MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Plaintiffs Louis Glunz Beer, Inc., Waukegan Jack Donelson Sales Co., B.B. Distributors, Inc., Grant Importing & Distributing, Southwest Beer Distributors, Schamberger Brothers, Inc., Radakovich Liquor & Beverage Co., Brownstone Beverage, Co., and Hartman Beverage, Co. bring this six-count complaint against Martlet Importing Co., Inc., Molson Breweries U.S.A., Inc., and Miller Brewing Co., Inc., seeking injunctive relief, compensatory damages, and punitive damages. Presently before the court is defendants' motion to dismiss plaintiffs' complaint.
For the reasons set forth below, the motion is granted in part and denied in part.
Defendant Martlet Importing Company, Inc. ("Martlet") is a division of defendant Molson Breweries U.S.A., Inc. ("Molson U.S.A."), which in turn is a subsidiary of defendant Miller Brewing Company, Inc. ("Miller"). Miller owns the rights to market all products produced under the "Molson" brand and trademark in the United States, pursuant to a licensing agreement with the Molson Companies, Ltd. the Canadian company which manufactures Molson products.
In 1979, Martlet appointed plaintiff Louis Glunz Beer, Inc. ("Glunz") as the master distributor for all Molson products in Illinois. In this role, Glunz appointed, with Martlet's approval, other beer wholesalers to act as sub-distributors for these products. Some of the plaintiffs in this action were among this original group of sub-distributors, while others became sub-distributors in subsequent years. In 1986, Glunz's role as master distributor was terminated. Instead, Martlet began to deal directly with the former subdistributors. And although its role as master distributor was eliminated, Glunz retained the right to serve as the exclusive distributor in the territory it had been assigned.
Martlet initially supplied the original Chicago-area Molson distributors with three products: Molson Golden, Molson Canadian, and Molson Ale. Over the years, as Molson Companies introduced new Molson products, Martlet requested that plaintiffs add these products to their portfolios. Plaintiffs allege that it was their obligation, under their agreements with defendants, to agree to these requests and to sell all Molson brand beers that Molson wanted to market in their respective territories. In addition, plaintiffs allege that, as new Molson brands were made available for distribution, Martlet was obligated to appoint plaintiffs to distribute the new products in the plaintiffs' territories.
In January, 1993, Molson Companies announced that it had sold Molson U.S.A. to Miller. This purchase was announced to plaintiffs in a letter from Molson U.S.A. president John Barnett which read in part:
Molson Breweries USA will continue to operate as a stand-alone business - selling, marketing and distributing in the United States, and we plan to continue business as usual with our distributors and customers.
Later that year, in July, 1993, Martlet advised plaintiffs that the Molson brewery planned to introduce a new product called "Molson Ice," and that this new product would be distributed by plaintiffs along with the other Molson products they already handled. A few months later, Martlet sent registration statements to the Illinois Liquor Control Commission designating plaintiffs to be the authorized distributors of Molson Ice in their respective territories, as Martlet had routinely done in the past when introducing new products in the Chicago area.
In October 1993, however, each plaintiff received from Martlet a document entitled "Settlement of Claims and Release," which purported to be in response to each plaintiff's offer to terminate its relationship with Martlet, although none of the plaintiffs had, in fact, made such an offer to Martlet. At this same time, plaintiffs heard rumors that Miller intended to transfer distribution of all Molson products from plaintiffs to Miller's own distributor network, and that Miller had promised Miller distributors the distribution rights for Molson Ice. Nonetheless, in early November, 1993, upon a request from the Illinois Liquor Control Commission, Martlet resubmitted registration statements for Molson Ice, which again designated plaintiffs as the Molson Ice distributors in their respective territories.
On November 4, 1993, counsel for defendants and plaintiffs agreed to meet on November 19, 1993. In the interim, on November 12, 1993, counsel for defendants advised counsel for plaintiffs that Miller was appointing Doyle Distributing Co., Inc., a Miller distributor, to distribute Molson Ice in Lake County, Illinois.
At the November 19 meeting, however, defendants advised the remaining plaintiffs that they had not yet made a decision regarding Molson Ice distribution for the metro Chicago market.
Less than a month later, on December 15, 1993, three Chicago metro area Miller distributors began, at the direction of defendants, marketing Molson Ice in the geographic area for which Glunz had previously been exclusively responsible.
On that same day, Glunz received a letter from Martlet advising it that Glunz' distributorship for all Molson products was terminated, effective March 31, 1994. The letter offered no reason for the termination.
With respect to the remainder of the plaintiffs, Martlet refrained from providing furnishing them with materials for a midwestern promotion campaign, advising one of the plaintiffs that "under the circumstances" plaintiffs would not be allowed to participate. In addition, Martlet failed to offer price support for the first quarter of 1994, and cancelled several price promotions it had planned for November and December.
