2805(f)(1) to his heart's content.

This is a procedural possibility not mentioned by either of the parties or by the district court nor, as far as I am aware, by anyone else in connection with the enforcement of rights under § 2805(f)(1). I am not prepared to say that constructive nonrenewal as outlined by the majority does not exist, but the majority's route is certainly not expressly provided in the words of the statute. There is nothing to indicate a preference by Congress for the solution proposed by the majority to the path outlined in Pro Sales and open to Dersch here.

However, the important thing to me is not the procedural formalities (not) observed by Dersch, but rather the possibility of maintaining suit without suffering a loss of fuel supply. My position here is that Dersch should not be deprived of this opportunity in the case before us, whether or not there was some other procedure that might have provided a similar opportunity. As I have noted, the procedure proposed by the majority is far from clear from the text of the statute and seems to me in no way superior to the Pro Sales approach.

Nonetheless, I am pleased that this dissent has apparently resulted in the concession that constructive nonrenewal is alive and well— albeit in a slightly different form than that pursued by Dersch and Pro Sales. How these developments will be viewed by the franchisor community remains to be seen. In the responses of the majority to this dissent, franchisors may have won the battle but lost the war.

. See Maj. Op. at 856 (“In order to prevail, the franchisee must prove, as a threshold matter, a ... nonrenewal of its franchise.”); Maj. Op. at 862 ("We, therefore, conclude that if a ... coerced relinquishment of [a federal or state] right does not result in a nonrenewal of the parties' franchise relationship, the franchisee must resort to remedies outside the PMPA context to enforce § 2805(f)(l)’s release and waiver prohibition.”); Maj. Op. at 862 ("[I]f a franchisor impermissibly conditions the renewal of a franchise relationship on the franchisee releasing or waiving federal or state law rights, and the franchisee’s refusal to agree to this conditional renewal results in the nonrenewal of that relationship, the franchisor's violation of § 2805(f)(1) may be examined in conjunction with the franchisee's claim for the nonrenewal of its franchise relationship.”).

.The majority's responses to my dissent appear to recognize subliminally that it is on perilous ground with its newly conceived acknowledgment that actual nonrenewal is not a precondition to PMPA relief. Because the statute does not expressly require statutory notice as a precondition to the preliminary relief cited by the majority (it merely requires the still indeterminate concept of "nonrenewal” contained in § 2805(b)(2)(A)(i)), the natural next question is why must we adopt the majority’s requirement of formal statutory notice? The majority answers that question by citing to the district court of the Southern District of Texas for its proposition that the absolute earliest moment at which PMPA relief is available is at the time formal statutory notice is given under § 2804(a). Shell v. Shell Oil Co., 216 F.Supp.2d 634 (S.D.Tex.2002). However, the majority fails to indicate how, within this analytical framework, Beachler’s plaintiffs could have, any more than Dersch, had a cause of action for nonre-newal based on Amoco having “announced its intention[s]”; a circumstance that, like the take-it-or-leave-it offer given Dersch, evidences a total lack of formal statutory notice of nonrenewal. Beachler, 112 F.3d at 902 . Texas' admittedly extensive understanding of all things petroleum notwithstanding, Beach-ler is good law in this circuit and is extensively relied upon by the majority for its test of “nonrenewal, ” and Beachler clearly does not require formal statutory notice of nonrenewal as a prerequisite to "nonrenewal.”

. Subsequent revisions of the majority opinion appear to indicate that it might, perhaps, agree with the statement in the text when it lowers its requirement for a nonrenewal suit to simply a "formalf] expression]” of an intent to nonrenew. Maj. Op. at 866 n. 20. This immediately brings to the forefront what is perhaps the true kernel of my disagreement with the majority: how and why is Dersch’s cause of action under the PMPA extinguished by its agreement under protest (ostensibly to preserve its rights under the PMPA) to the unlawful conditions that are the trigger of those very rights? In the interest of bringing this dissent to a final close, I leave that question for future discussion and possible resolution.

. The ultimate holding of Beachler , that there was no nonrenewal, does not undermine this analysis. That holding resulted from an examination of whether the prospective effect of the announced assignment would be nonre-newal. Similarly, Dersch’s case should be analyzed to determine if the prospective effect of the take-it-or-leave-it offer would be nonre-newal, which, as noted supra, I believe it would be.

. The state law sections relevant to the Disputed Provisions are set forth in the majority opinion, supra, at 851-52 nn. 4-5.

. This is an assumption, the validity of which is not clear. First, it is not clear that a contract provision in itself actually violates § 2805(f)(1). The language speaks of the conduct of the franchisor in requiring a state or federal law waiver, not of the invalidity of the provision itself. As other courts have held, requesting a waiver of a franchisee's legal rights is not, per se, illegal. It is only when that waiver is part of a take-it-or-leave-it contract, and there are threats of nonrenewal if not accepted, that § 2805(f)(1) is violated. See Coast Village, Inc., 163 F.Supp.2d at 1178 -80 nn. 38, 39 (collecting cases). There *875 fore, unless the waiver standing alone is per se illegal, Article 19 might not ever take effect.

Second, the effect of Article 19 in this context may, in some sense, be illusory. A franchisee faced with a take-it-or-leave-it contract containing provisions objectionable under § 2805(f)(1) cannot negotiate those terms, as the phrase “take-it-or-leave-it” makes clear. After the contract becomes effective, Shell is not simply going to remove those terms upon the objection of a franchisee that § 2805(f)(1) has been violated (especially under the majority’s view eviscerating such a franchisee's PMPA rights). Instead, at that point, litigation will commence. Only after a court has ruled that § 2805(f)(1) has been violated would Article 19 possibly effect an amendment of the offending provision, thereby merely duplicating, in part, what the court's ruling has already done. From this perspective, Article 19 is mere surplusage to the PMPA remedies. Although likely well-intentioned, enforcement of Article 19 might be as difficult and costly as enforcement of rights under the PMPA.

This is not to say Article 19 lacks any valid purpose. If Shell were to pursue a breach of contract action against a franchisee, the franchisee might defend by claiming the contract is void for illegality of certain provisions. Article 19 might operate in such circumstances to amend the offending contract provisions and allow the primary claim, breach of contract, to proceed on the merits. That curative use of Article 19 is starkly different from the nullifying use being advocated by Shell in this case.