TFWS, INC. v. FRANCHOT

No. 07-2108.

572 F.3d 186 (2009)

TFWS, INCORPORATED, d/b/a Beltway Fine Wine and Spirits, Plaintiff-Appellee, v. Peter FRANCHOT, Comptroller of the State of Maryland; Thaddeus S. Russell, Director of the Motor Fuel, Alcohol and Tobacco Tax Regulatory Division, Defendants-Appellants, and William Donald Schaefer, in his Official Capacity as Comptroller of the Treasury of the State of Maryland; Larry W. Tollier, Director, Regulatory and Enforcement Division, Office of the Comptroller of the State of Maryland; Charles W. Ehart, in his Official Capacity as Administrator of the Alcohol and Tobacco Tax Unit of the Comptroller of the State of Maryland, Defendants. Licensed Beverage Distributors of Maryland, Incorporated; American Beverage Licensees; Maryland State Licensed Beverage Association; National Beer Wholesalers Association; Wine and Spirits Wholesalers of America, Incorporated, Amici Supporting Appellants.

United States Court of Appeals, Fourth Circuit.

Decided: July 15, 2009.


Attorney(s) appearing for the Case

ARGUED: William F. Brockman, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellants. William James Murphy, Murphy & Shaffer, LLC, Baltimore, Maryland, for Appellee. ON BRIEF: Douglas F. Gansler, Attorney General of Maryland, Steven M. Sullivan, Solicitor General, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellants. John J. Connolly, Murphy & Shaffer, LLC, Baltimore, Maryland, for Appellee. Howard Graff, Deborah A. Skakel, Dickstein Shapiro, LLP, New York, New York; Robert C. Douglas, Glen K. Allen, DLA Piper U.S. LLP, Baltimore, Maryland, for Licensed Beverage Distributors of Maryland, Incorporated, Amicus Supporting Appellants. Anthony S. Kogut, John A. Yeager, Willingham & Cote, P.C., East Lansing, Michigan, for American Beverage Licensees and Maryland State Licensed Beverage Association, Amici Supporting Appellants. Stephen M. Diamond, Coral Gables, Florida; Michael D. Madigan, Katherine E. Becker, Jon R. Steckler, Madigan, Dahl & Harlan, P.A., Minneapolis, Minnesota, for National Beer Wholesalers Association and Wine and Spirits Wholesalers of America, Incorporated, Amici Supporting Appellants.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Senior Judge HAMILTON and Senior Judge HOWARD joined. Senior Judge HOWARD wrote a separate concurring opinion.


OPINION

DUNCAN, Circuit Judge:

This long-running antitrust suit is on appeal for the fourth time. Maryland now asks us to revisit and reverse our earlier holding that the state's liquor and wine (collectively, "liquor") regulatory scheme is a form of horizontal price fixing in per se violation of the Sherman Act. We decline to do so because the Supreme Court's intervening decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877...

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