                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0147p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                        X
                                                         -
 FREIGHTLINER OF KNOXVILLE, INC.; CARROLL

                                Plaintiffs-Appellants, -
 PROPERTIES, L.P.; and BUDDIE E. CARROLL,
                                                         -
                                                         -
                                                             No. 06-6054

                                                         ,
          v.                                              >
                                                         -
                                                         -
                                Defendant-Appellee, -
 DAIMLERCHRYSLER VANS, LLC,

                                                         -
                                                         -
                                           Defendant. -
 FREIGHTLINER, LLC,
                                                         -
                                                        N
                         Appeal from the United States District Court
                      for the Eastern District of Tennessee at Knoxville.
                       No. 05-00339—Thomas Varlan, District Judge.
                                           Submitted: April 19, 2007
                                     Decided and Filed: April 26, 2007
             Before: MERRITT and MARTIN, Circuit Judges; FORESTER, District Judge.*
                                              _________________
                                                    COUNSEL
ON BRIEF: Robert S. Stone, Jr., Katherine M. Hamilton, YOUNG, WILLIAMS, KIRK &
STONE, Knoxville, Tennessee, for Appellants. George W. Mykulak, Boston, Massachusetts, for
Appellee.
                                              _________________
                                                  OPINION
                                              _________________
         BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs appeal from the district court’s dismissal
of their claims under Fed. R. Civ. P. 12(b)(6). For the reasons outlined below, we AFFIRM in part
and REVERSE in part.




         *
          The Honorable Karl S. Forester, United States District Judge for the Eastern District of Kentucky, sitting by
designation.


                                                          1
No. 06-6054              Freightliner of Knoxville, Inc., et al. v.                            Page 2
                         DaimlerChrysler Vans, LLC


                                                         I
        Plaintiff-Appellant Freightliner of Knoxville, Inc. (“FOK”) is a Tennessee corporation
authorized to sell and service the Freightliner brand of medium- and heavy-duty trucks. Plaintiff-
Appellant Carroll Properties, L.P. is a Tennessee partnership that built and leased the FOK facility
to Plaintiff-Appellant Buddie E. Carroll. Carroll, a Tennessee resident who is the sole shareholder
of FOK and its president, then leased the facility to FOK.
        Defendant-Appellee DaimlerChrysler Vans, LLC (“DC Vans”) is a Delaware company
wholly owned by DaimlerChrysler, AG. DC Vans distributes a line of commercial vans known as
the “Sprinter.” Defendant Freightliner, LLC (“FLLC”) is a Delaware company also wholly owned
by the parent DaimlerChrysler, AG. FLLC manufactures vehicles marketed under the Freightliner
brand.
        FOK alleges that in February 2000, the president of FLLC presented it and a select group
of Freightliner dealers with the opportunity to sell what was to be called the “Freightliner Sprinter,”
a medium-size commercial van which could also be customized for passengers. Although it was to
be marketed in the United States under the Freightliner brand, the Sprinter was virtually identical
to a van that had been sold in Europe for many years, with tremendous success, under the Mercedes-
Benz brand. FOK believed that if it became a Freightliner Sprinter franchisee, “it would be able to
sell a great deal of product for a long time.”
        The catch, according to FOK, was that a dealer would only be selected to sell the Sprinter
if it were to upgrade its facility in a variety of ways, including (among other things): creation of a
separate showroom for Sprinter vans, so as to “segregate potential Sprinter corporate customers from
heavy-duty truck customers who frequent every Freightliner dealership for sales and service.” FOK
took the bait and accordingly changed the design plans for its planned Knoxville facility by adding
designated space for the Sprinter vans. FOK estimates that it paid $800,000 in “additional
construction costs” in order to build the new space. FOK was rewarded for its efforts: sometime
after May 2001 FLLC notified FOK that it had been approved for a Sprinter retail sales and service
agreement. At the same time, FLLC told FOK that DC Vans, and not FLLC, would be the
distributor of the Sprinter vans. This appears to have been a mere hiccup in the negotiations,
however, as on September 26, 2001, FOK entered into a dealer agreement with DC Vans for the sale
of Sprinters.
         FOK alleges that regardless of who its distributor was (FLLC or DC Vans), it had always
operated under the unwritten assumption that the Sprinter vans would be distributed exclusively to
Freightliner dealers (such as FOK), and sold exclusively under the Freightliner brand. As FOK
states in its amended complaint, “DC Vans stepped seamlessly into the shoes of FLLC. It parroted
and confirmed the distinct impression of exclusivity fostered by FLLC’s representations.” This
assumption proved mistaken, however: sometime in 2002, FOK was informed that the Sprinter1 van
would also be sold through Dodge dealers under the Dodge brand, i.e., as a “Dodge Sprinter.” To
add insult to injury, on July 19, 2002, FOK was informed that not only would the Sprinter be
concomitantly sold as a Dodge product, but also that Freightliner dealers would only be permitted
to sell Sprinter vans until 2005, at which point the vans would be sold exclusively as a Dodge
product. DC Vans has since pulled back from this hard-line stance, and has in fact amended the
record to note that it will not terminate its Sprinter agreements with Freightliner dealers, and that
the Sprinter van will simply be “dual branded” for the foreseeable future. Indeed, despite the instant
litigation, FOK and DC Vans continue to do business in Freightliner Sprinter vans pursuant to their


