Windy Cove, Inc., a California corporation, et al. v. Circle K Stores, Inc., a Texas corporation

Whether all gasoline, including branded gasoline, is a fungible commodity.

Whether in an open price term contract governed by California Commercial Code §2305 (adopted from Uniform Commercial Code §2-305), setting wholesale prices by using a method and manner that is not standard within the industry nor used by any other wholesale distributor pushes a case out of Uniform Commercial Code §2-305’s good faith safe harbor provision.

Whether in an open price term contract governed by California Commercial Code §2305 (adopted from Uniform Commercial Code §2-305), the proper “in the range” price comparison analysis in determining whether a seller’s price is commercially reasonable (and thus set in good faith) is (a) a comparison between those within the same class of trade as the seller/merchant or (b) a comparison between those whom the seller considers to be its “competitors” regardless of class of trade.