Furthermore, Osco Drug Store, one of plaintiffs' most significant customers, did not schedule any December, 1993 promotions for Molson products, contrary to its usual practice. Martlet is responsible for negotiating with Osco regarding its participation in promotions. Defendants have not, however, terminated any distributorship other than Glunz'.
Plaintiffs filed the present lawsuit seeking damages and injunctive relief, to prevent defendants from appointing beer wholesalers other than plaintiffs as distributors for Molson Ice in the Illinois territories in which each plaintiff has previously been the exclusive distributor, and to prevent defendants from depriving plaintiffs of their distribution rights for all Molson products.
II. Motion to Dismiss Standard
A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth).
A. Coverage of the Beer Industry Fair Dealing Act
Count I of plaintiffs' complaint asserts various violations of the Beer Industry Fair Dealing Act (BIFDA), 815 ILCS 720/1 et seq. Defendants move to dismiss this count, arguing that plaintiffs' relationship with defendants is not covered by BIFDA, since that statute only applies to agreements which are entered into after August 19, 1982. 815 ILCS 720/10. This issue, however, was largely resolved by Magistrate Judge Lefkow in ruling on plaintiffs' motion for a preliminary injunction. Specifically, she found that the plaintiffs essentially entered into new agreements with defendants in 1986, when Glunz ceased acting as master distributor and Martlet began dealing with each plaintiff as an individual distributor. Because the contractual relationships between the parties were significantly altered, Magistrate Judge Lefkow concluded, BIFDA came into play. See Report and Recommendation at 20-21 (Apr. 4, 1994); Report and Recommendation at 2-3 (Sept. 19, 1994). See also Northwest Lincoln-Mercury v. Lincoln-Mercury Div. Ford Motor Co., 158 Ill. App. 3d 609, 511 N.E.2d 810, 813, 110 Ill. Dec. 633 (Ill. App. Ct.), appeal dismissed, 113 Ill. Dec. 303, 515 N.E.2d 112 (Ill. 1987). We agree with Magistrate Judge Lefkow's analysis, and therefore adopt it here. Accordingly, we reject defendants' arguments that BIFDA does not apply in the present action.
Defendants next maintain that, even if BIFDA does apply, Count I must be dismissed with respect to all plaintiffs but Glunz. Defendants assert that the non-Glunz plaintiffs are essentially complaining about defendants' failure to select them to distribute Molson Ice in the Chicago area. Defendants argue, however, that "inasmuch as 'Molson Ice' is a new brand, it has never been the subject matter of the parties' agreement," and plaintiffs therefore have no right to distribute it. Accordingly, they argue that, even if they were to appoint only Miller distributors to distribute Molson Ice, there would be no violation of BIFDA. We disagree. In their complaint, plaintiffs allege that the understanding and practice of the parties gave rise to a set of mutual obligations with respect to new Molson products. Specifically, plaintiffs allege that, as new products became available, plaintiffs were required to distribute those products in their respective territories, and Martlet was required to appoint plaintiffs to do so. In short, plaintiffs have alleged that the right to distribute all new Molson products was in fact a part of the agreement between the parties. If this is the case, then appointment of Miller distributors in plaintiffs' territories would constitute a violation of BIFDA. See 815 ILCS 720/5.
Accordingly, defendants' motion to dismiss the BIFDA claims is denied.
Defendants next move to dismiss plaintiffs' fraud claim. Plaintiffs assert that defendants represented, through various means, that plaintiffs would continue to serve as the exclusive distributors for Molson products, including Molson Ice, in their respective territories. In reliance upon these promises, plaintiffs claim that they "continued to invest substantial efforts of time and other resources to promote all the Molson Products." Cmplt. at P 109. However, plaintiffs assert, these statements were false, in that Miller intends to turn over distribution of all Molson products to Miller distributors.
Accordingly, plaintiffs maintain that they have stated a claim for fraud. We disagree.
As a general rule, under Illinois law, "misrepresentations of intention to perform future conduct, even if made without a present intention to perform, do not generally constitute fraud. . . ." HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill. 2d 145, 545 N.E.2d 672, 682, 137 Ill. Dec. 19 (Ill. App. Ct. 1979) (citation omitted). However, an exception to this rule exists "if the false promise or representation of future conduct is alleged to be the scheme employed to accomplish the fraud." Id. (internal quotations omitted). Further, to warrant application of this exception, a plaintiff must demonstrate
(1) a promise or representation was a deliberate fraud by which a party has been induced to act to his damage; and (2) the existence of the fraud relied upon was shown by something more than just a broken promise.