Mountain Crest SRL, LLC v. Anheuser-Busch InBev SA/NV ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2327
MOUNTAIN CREST SRL, LLC,
Plaintiff-Appellant,
v.
ANHEUSER-BUSCH INBEV
SA/NV, individually and as
successor to InBev SA/NV and
Interbrew S.A., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:17-cv-00595-jdp — James D. Peterson, Chief Judge.
____________________
ARGUED NOVEMBER 2, 2018 — DECIDED SEPTEMBER 5, 2019
____________________
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Mountain Crest SRL, LLC (“Moun-
tain Crest”), brought this action, alleging that An-
heuser Busch InBev SA/NV (“Anheuser-Busch”) and Molson
Coors Brewing Company (“Molson Coors”) had conspired
to damage Mountain Crest’s beer exports to Ontario, Cana-
2 No. 18-2327
da, in violation of the Sherman Antitrust Act, 15 U.S.C. §§ 1–
2. Mountain Crest also alleged that Anheuser-Busch and
Molson Coors were enriched unjustly in violation of Wis-
consin law.
Much, although not all, of this dispute centers around
two agreements: an agreement in 2000 between two Canadi-
an entities, Brewers Retail, Inc. (“BRI”), and the Liquor Con-
trol Board of Ontario (“LCBO”); and an agreement in 2015
between Anheuser-Busch, Molson Coors, BRI, the LCBO and
the government of Ontario. Mountain Crest alleged that An-
heuser-Busch and Molson Coors had conspired to restrain
trade in the Ontario beer market and had engaged in mo-
nopolistic behavior through the two agreements. Among
other things, Anheuser-Busch and Molson Coors carried on
a group boycott to force the LCBO to enter the agreement in
2000 to ensure that BRI, an entity Anheuser-Busch and Mol-
son Coors control, was the only retailer in Ontario selling
beer in packages larger than six containers. Mountain Crest
further claimed the conspiracy extended into 2014 and 2015
when Anheuser-Busch and Molson Coors used a variety of
tactics to continue the retail arrangement between BRI and
the LCBO, including a threat to bring expropriation litiga-
tion under the North American Free Trade Agreement
(“NAFTA”). Mountain Crest contends that these agree-
ments, as well as BRI’s policy of promoting sales of An-
heuser-Busch’s and Molson Coors’ products in its stores to
the detriment of American competition, inhibited its ability
to compete in the Ontario beer market.1
1Mountain Crest submitted that the alleged anticompetitive conspiracy
prevents it from competing in the Ontario market because its profits are
(continued … )
No. 18-2327 3
Anheuser-Busch and Molson Coors moved to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(6) on
multiple grounds. The district court ruled that the act of
state doctrine required dismissal of the federal claims and
granted the motion; it did not address Anheuser-Busch and
Molson Coors’ other grounds for dismissal of the federal
claims.2 The district court then relinquished supplemental
jurisdiction over the state-law unjust enrichment claim and
dismissed the case without prejudice to Mountain Crest’s
bringing that claim in state court. Mountain Crest timely ap-
pealed.3 For the reasons set forth in this opinion, we affirm
in part and vacate in part the judgment of the district court
and remand the case for proceedings consistent with this
opinion.
I.
BACKGROUND
A.
Mountain Crest is an independently owned brewery
based in Monroe, Wisconsin. In 2009, Mountain Crest began
( … continued)
driven by economies of scale, achieved by distributing large packages of
beer.
2 The district court’s jurisdiction is predicated on 28 U.S.C. §§ 1331, 1337,
and 1367. We note that, although Mountain Crest does not specifically
invoke 28 U.S.C. § 1332, the facts alleged in the Second Amended Com-
plaint appear to establish that the district court also had diversity juris-
diction over Mountain Crest’s state-law claim.
3 We have jurisdiction pursuant to 28 U.S.C. § 1291.
4 No. 18-2327
exporting its beer to Ontario, Canada, seeking to compete in
the low-value segment of the beer market there.
4
The Second Amended Complaint alleges that An-
heuser-Busch is a corporation organized under the laws of
Belgium and headquartered there.5 Labatt, a Canadian
brewery, is currently a subsidiary of Anheuser-Busch, and
through Labatt, Anheuser-Busch has about a forty-three per-
cent market share in the Canadian beer market. Mountain
Crest claims that senior executives based out of St. Louis,
Missouri, manage Labatt through its “North America” zone
and that they and their predecessors oversaw and were in-
volved intimately in the alleged antitrust conspiracy.