       1
           Dodge is yet another subsidiary of DaimlerChrysler, AG.
No. 06-6054               Freightliner of Knoxville, Inc., et al. v.                                             Page 3
                          DaimlerChrysler Vans, LLC


dealer agreement, an agreement which has now been extended through the 2007 model of
Freightliner Sprinter. D. Ct. Op. at 4.
        DC Vans’ concession notwithstanding, FOK claims that the damage was done by the mere
fact of having the rug pulled out from what it thought was an exclusive dealership agreement.
Essentially, FOK claims that it would never have entered into the dealer agreement in the first place,
nor invested $800,000 in its facility, had it known that DC Vans intended to distribute the Sprinter
under both the Dodge and Freightliner brands.2 Furthermore, FOK maintains that DC Vans has
engaged in discriminatory pricing by offering Dodge dealers “special incentives with respect to
sales of the Sprinter product.” Due to these incentives and “discounts,” Dodge dealers were
allegedly “able to offer the vans to the public at a significantly lower price than FOK was able to
offer and still make a profit.”
         FOK filed suit in federal court against FLLC and DC Vans on October 11, 2005, bringing
a total of eleven claims, some against both defendants and some only against DC Vans. Jurisdiction
was proper on the basis of diversity; additionally, because one of the claims arose under federal
antitrust law, federal question jurisdiction was properly invoked. All eleven claims were dismissed
on the pleadings by the district court. FOK now only requests that we review the following two
aspects of its original claims, both of which are directed solely at DC Vans, not at FLLC: (1)
whether it was proper for the district court to dismiss FOK’s claims under the Tennessee Trade
Practices Act, Tenn. Code Ann. §§ 47-25-1301 to 1314; and (2) whether it was proper for the district
court to dismiss FOK’s claims under the federal Robinson-Patman Act, 15 U.S.C. §§ 13 (d) and (e).
                                                           II
         We review de novo a district court’s decision to dismiss under Fed. R. Civ. P. 12(b)(6).
Adika v. Smith, 466 F.3d 503, 505 (6th Cir. 2006). “[A] complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Kottmyer v. Maas, 436 F.3d 684, 688 (6th
Cir. 2006) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). This Court “must accept all facts
in the complaint as true and construe the complaint liberally in favor of the plaintiff.” Adika, 466
F.3d at 505.
                          A. Claims under the Tennessee Trade Practices Act
         The Tennessee Trade Practices Act (“TTPA”) states that “[n]o supplier . . . may terminate,
cancel, fail to renew or substantially change the competitive circumstances of a retail agreement
without good cause.” Tenn. Code Ann. § 47-25-1302. FOK’s claims under the TTPA are twofold.
First, it alleges that by dual-branding the Sprinter van and by selling the van through Dodge
dealerships, DC Vans has effected a “substantial[] change in the competitive circumstances of a
retail agreement.” Second, it claims that DC Vans constructively terminated the retail agreement,
both by stating its intent to withdraw the van from Freightliner dealers and by providing competing
Dodge dealers with the same Sprinter product on better terms than those offered to FOK.
       In dismissing FOK’s claims, the district court ruled that the TTPA does not apply to motor
vehicles. The TTPA defines a “retailer” as a “person, firm or corporation engaged in the business


