Well the sordid ten year history of the TFWS case is over. There will be no appeal to the United States Supreme Court. In order to save the state money from attorneys fees, the state will not appeal in exchange for not having to pay attorney fees. In a fee settlement agreement filed with the court the state will save its money and donate some of the fees to an alcohol rehabilitation center.
Because of this settlement, there remains a circuit conflict between 4th and 9th Circuit on issue of volume discount ban.
Clock ticking in Maryland… Cert petition due Jan 8,2010
UPDATE: Looks like folks will be busy working over the end of the year holiday season. Maryland has until January 8 to file a cert petition in the TFWS matter. http://origin.www.supremecourtus.gov/docket/09a400.htm
The possibility of Supreme Court review of the intersection betweeen state action, 21st Amendment and the Sherman Antitrust Act increased with Maryland seeking more time to file a writ of certiorari in the TFWS case.
Maryland has sought an extension until December 9 to file its Writ. If granted and fully briefed by the other side the earliest the court could decide to accept this case would most likely be February. It is unclear if that would be enough time for the court to consider this case before the end of its term in June.
Obviously there is much more to be written in the TFWS saga. Stay tuned here. Click here for a copy of Maryland’s petition.
UPDATE: That was quick. The 4th Circuit said “No Thank You” to the state’s request for a rehearing en banc. According to the order no judge asked to keep this 10 year old case going.
Next step: Maryland decides whether to appeal to the U.S. Supreme Court.
Yesterday the state of Maryland filed a petition for rehearing en banc for the 4th Circuit. Recall this was a challenge to Maryland alcohol regulations on volume discount ban, price posting and price holding for wine and liquor. This is an important development as it is an opportunity for the tortured 10 year old history of this case to be reviewed. To me, certain aspects of this case were caught in a continuous cycle/rut of deference to previous rulings on narrow issues that failed to permit the judges the opportunity to comprehensively look at the entire case from start to finish. It would be nice for the 4th Circuit to look at the entire case, not just one issue.
The Maryland Attorney General’s brief highlighted four main issues for appeal: 1) The unfair heightened scrutiny facing state alcohol regulations duly authorized by the 21st Amendment; 2) the court’s failure to sever aspects of this case and do a “minimum-damage” approach to state regulation review; 3) the court’s error in calling the Maryland system a hybrid restraint and 4) the court’s failure to properly balance the state and federal interests in regulating alcohol with other federal interests.
This briefing will continue through the summer. It is unknown when this court will rule on this petition. Adding to the drama is the unsettled nature of the 4th Circuit with 1/3 of the judge positions open.
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