Very disappointing but not surprising decision from 4th Circuit today ruling against the state on the Maryland laws on price posting , price holdand quantity discount ban. This decision seemed to be a certainty when an entire new panel of 4th Circuit judges came out for oral argument. Personally, I think the court just wanted to be rid of this tenyear old case.
The “Law of the Case doctrine” was cited as the primary reason why they could not grant the state’s relief. So the structure of the case prevents them for making this case consistent with the Costco case in the 9th Circuit. Next up, the entire 4th panel and/or the U.S. Supreme Court.
Oral Argument Held in 4th Circuit on TFWS anti-trust case…AGAIN!
The never-ending Sherman anti-trust challenges to Maryland’s liquor regulations on price posting, price hold and bans on volume discounts had developments today. The latest (and fourth) trip to the 4th Circuit is obstensibly related to the most recent district court opinion (memorandum opinion). In my humble opinion, the oral argument in December 2008 seemed to suggest the 4th Circuit was grappling with how to reconcile some older, and in my view, incorrect rulings within this case, with the recent 9th Circuit Costco case and also remove themselves from the unwieldy posture of this case. However, in February, the 4th Circuit issued an order calling for new oral arguments. No new guidance or limitation was provided.
What did that mean? Well perhaps the answer was provided today when the lawyers for the two parties walked into the court to see an entirely new panel of judges on the 4th Circuit hearing this case. The ten years of investment of the plaintiff, defendant and taxpayers in getting the other court panel up to speed on the huge record and details about the intersection of laws related to anti-trust, alcohol and public health had to start anew with a new panel. I do not know why the panels were switched.
And from the questions today, this new panel does not seem to favor the state’s position and seem to have taken the more narrow view of “why the heck should we overturn the district judge?” as opposed to a more general debate about whether the laws were hybrid or unilateral restraints. As a result, the state was on defense and TFWS on offense for this hearing. Instead of picking up where they left on in December, the state was in a position of showing that Judge Quarles was clearly erroneous in his ruling on tax differentials between Maryland and Delaware while at the same time responding to arguments from the panel and TFWS attorney asking why the state didn’t just raise taxes if it is interested in higher prices to raise the price of alcohol. It was repeatedly noted by the lawyer for TFWS that Maryland has the lowest tax on liquor and if it was really interested in temperance and orderly markets it would raise the liquor tax. He repeatedly pointed out that the state and wholesalers fought any tax increase. Judge Duncan also asked a question on this theme. Essentially, TFWS is saying if you argue against a tax hike you can not seriously justify a volume discount ban (and by implication credit prohibition, minimum mark up laws, etc.) or other state laws that may impact temperance and orderly markets.
Obviously, this hearing today could pose a serious setback in the state’s ability to regulate alcohol. It looks like Judge Pechman’s thinking that raising taxes is the only way a state can influence alcohol policy and pricing may have another life if my observations today are correct. An adverse ruling in the 4th Circuit may trigger a full en banc request to get the 4th Circuit to clean out this mess, lay all issues out before it, and end the procedural games that have hampered the full appeal of this case. However, this is rank speculation on my part.
Most importantly, the 4th Circuit and the 9th Circuit could be split on this issue and we may be looking at a U.S. Supreme Court showdown as early as late 2009.
A transcript of the most recent 4th Circuit oral argument will be posted once obtained.
NBWA along with WSWA submitted an amicus brief in support of the state of Maryland. The state’s brief was submitted before the 9th Circuit ruled for the state of Washington and against Costco on most counts.