         2
           DC Vans strenuously maintains that it does not distribute, nor has it ever distributed, the Dodge Sprinter van.
Appellee’s Br. at 3 (“The only motor vehicle that DC Vans has ever distributed is the Freightliner Sprinter van.”)
(emphasis added). When reviewing a 12(b)(6) motion to dismiss, however, we must accept the plaintiff’s allegations
as true even if the defendant vehemently denies such allegations. Here, FOK alleges that DC Vans distributed not just
the Freightliner Sprinter, but also the Dodge Sprinter. See Amended Compl. ¶¶ 53, 114-21.
No. 06-6054                Freightliner of Knoxville, Inc., et al. v.                                               Page 4
                           DaimlerChrysler Vans, LLC


of selling and retailing farm implements and machinery, construction, utility and industrial
equipment, outdoor power equipment, attachments or repair parts and shall not include retailers of
petroleum products.” T.C.A. § 47-25-1301. FOK continues to assert that the Sprinter van qualifies
as “industrial equipment” under the TTPA, as it is designed ostensibly for industrial use. DC Vans
vigorously counters that the Sprinter is quite simply a motor vehicle, distinguishable from the
common understanding of “industrial equipment,” and that the presence of another Tennessee
statutory scheme which provides for the licensing and regulation of motor vehicle sales, T.C.A.
§ 55-17-101 et seq., suggests that the state legislature did not intend to include motor vehicles within
the ambit of the TTPA. There are apparently no Tennessee authorities that definitively address
whether “industrial equipment” includes motor vehicles used for industrial purposes under the
TTPA.
        We frankly find the language of the TTPA to be rather vague and unhelpful, and are
disinclined to endorse the district court’s sweeping interpretation of this statute without more
guidance from the Tennessee legislature or courts. We find it unnecessary to resolve this dispute,
however, because even assuming that the TTPA governs the distribution and sale of the Sprinter van,
FOK has failed to allege facts that would amount to a violation of the statute.
        First, FOK’s claim that DC Vans has “substantially change[d] . . . the competitive
circumstances of [the] retail agreement,” is undercut by the plain terms of the retail agreement itself,
which FOK quoted in relevant part in the Amended Complaint. In the retail agreement, DC Vans
“retains all rights and discretion with respect to the manufacture, distribution, sales and service of
motor vehicles, . . . including the rights (a) to sell and service Contract Goods in the Primary Market
Area . . . (b) to appoint other dealers in the Primary Market Area on terms and conditions deemed
appropriate . . . .” Amended Compl. ¶ 36 (emphasis added). This provision explicitly contemplates
the sale of Sprinter vans through other dealers. Consequently, DC Vans’s decision to sell the vans
through Dodge dealers was actually provided for in the retail agreement. Neither the Amended
Complaint nor FOK’s brief identifies any portion of the retail agreement that precludes DC Vans
from dual-branding the Sprinter van or from specifically selling it through Dodge. Nor does any
portion of the amended complaint indicate that the retail agreement speaks to how the terms of the
agreement between DC Vans and FOK should compare to the terms offered to any other dealers.3
A straightforward reading of the agreement belies FOK’s argument that DC Vans’s business
relationship with Dodge amounted to a change in the competitive circumstances of the retail
agreement under the TTPA, as this relationship is explicitly anticipated in the agreement itself.
        FOK makes a number of factual allegations pertaining to representations made by DC Vans
prior to the execution of the retail agreement. The Amended Complaint alleges that based on these
representations FOK was led to believe that Freightliner would be the exclusive dealer of the
Sprinter van. See Amended Compl. ¶ 18. Even taken as true, the allegations of such representation
are not enough for FOK’s claim of changed competitive circumstances to survive, as they stand in
stark contrast to the terms that were eventually included in the retail agreement. See Staubach Retail
Services-Southeast, LLC v. H. G. Hill Realty Co., 160 S.W.3d 521, 525 (Tenn. 2005) (“The parol
evidence rule does not permit contracting parties to ‘use extraneous evidence to alter, vary, or
qualify the plain meaning of an unambiguous written contract.’ Furthermore, to allow a party to a
contract to admit that the party signed the contract but to deny that the terms of the contract express
the party’s agreement would destroy the value of contracts.” (internal citations omitted)). Moreover,

         3
          This is not to say that other forms of relief that are based on differences between the terms offered to respective
dealers and that find their source outside the contract, such as FOK’s Robinson-Patman Act claim, are necessarily
precluded by the retail agreement. Unlike other such forms of statutory relief, however, the TTPA incorporates the retail
agreement by reference, and by so doing would appear to render unavailable a claim based on changed competitive
circumstances to the agreement where the agreement itself provides such rights to the supplier.
No. 06-6054               Freightliner of Knoxville, Inc., et al. v.                                           Page 5
                          DaimlerChrysler Vans, LLC