Molson Coors is a Delaware corporation with principal
places of business in Denver, Colorado, and Montreal, Que-
bec. Molson Coors is the product of a 2005 merger between
Molson, Inc. and the Adolph Coors Company. According to
Mountain Crest, Molson Coors’ Canadian subsidiary, Mol-
son, controls roughly thirty-four percent of the Canadian
beer market. Mountain Crest alleges that Molson Coors’ sen-
ior executives participated in the alleged conspiracy with
Anheuser-Busch and its predecessors and acted to ensure
the conspiracy’s continued operation.
4
This suit comes to us on a motion to dismiss. Therefore, the events de-
scribed are as outlined in Mountain Crest’s Second Amended Complaint.
5 Anheuser-Busch was formed when Belgian-based InBev SA/NV ac-
quired the St. Louis-based Anheuser-Busch Company in 2008. InBev was
the product of a 2004 stock-for-stock merger between Belgian-based In-
terbrew S.A. and Brazilian-based AmBev. One of Interbrew’s subsidiar-
ies was Labatt Breweries of Canada, which Interbrew acquired in 1995.
No. 18-2327 5
Under a Canadian law, the provinces regulate and con-
6
trol the sale of alcohol within their boundaries. Under this
scheme, the LCBO, a Crown agency wholly owned by the
government of Ontario, has the authority to control the im-
portation of beer, wine, and spirits into Ontario, and to de-
termine the “nature, form and capacity of all packages to be
used for containing liquor to be kept or sold.” Liquor Con-
7
trol Act, R.S.O. 1990, c. L.18 § 3(j) (Can.). It is further author-
ized, by statute, to operate retail alcohol stores across the
province. Id. § 3(d).
At the time relevant to this suit, Ontario’s Minister of
Consumer and Commercial Relations had oversight of the
LCBO. As such, “[t]he LCBO was expected to implement
Governmental policy with regard to the distribution and sale
of alcohol within the parameters set out by the Liquor Control
Act and related legislation.” Hughes v. Liquor Control Bd. of
Ontario, 2018 CarswellOnt 3969, para. 84 (Can. Ont. S.C.J.)
(WL), aff’d 145 O.R.3d 401 (Can. Ont. C.A.). Thus, “[t]he gov-
ernment exercised considerable control over the LCBO” and
“[c]omplex, high-level decisions were made from
time-to-time by the senior Government officials or in some
6
See, e.g., The Importation of Intoxicating Liquors Act, R.S.C. 1985, c. I-3,
§ 3 (Can.) (federal statute that, with limited exceptions, bans any inter-
provincial or international trade in alcoholic beverages other than as car-
ried out by provincial liquor boards); R. v. Canadian Breweries Ltd., [1960]
O.R. 601, para. 39 (Ont.) (“It requires no exhaustive analysis of the consti-
tutional authorities to state that each Province has jurisdiction to regulate
and control the sale of liquor within its boundaries and to fix the prices
at which, and the conditions under which liquor may be sold.”).
7
See also R.S.C. 1985, c. I-3 § 3.
6 No. 18-2327
cases, through the enactment of legislation by the Legislative
Assembly that directed the activities of the LCBO.” Id.
BRI is a cooperative of Ontario brewers, authorized by
the LCBO to serve as a beer distributor, wholesaler, and re-
tailer in Ontario. Under the Liquor Control Act, the LCBO
controls the sale and delivery of beer at BRI stores and estab-
lishes specific terms and conditions related to the operation
of such stores. See R.S.O. 1990, c. L.18 §§ 3(1)(d), 3(1)(e.1),
3(1)(e); Sale of Liquor in Government Stores, O. Reg. 232/16
§ 6 (Can.). Mountain Crest alleges that Labatt and Molson
gained control of BRI over many years by acquiring original
members of the cooperative; that each now owns forty-nine
percent of BRI8; and that some of their employees serve as
BRI directors. BRI sells beer in stores known as The Beer
Store and allegedly enjoys a seventy-five percent market
share of beer sales in the province.9
In sum, there are two places to buy beer in Ontario:
LCBO stores and The Beer Store. The LCBO operates three
8 Sleeman Breweries, Ltd. (“Sleeman”), a subsidiary of the Japanese
brewery Sapporo Ltd., also had an ownership stake in BRI for much of
the relevant time. Sleeman, however, had minimal influence over BRI’s
operations and was not included in any BRI board proceedings or ac-
tions involving the negotiation of the agreement in 2000 between BRI
and the LCBO.
