09-1883 Flying J., Inc., v. Van Hollen

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Antitrust
Minimum-markup laws

Wisconsin’s minimum-markup law does not violate the Sherman Act.

“It may well be that gasoline retailers are getting together with each other and agreeing on how to estimate their costs or what final price to charge, or that retailers and wholesalers are colluding to manipulate the average posted terminal price. ‘However, we have been given no indication that such corruption has tainted’ the gasoline pricing scheme in Wisconsin, and based on our reading of the challenged provisions, we think the Act ‘can hardly be viewed as a cloak for any conspiracy’ among refiners, wholesalers, or retailers. See Fisher, 475 U.S. at 269. Our disposition of this facial challenge does not preclude a future plaintiff, properly armed with evidence of actual collusion among Wisconsin gasoline dealers, from bringing an as-applied challenge to the Act or an enforcement action against those dealers under antitrust laws at a later time.

Reversed and Remanded.

09-1883 Flying J., Inc., v. Van Hollen

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Kanne, J.

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