DC Vans cannot be said to have somehow pulled a fast one on FOK by memorializing different
terms than the parties discussed, as it had FOK sign a Release that discharged any prior obligations
owed to FOK by DC Vans, including claims based upon any prior “agreement” or “representation.”
The retail agreement itself also stated that it “constitute[s] the Parties’ entire agreement relating to
selling and servicing Contract Goods,” and “supercedes all prior negotiations, understandings and
agreements, written or oral, relating to its subject matter.” If FOK had any doubts about whether
it maintained an exclusive right to sell the Sprinter van based on prior discussions between the
parties, despite the contrary language in the retail agreement, the explicit provisions of the release
and the retail agreement should have cleared them up. Any such representations were clearly and
intentionally excluded from the retail agreement, and FOK cannot now rely on them to support its
claim that DC Vans changed the agreement’s competitive circumstances.
        FOK also fails to allege facts to support its claim that DC Vans terminated the retail
agreement. Although the complaint alleges that DC Vans constructively terminated the agreement
by dual-branding the Sprinter vans and distributing them through Dodge, such distribution was
specifically contemplated in the agreement. We would be hard-pressed to read FOK’s factual
allegations to include a claim of constructive termination of the agreement based on actions taken
by DC Vans that were provided for by the very terms of the agreement itself.
        Additionally, FOK contends that DC Vans terminated the agreement by advising FOK that
it would stop distributing Sprinter vans under the Freightliner brand after 2005. This allegation
could be read to present a claim for anticipatory breach, presenting us with the potentially interesting
legal question of whether anticipatory breach amounts to “termination” under the TTPA. Yet FOK
now concedes that DC Vans has decided not to withdraw the Freightliner Sprinter from the market
and to offer an extension of the dealer agreement, effectively terminating its termination claim. This
concession forces FOK to put all its eggs in the “changed competitive circumstances” basket based
on the dual-branding of the vans, an argument which we reject under the terms of the contract as
discussed above.
      For these reasons, we affirm, albeit on different grounds, the district court’s dismissal of
FOK’s claims under the TTPA.
                               B. Claims under the Robinson-Patman Act
       The Robinson-Patman Price Discrimination Act (“RPA”) amends portions of the Clayton
Antitrust Act and is codified at 15 U.S.C. §§ 13(a),4 (d), and (e). FOK’s amended complaint,
however, alleges violations of §§ 13(d) and (e) only. These two sections of the RPA “deal with
discrimination in the field of promotional services made available to purchasers who buy for resale.”
Lewis v. Philip Morris Inc., 355 F.3d 515, 521-22 (6th Cir. 2004). The language of the sections
provides as follows:
         (d) Payment for services or facilities for processing or sale
         It shall be unlawful for any person engaged in commerce to pay or contract for the
         payment of anything of value to or for the benefit of a customer of such person in the


         4
           Nowhere in FOK’s original or amended complaint is §13(a) even mentioned, and Count XI—which outlines
the RPA claims—refers exclusively to §§ 13(d) and (e). Thus, to the extent that FOK now argues that its complaint
should be construed so as to encompass alleged § 13(a) violations as well, Appellant’s Br. at 21-23, this argument comes
too late. See Clark v. National Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975) (“[T]here is no duty on the
part of the trial court or the appellate court to create a claim which appellant has not spelled out in his pleading.”)
(internal quotation marks and parentheses omitted).
No. 06-6054           Freightliner of Knoxville, Inc., et al. v.                                  Page 6
                      DaimlerChrysler Vans, LLC