9 The Beer Store generally does not display its inventory on the open
floor. Rather, customers place orders at the cashier, and the order is re-
trieved from the back-of-house. The inventory is listed on a board behind
the cashier, and brewers that are not part of BRI must pay an up-front
listing fee to have their product identified on the board. Listings can be
removed if the beer does not meet sales quotas established by BRI.
No. 18-2327 7
different types of stores. “Ordinary” stores are in larger
communities where BRI operates The Beer Store. Consistent
with historical practice, LCBO “ordinary” stores sell wine
and spirits as well as beer in packages of six or fewer, while
BRI is responsible for selling large packages of beer. LCBO
“combination” stores, by contrast, sell beer in packages larg-
er than six, as well as wine, spirits, and small packages of
beer, because they are in smaller communities that do not
have The Beer Store. Under this arrangement, as a communi-
ty grows, BRI can request to open a store in the locality; if
the LCBO grants that request, the LCBO combination store
reverts to an ordinary store. LCBO “agency” stores serve
Ontario’s smallest communities; these stores are private
businesses such as grocery stores that are permitted to sell
alcohol.
Beyond selling different package sizes of beer, BRI and
the LCBO traditionally sold different types of beer. LCBO
ordinary stores sold imported beer and some beer brewed in
Ontario; The Beer Store only sold beer brewed in Ontario.
Additionally, LCBO ordinary stores did not distribute any
beer brands sold by BRI to restaurants and bars holding al-
cohol licenses. Since The Beer Store allegedly had a seven-
ty-five percent market share and only sold domestic prod-
ucts, most of the beer sold in Ontario was brewed in Ontario.
In the late 1980s and early 1990s, the United States, invoking
the General Agreement on Tariffs and Trade (“GATT”),
complained that these practices were discriminatory and, as
a result of the settlement in 1993, foreign brewers were per-
mitted to sell their beer in The Beer Store. Foreign brewers
8 No. 18-2327
could also access BRI’s large beer distribution network.10 The
settlement did not affect the LCBO’s practice of selling beer
in packages of six or fewer in its ordinary stores.
As the GATT challenge was settled, disputes began to
emerge between the LCBO and BRI. Pertinent to the present
case, the LCBO expressed a desire to begin selling larger
packages of beer in its ordinary stores. BRI and Brewers of
Ontario, an unincorporated trade association consisting sole-
ly of Labatt and Molson, opposed this plan because such
sales would “cannibalize BRI’s volume.”11 This dispute and
its resolution is central to many of Mountain Crest’s claims;
the events described here are as outlined in Mountain
Crest’s Second Amended Complaint.
Responding to the LCBO’s wish to sell larger packages of
beer, the Executive Director of Brewers of Ontario noted in a
1992 letter to the President of BRI that the GATT settlement
required the LCBO to provide the same opportunities to for-
eign brewers that it provided to domestic brewers. There-
fore, Labatt and Molson believed that they would not be able
to sell large packages of their own beer in LCBO ordinary
stores without opening those stores to large packages of for-
eign beer. Accordingly, they refused to sell packages of
twelve and twenty-four containers of beer at LCBO ordinary
10Historically, the LCBO has taken first receipt of all foreign beer and
then sells it to BRI for sale and distribution. Mountain Crest submits that,
though the LCBO takes first receipt of all foreign beer for BRI, it is BRI
that places the orders for imported beer.
11 R.49-2 at 1.
No. 18-2327 9
stores. Mountain Crest submits that this “group boycott”12
put LCBO “at the mercy of Labatt and Molson if it wished to
expand its beer business” because the two brewers had a
dominant market share in Canada and exclusive distribution
agreements with the three major American beer companies.13
At times, the LCBO’s internal documents reflected its view
that BRI was monopolistic and its practices harmed Canadi-
an consumers.
According to the Second Amended Complaint, the LCBO
had to negotiate with Labatt and Molson if it wanted to sell
larger packages of beer. These negotiations, which involved
Ontario’s Minister of Consumer and Commercial Relations,
occurred over the next several years. In addition to what size
packages of beer could be sold, the parties also discussed
cost-of-service fees, minimum beer prices, additional loca-
tions of The Beer Store and LCBO stores, and BRI’s assump-
tion of the responsibility for directly importing the beer it
sells rather than using the LCBO as a go-between.
