Home Oil Co., Inc. v. Sam's East, Inc., 202 F. Supp. 2d 1307 (M.D. Ala. 2002)

H. Dean Mooty, Jr., Mooty & Associates, PC, Montgomery, AL, for Home Oil Co., Inc.

Steven A. Benefield, Clark A. Cooper, Greer B. Mallette, A. Melissa Boles, Christian & Small, LLP, Birmingham, AL, Jon Comstock, Bentonville, AR, for Wal-mart Stores, Inc., Sam's East, Inc.

MYRON H. THOMPSON, District Judge.

In accordance with the order of this court entered on April 26, 2002, 2002 WL 857391, 199 F. Supp. 2d 1236 (M.D.Ala. *1308 2002), it is ORDERED, ADJUDGED, and DECREED as follows:

(1) Defendant Sam's East, Inc., its officers, agents, servants, employees, and attorneys, and any other person, firm, association, organization, partnership, business trust, join stock company, corporation, or legal entity acting in concert with defendant Sam's East, Inc., directly or indirectly, be, and they hereby are each, PRELIMINARILY ENJOINED and RESTRAINED from violating the Alabama Motor Fuel Marketing Act (AMFMA), 1975 Ala.Code § 8-22-6, by selling any grade of motor fuel to the general public or to holders of a "Sam's Club Membership Card" at defendant Sam's East, Inc.'s station located at 3440 Ross Clark Circle in Dothan, Alabama, at a retail price per gallon that is less than defendant Sam's East, Inc.'s cost of such motor fuel as defined in the AMFMA, 1975 Ala.Code § 8-22-4(16).

(2) For purposes of the AMFMA compliance calculation, the "cost of doing business or overhead expenses" variable, as defined in 1975 Ala.Code § 8-22-4(17), must be the cost of doing business particularly attributable to the gasoline aspect of the Sam's Club business.

(3) For purposes of this order, the cost or price of the Sam's Club membership may not be used, pursuant the "combined sale" statute, 1975 Ala.Code § 8-22-10, in determining whether there has been, and is, AMFMA compliance.

(4) It is defendant Sam's East, Inc.'s responsibility to calculate accurately and clearly the club's cost of doing business as well as the other component costs of the AMFMA calculation such that compliance with this injunction may be monitored.

(5) Nothing in this order shall prevent defendant Sam's East, Inc. from selling below its cost at Sam's Club, provided defendant Sam East, Inc. is acting in good faith to meet an equally low price of a competitor within the same market area on the same level of distribution selling the same or a similar product of like grade and quantity, as authorized by 1975 Ala.Code § 8-22-8(b), or from asserting any other affirmative defense allowed by the AMFMA.

(6) This preliminary injunction shall become effective upon the posting by plaintiff Home Oil Company, Inc. of a $ 50,000 bond as security in such form as acceptable to the court.