       course of such commerce as compensation or in consideration for any services or
       facilities furnished by or through such customer in connection with the processing,
       handling, sale, or offering for sale of any products or commodities manufactured,
       sold, or offered for sale by such person, unless such payment or consideration is
       available on proportionally equal terms to all other customers competing in the
       distribution of such products or commodities.
       (e) Furnishing services or facilities for processing, handling, etc.
       It shall be unlawful for any person to discriminate in favor of one purchaser against
       another purchaser or purchasers of a commodity bought for resale, with or without
       processing, by contracting to furnish or furnishing, or by contributing to the
       furnishing of, any services or facilities connected with the processing, handling, sale,
       or offering for sale of such commodity so purchased upon terms not accorded to all
       purchasers on proportionally equal terms.
15 U.S.C. § 13 (emphasis added). As this Court has said, if the seller (here, DC Vans) pays the
retailer (here, Dodge dealerships) to perform the promotional service, § 13(d) applies. Lewis, 355
F.3d at 522. Whereas if the seller itself provides the promotional service to the retailer, § 13(e)
applies. Id. This is often a fine distinction and thus the two sections “tend to be considered
together” as a “harmonious whole.” Id. At bottom, “[t]he aim of both sections is to eliminate
devices by which preferred buyers obtain discriminatory preferences under the guise of promotional
allowances.” Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319, 1327 (6th Cir. 1983) (citing
Federal Trade Comm. v. Fred Meyer, Inc., 390 U.S. 341, 349-50 (1968)).
        The “services or facilities” envisioned by the RPA are not explicitly defined within the text
of the Act, but they have been construed to include “any kind of advertising, catalogs,
demonstrators, display and storage cabinets, display materials, hand bills, special packaging or
package sizes, warehouse facilities, accepting returns for credit, prizes or merchandise for
conducting promotional contests, and ‘monetary awards’ paid by the seller to clerks, salesmen, and
other employees of the customer for special sales or promotional efforts.” Lewis, 355 F.3d at 522
(quoting Cecil Corley Motor Co. v. General Motors Corp., 380 F. Supp. 819, 851 (M.D. Tenn.
1974)); see also Barbara O. Bruckman, Discounts, Discrimination, and Exclusive Dealing: Issues
under the Robinson-Patman Act, 68 ANTITRUST L.J. 253, 278 (2000) (“Section 2(d) has been applied
to a broad range of promotional payments, including cooperative advertising programs, rebates that
a retailer must pass to consumers, payments for customer mailings, payments for preferred shelf
space, payments for institutional advertising (i.e., advertising the buyer’s business generally), and
unjustified off-invoice deductions for promotional allowances. ‘Services’ and ‘facilities’ covered
by Section 2(e) have been held to include handbills, demonstrators, catalogues, cabinets, display
racks, prizes or merchandise for conducting promotional contests, point-of-sale materials,
advertising services, providing personnel whose salaries are paid in whole or in part by the seller,
background music with periodic advertisements, letters announcing a new distributor but not
mentioning competing distributors, special packaging or package sizes, and marketing support.”)
(citations omitted). The list is not exhaustive, however, for many incentives have been held not to
be within the prohibitions of §§ 13(d) and (e), such as “a supplier’s offering favorable credit terms
or authorizing the extension of credit to select customers.” Cecil Corley Motor Co., 380 F. Supp.
at 851 (internal citations omitted).
       In its amended complaint, FOK states that because the Sprinter vans distributed by DC Vans
to FOK and Dodge dealers were “of like grade and quality,” and because the relevant consumer
markets of the FOK and Dodge dealerships were geographically equivalent, DC Vans violated
§§ 13(d) and (e) of the RPA by offering “incentives” to the Dodge dealers that it did not make
available to FOK. Amended Compl. at ¶¶ 111-18. Specifically, FOK alleges that “DC Vans offers,
No. 06-6054           Freightliner of Knoxville, Inc., et al. v.                                  Page 7
                      DaimlerChrysler Vans, LLC