On December 9, 1998, officers of Molson and Interbrew
(which now owned Labatt) presented a template working
12 See R.49 ¶ 108. In their briefing before the district court, An-
heuser-Busch and Molson Coors note that any decision to not provide
large packages of beer to LCBO ordinary stores complied with the status
quo—the traditional practice of LCBO ordinary stores to only sell pack-
ages of six or fewer. Mountain Crest submits, however, that the boycott
extended beyond not providing larger package sizes of domestic beers
but also included “unwillingness to supply additional six-packs” and
“alternative packaging formats (e.g. cans).” R.49-16 at 1; see also R.49
¶ 108.
13 R.49 ¶ 77.
10 No. 18-2327
agreement addressing the points of contention. This tem-
plate included a provision prohibiting the LCBO from pur-
chasing twelve and twenty-four packages of beer from any
American brewers, including those brewers who did not sell
through BRI. In a letter to the Deputy Minister of Consumer
and Commercial Relations, the LCBO opposed this provision
and others. Pertinently, it complained that the template
working agreement did not address BRI’s practice of placing
frequent small orders for imported beer. Mountain Crest
suggests that this practice—in its words, “out-of-stocking”—
inhibited its ability to sell beer competitively in Ontario.14
Relatedly, the LCBO requested that BRI undertake importa-
tion and distribution operations for itself rather than relying
on the LCBO to import and distribute beer to BRI in the first
instance. Mountain Crest submits that making this change
would have remedied the out-of-stocking issues it allegedly
faced later on.
Following the initial template proposal, the LCBO and
the breweries developed a document that would become a
15
final agreement in 2000. This “Working Protocol” included
provisions prohibiting the LCBO from selling twelve and
twenty-four packages of beer and requiring BRI to take first
receipt of the imported beer. Mountain Crest alleges that the
Ontario government pressured the LCBO to “concede to
demands from Molson and Labatt, although the Minister,
sensitive to international trade legal exposure, declined to do
14 See id. ¶¶ 101–02.
15
See id. ¶ 102.
No. 18-2327 11
16
so via any form of law or regulation.” According to Moun-
tain Crest, the breweries promised to make new investments
in manufacturing if the LCBO acceded to their demands. At
one point, the LCBO officials expressed that the Working
Protocol “gives the Brewers [Molson, Inc. and Interbrew SA]
almost a total monopoly over the beer market and effectively
supersedes the Liquor Control Act and the powers it gives
17
the Board in relation to beer.”
As negotiations continued, the LCBO apparently still
sought to gain some flexibility in package sizes. During an
LCBO Board meeting on August 9, 1999, the LCBO dis-
cussed the possibility that Molson might be interested in
working with them to improve the proposed agreements.
Molson, however, did not do so. The brewers allegedly con-
tinued what Mountain Crest terms as their “multi-year
group boycott”: Labatt and Molson refused to supply addi-
tional six packs of beer beyond what the LCBO already had,
to provide packages of their beer in cases larger than a six
pack, or to provide any beer in cans.18
A final round of negotiations began on March 30, 2000.
Minutes from the meeting reflect that the brewers viewed
allowing larger package sizes in LCBO stores to be
“Non-Negotiable.”19 The minutes also indicate that the par-
16
Id. ¶ 103.
17
Id. ¶ 105 (alteration in original).
18 Id. ¶ 108.
19
Id. ¶ 112.
12 No. 18-2327
ties decided to not include the provision from the Working
Protocol that would have required BRI to assume im-
port-distribution responsibilities. This provision, according
to Mountain Crest, would have fixed the out-of-stocking is-
sue it allegedly later faced when trying to sell its beer at The
Beer Store. Mountain Crest submits that, on May 18, 2000,
the LCBO Board determined that, “as a practical matter,” it
would have to concede to the brewers’ demands because
“the LCBO could not compel [BRI] to supply it with new
20
brands of beer for sale.” At the end of that month, the Min-
ister for Commerce and Commercial Relations directed the
LCBO to sign the agreement proposed by BRI. BRI’s Chair-
man, also an officer of Molson, signed the contract on behalf
of BRI. According to Mountain Crest, the parties chose to
implement the regulatory scheme through a contract be-
tween the LCBO and BRI because a contract would not be
public.21 Further, Mountain Crest asserts that Labatt and
Molson’s lawyers believed that “the Cabinet or Ministerial
directive approach” might not “prevent the LCBO from us-
ing their regulatory power under the Liquor Control Act to
override any such a directive.”22
On June 1, 2000, BRI and the LCBO entered into a final
agreement (the “2000 Agreement”) to resolve the outstand-
20
Id. ¶ 119.
