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COSTCO WHOLESALE CORP. v. MALENG

Nos. 06-35538, 06-35542, 06-35543.

514 F.3d 915 (2008)

COSTCO WHOLESALE CORPORATION, a Washington corporation, Plaintiff-Appellee, v. Norm MALENG, Defendant, Washington Beer & Wine Wholesalers Association, Defendant-Intervenor, and Roger Hoen; Vera Ing; Merritt D. Long, in their official capacities as members of the Washington State Liquor Control Board, Defendants-Appellants. Costco Wholesale Corporation, a Washington corporation, Plaintiff-Appellee, v. Norm Maleng; Roger Hoen; Vera Ing; Merritt D. Long, in their official capacities as members of the Washington State Liquor Control Board, Defendants, and Washington Beer & Wine Wholesalers Association, Defendant-Intervenor-Appellant. Costco Wholesale Corporation, a Washington corporation, Plaintiff-Appellant, v. Norm Maleng, Defendant, and Roger Hoen; Vera Ing; Merritt D. Long, in their official capacities as members of the Washington State Liquor Control Board, Defendants-Appellees, Washington Beer & Wine Wholesalers Association, Defendant-Intervenor-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed January 29, 2008.

Attorney(s) appearing for the Case

David J. Burman, Perkins Coie, LLP, Seattle, WA, argued the cause and filed briefs on behalf of Costco Wholesale Corporation. Also on the briefs were Michael Sandler, Shyla R. Alfonso, Kenneth Morissette Jr., and Jeffrey M. Hanson.

Martha P. Lantz, Assistant Attorney General, State of Washington, Tumwater, WA, argued the cause and filed briefs on behalf of Roger Hoen, et al. and the State of Washington. Also on the briefs were Rob McKenna, Attorney General, State of Washington, David M. Hankins, Assistant Attorney General, State of Washington, and Jay D. Geck, Deputy Solicitor General, Olympia, WA.

John C. Guadnola, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim LLP, Tacoma, WA, argued the cause and filed briefs on behalf of the defendantintervenors, Washington Beer and Wine Wholesalers Association. Also on the briefs were. J. Bradley Buckhalter, Andrea H. McNeely and Paul R. Romain.

John .D. Wilson & Alfred E. Donohue, Seattle, WA, for Korean-American Grocers Ass'n (In support of Appellants).

David A. Malone, Tacoma, WA, for Washington Food Industry & Northwest Grocery Ass'n (In support of Appellee).

Anthony S. Kogut, East Lansing, MI, for American Beverage Licensees Ass'n (In support of Appellants).

Hardy Myers, Attorney General, State of Oregon, Mary H. Williams, Solicitor General, State of Oregon & Paul L. Smith, Assistant Attorney General, State of Oregon, Salem, OR, for The State of Oregon (In support of Appellants).

Arthur J. Decelle, Washington, DC, Anne Kimball & Sarah Olson, Chicago, IL, and Christopher W. Tompkins, Seattle, WA, for The Beer Institute (In support of Appellants).

Peter Danelo & Justo Gonzales, Seattle, WA, for Washington Restaurant Ass'n (In support of Appellee).

James M. Goldberg, Washington, DC, for National Alcohol Beverage Control Ass'n Inc. (In support of Appellants).

Michael Madigan & Katherine Becker, Minneapolis, MN, for National Beer Wholesalers Ass'n & Wine and Spirits Wholesalers of America (In support of Appellants).

Jim Petro, Attorney General, State of Ohio, Peter M. Thomas, Senior Deputy Attorney General, State of Ohio & Todd R. Marti, Assistant Solicitor, State of Ohio, Columbus, OH, for The State of Ohio and 22 other states (In support of Appellants).

Before: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and MARSHA S. BERZON, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

In these consolidated appeals, we must decide whether certain restrictions imposed by the State of Washington on the sale of wine and beer are preempted by federal antitrust laws. If the challenged restraints are subject to federal preemption, we must then decide whether they might be otherwise saved by operation of the State's powers under Section 2 of the Twenty-first Amendment to the United States Constitution.

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