dissenting.
The sole issue on appeal is whether the terms of Exxon’s offer to Keener were identical to the terms of DeFazio Oil’s offer to Exxon. See Razavi v. Amoco Oil Co., 833 F.Supp. 1, 8 (D.D.C.1993) (stating that the “right of first refusal” provision of the Petroleum Marketing Practices Act (PMPA), 15 U.S.C. § 2802(b)(3)(D)(ni)(II), obliges a franchisor to offer to sell its gasoline station to the franchisee “on terms identical to those the [franchisor] has received from another” (emphasis added)); Ellis v. Mobil Oil Corp., 708 F.Supp. 1094, 1096 (D. Ariz.1989) (same), aff'd in relevant part, 969 F.2d 784 (9th Cir.1992); see also Atlantic Ave. Oil & Gas Ltd. v. Texaco Ref. & Mktg., Inc., 699 F.Supp. 27, 31 (E.D.N.Y.1988) (“A right of first refusal is a right to buy on the same terms offered by a third party.” (emphasis added)), aff'd, 870 F.2d 93 (2d Cir.1989).
On appeal from the entry of summary judgment, we must construe the terms of the offers by viewing all of the record evidence, and all reasonable inferences that may be drawn therefrom, in the light most favorable to Keener, the party opposing summary judgment. See Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). As the franchisor, Exxon bears the burden of going forward with evidence to establish that the terms of the two offers were identical. See 15 U.S.C. § 2805(c).
Under the terms of DeFazio Oil’s offer to Exxon, DeFazio Oil gave Exxon (1) $1.2 million, and (2) an option to repurchase the service station if it ceased to be used to sell Exxon-brand motor fuel at any time in the next twenty-one years. Exxon gave DeFazio Oil (1) the station, (2) the right to display Exxon’s trademark at the station, and (3) the right to purchase a sufficient supply of Exxon-brand motor fuel, at the relatively low “rack” price, to meet the station’s needs (i.e., approximately 1.7 million gallons of fuel per year).
The terms of Exxon’s offer to Keener were much simpler: Keener would have to have given Exxon $1.2 million and Exxon would had to have given Keener the station. Clearly, the express terms of the two offers were not identical. As an example, the promise of a sufficient supply of Exxon-brand motor fuel at the “rack” price was not to be given.
Furthermore, Exxon has pointed to nothing in the record to suggest that the value of the repurchase option equalled the sum of the values of the trademark agreement and the gasoline supply commitment. Indeed, there is evidence to the contrary. Purchasing from an Exxon distributor (who would himself first purchase at the “rack” price) instead of from Exxon itself is obviously less advantageous since some additional profit would be due to the distributor. Thus, the Court has no basis for holding that the two offers were equivalent, either in their express language or in their economic worth. Therefore, I would vacate the grant of summary judgment and remand the case to the district court. '
The majority avoids that result by creating out of whole cloth a “strong presumption” that, whenever two offers contain the same purchase price, a valid right of first refusal has been extended — regardless of whether the same items were being purchased at that price. The majority’s “strong presumption” finds no support in the plain language of the PMPA or in the case law interpreting that statute. Furthermore, it makes no sense to presume that an offer to buy several valuable property interests (e.g., a station plus the right to use a trademark plus the right to distribute a supply of fuel) and an offer to buy only one of those interests (e.g., a station) are “identical” merely because the dollar amounts contained in the bids are the same. Moreover, the majority’s creation of the “strong presumption” could undermine the very purpose of the PMPA — to protect relatively weak local franchisees from the unfair business practices of powerful and sophisticated oil companies. See Barnes v. Gulf Oil Corp., 824 F.2d 300, 306 (4th Cir.1987) (“[The PMPA] was designed to benefit *134the small retailer .... (emphasis m the original)); id. at 305 (“As remedial legislation, the [PMPA] must be given a liberal construction consistent with its goal of protecting franchisees.” (citation and internal quotation marks omitted)).* Therefore, I respectfully dissent.
I recognize that the hard task of interpreting statutes can, in some cases, be aided by the application of judicially-created presumptions. See generally J. Harvie Wilkinson III, Toward a Jurisprudence of Presumptions, 67 N.Y.U. L.Rev. 907 (1992). In my view, however, this is not a proper case in which to apply such a presumption. *1391182, 1187 (4th Cir.1993). The conspiracy Count 1 may have resulted from the jury's doubt as to whether an agreement of conspirators had been proved. Count 3, on the other hand, charged an offense by the defendant alone; it required no proof of an agreement by conspirators, the existence of any not being relevant. The attempt to distribute (Count 2) concerned different drugs on a different day than Count 3.