Total Wine (Connecticut Fine Wine & Spirits) brought a request to have their recent antitrust loss challenging Connecticut’s post and hold pricing regimes for alcoholic beverages reheard by the an en banc panel (all the judges) of the Second Circuit. You can read the request for the full hearing here.
The request argues that the Supreme Court’s precedent favors Total Wine and that the 2nd Circuit precedent relied upon by the three-judge panel in upholding the district court, Battipaglia v. NYSLA, needs to be overturned.
The request is important because, as we reported when we wrote about the case, a large justification for the ruling appeared to be stare decisis – with the panel deciding the case doing the legal equivalent of ¯_(ツ)_/¯ in saying they’re bound precedent. You can read our post on the case here (link). An en banc hearing would allow the entire 2nd Circuit to hear the case and, presumably, make a decision that could differentiate or overturn the precedent. Given that the case presents an apparent circuit split, an unfavorable decision for Total wine at an en banc hearing could be the first step to an alcohol case in the Supreme Court’s next term.