or has offered while FOK is a retailer of Freightliner Sprinter vans, the Dodge Sprinter van to Dodge
dealerships in FOK’s area of responsibility or market area with incentives that grant to Dodge
dealerships the right to receive greater allocation of high demand Dodge brand heavy duty trucks.”
Id. at ¶ 118. Paragraph 53 of the amended complaint, which is incorporated by reference into the
RPA count via paragraph 111, further states:
        FOK has suffered the effects of unfair competition from Dodge dealers with
        incentive packages not offered to FOK. Upon information and belief, DC Vans
        commenced selling the Sprinter vans through the Dodge Business Link program
        providing direct customer benefits such as first service bay priority and first service
        technician priority. These sales benefits were not available to Freightliner Sprinter
        customers. These benefits are valuable sales incentives and make a substantial
        difference as to where or from whom a potential customer will purchase a Sprinter
        product.
The “incentives” that FOK alleges were offered to Dodge dealers—and not to FOK—are thus
twofold: (1) the right to receive more Dodge heavy-duty trucks, and (2) incorporation of Dodge
Sprinters into the Dodge “Business Link” program, a service which apparently would give end users
of a Dodge Sprinter some form of priority when having their van serviced at Dodge dealerships.
        As to the first alleged incentive, it is unclear how close a nexus exists between DC Vans and
the Dodge heavy-duty trucks — for while FOK alleges that DC Vans distributes the Dodge Sprinter,
it does not allege that DC Vans distributes Dodge vehicles generally. Thus it is unclear how DC
Vans would even have the power to provide those Dodge dealers that elected to market the Sprinter
van with a “greater allocation of high demand Dodge brand heavy duty trucks.” Appellee’s Br. at
25. Furthermore, the alleged allocation of Dodge heavy-duty trucks would not appear to be a
discriminatory practice under §§ 13(d) or (e). Even if true, it is a practice incident to the original
sale of the Sprinter (i.e., the sale of the Sprinter from DC Vans to Dodge dealers) rather than
incident to its subsequent resale (i.e., the resale of the Sprinter from a Dodge dealer to an end user).
See Bouldis, 711 F.2d at 1328 (noting that “the extension of credit is a practice incident to the
original sale rather than to the subsequent resale of the product, and, therefore, outside the coverage
of §§ 2(d) & 2(e)”). While Bouldis dealt with a seller’s extension of credit to various dealers, we
see no reason why the same principles should not also apply to the seller’s extension, as here, of a
greater allocation of vehicles totally unrelated to the Sprinter.
        As to the second alleged incentive, however, we cannot affirm the district court’s decision,
because our standard of review of a 12(b)(6) motion to dismiss requires that we “construe the
complaint liberally in favor of the plaintiff.” Adika, 466 F.3d at 505. In fact, the district court seems
to have entirely passed over FOK’s allegation that DC Vans violated the RPA by participating with
its Sprinter vans in the Dodge “Business Link” program. While DC Vans likely did not create the
Dodge “Business Link” program, a program which presumably predates by some time the
introduction of the Sprinter van to Dodge dealerships, we cannot exclude the possibility that DC
Vans somehow tied the distribution of the Sprinter van to this alleged incentive. And unlike the
greater-allocation-of-heavy-duty-trucks incentive, the Business Link incentive may well be incident
to resale of the Sprinter vans. See Bouldis, 711, F.2d at 1328. If end users who buy a Sprinter van
from a Dodge dealer are, for example, given priority at that dealership in getting their van serviced
(which is what “first service bay priority” and “first service technician priority” would seem to
indicate), this is a promotional service provided directly to the consumer.
      The critical question is likely to be whether DC Vans payed for these extra services with
Dodge dealers and yet did not offer the same payments or equivalent incentives to FOK, or whether
Dodge dealers already had the “Business Link” program in place and simply offered, of their own
No. 06-6054                Freightliner of Knoxville, Inc., et al. v.                                              Page 8
                           DaimlerChrysler Vans, LLC


accord, to provide these incentives to customers who purchased the Sprinter van. Without the
benefit of discovery, however, it would seem virtually impossible for FOK to answer this question;
for without discovery, we have no way of knowing exactly what the incentive structure was between
DC Vans and its Dodge dealers, or if in fact such an incentive structure existed at all. See also
Appellant’s Br. at 20 (“Count XI should not have been dismissed without an opportunity for FOK
to conduct discovery into the scope and manner in which the Dodge Business Link program benefits
were provided to the Dodge Sprinter dealers.”). FOK’s claims under the RPA may well be highly
speculative, and discovery may well reveal that they are futile, but we cannot—nor can the district
court—make such a determination based on the pleadings alone.5
                                                            III
        Based on the above discussion, the judgment of the district court is AFFIRMED in full,
except as to FOK’s claims under the Robinson-Patman Act, which we REVERSE and REMAND
for further proceedings. Specifically, FOK’s allegation that DC Vans violated § 13(d) and (e) of the
RPA should be allowed to proceed to discovery with respect to the theory asserted in Paragraph 53
of its amended complaint.




         5
            We note that this Court’s Bouldis decision, on which both the district court and DC Vans so heavily rely in
rejecting FOK’s claims under the RPA, was decided at the summary judgment stage, not the 12(b)(6) stage. There, a
determination of which practices were “incident to the original sale” versus “incident to the subsequent resale” of a
product was only made after the parties had “engaged in extensive discovery, including interrogatories, requests for
documents and depositions.” 711 F.2d at 1323. Only after discovery was the district court in Bouldis able to discern
the true relationship between distributor, retailer, and consumer, and thus only after discovery was the court able to state
with confidence that the plaintiff’s §§ 13(d) and (e) claims were meritless. Id. at 1328-29.
