Similarly, in TFWS, Inc. v. Schaefer, the Fourth Circuit determined that analogous statutory provisions in Maryland are per se violations of the Sherman Act. 242 F.3d 198, 209-10 (4th Cir. 2001).This circuit split – with the Second Circuit on one side, and the Fourth and Ninth Circuits on the other – could prompt the Supreme Court to weigh in and resolve the issue in the near future.
Both the Fourth and Ninth Circuits have heard cases involving state alcohol post-and-hold laws, and both held that the laws were preempted by the Sherman Act. See Costco Wholesale Corp. v. Maleng (9th Cir. 2008); TFWS, Inc. v. Schaefer (4th Cir. 2001). The Second Circuit’s holding may have created a circuit split, which may later require resolution from the Supreme Court.