21Indeed, though Sleeman has a small ownership stake in BRI, it appar-
ently was unaware of this agreement at the time it was signed. Similarly,
Mountain Crest alleges that other brewers were unaware of the ar-
rangement.
22 Id. ¶ 111.
No. 18-2327 13
ing issues of dispute between the two parties. Relevant to
this suit, the 2000 Agreement outlined “Beer Selling Roles”
and provided that, “[c]onsistent with historical practice, the
LCBO will not sell beer [] in non-combination stores in pack-
ages containing more than 6 containers and will not promote
23
beer at price points greater than 6 containers” (the “six-
pack rule”). According to the Second Amended Complaint,
“[i]n one sentence, Molson Inc. and Interbrew SA managed
to implement not only their per se illegal horizontal market
allocation conspiracy regarding package sizes, but also their
per se illegal horizontal price fixing conspiracy by contractu-
24
ally prohibiting the LCBO from offering ‘Pack Up Pricing.’”
In Mountain Crest’s view, a prohibition on promoting beer
at price points greater than six containers “meant that U.S.
brewers who only sold to the LCBO were unable to encour-
age sales to the LCBO by offering promotional quantity-
based pricing to match discounts Defendants made available
25
at [The Beer Store].” A Canadian court has explained that
the 2000 Agreement merely continued current practices of
the LCBO and BRI:
The 2000 Beer Framework Agreement did not
change much in the way that the LCBO and
Brewers Retail each operated. … Both before
and after the Agreement was adopted, gov-
ernment policy precluded the LCBO from sell-
23
R.49-19 at 4.
24
R.49 ¶ 122.
25
Id.
14 No. 18-2327
ing 12-packs and 24-packs at Ordinary
Stores and precluded the LCBO from selling to
licencees the beer that was exclusively distrib-
uted by Brewers Retail. The LCBO would have
needed the Provincial Government’s approval
to change this status quo, and the Government
refused to grant such approval.
Hughes, 2018 CarswellOnt 3969, para. 157.
Mountain Crest alleges that the LCBO made efforts to re-
negotiate the 2000 Agreement over the next several years so
that it could sell larger packages of beer. For example, the
LCBO offered to allow pack-up pricing for Labatt and Mol-
son products only, which presumably would benefit Labatt
and Molson at the expense of their competitors. The BRI,
however, rejected these entreaties and brewers allegedly
took steps to ensure the status quo continued. During this
time, both Anheuser-Busch and Molson Coors were formed
through a variety of acquisitions and mergers that included
Labatt and Molson respectively. Mountain Crest suggests
that the profits Labatt and Molson enjoyed from their alleg-
edly anticompetitive and illegal scheme made such corpo-
rate combinations possible.
On October 20, 2009, Mountain Crest entered the Ontario
market and paid BRI to list its Boxer Lager brand in The Beer
Store. In total, Mountain Crest paid $701,797.08 CAD in list-
ing fees from the date of that initial listing until the end of
2016.26 Mountain Crest, however, allegedly had difficulties
26A listing fee refers to the price that brewer pays BRI to carry the brew-
er’s beer.
No. 18-2327 15
selling its beer in The Beer Store. In a February 22, 2010 press
release, Mountain Crest reported that its launch of Boxer La-
ger was “severely hindered with rolling Out of Stocks.”27
According to Mountain Crest, BRI placed small orders for
Boxer Lager even though there was great demand for the
product due to an advertising campaign. And, since The
Beer Store was the only place that Mountain Crest could sell
its large packages of Boxer Lager, Mountain Crest claims
that it lost export sales because it could not go to another re-
tailer and sell its beer in large packages there. Mountain
Crest alleges that the beneficiaries of these lost sales were
Anheuser-Busch’s and Molson Coors’ value-segment beer
brands that were prominently displayed in The Beer Store.
BRI responded to Mountain Crest’s press release, claiming
that “[w]e’re not seeing that inventory arrive in stores. We’re
at the mercy of what the LCBO ships to us.”28 Mountain
Crest contends that this was misleading because BRI resisted
the LCBO’s attempt to move import distribution to BRI and
“Molson and Labatt had used their market power to com-
pletely dominate the LCBO.”29
Mountain Crest alleges other facts detailing anticompeti-
tive marketing and distribution practices at The Beer Store.
Allegedly, “the most significant consumer marketing vehicle
27Id. ¶ 174; see also id. ¶ 173 (“Plaintiff’s winter 2009-2010 advertising
campaign and launch of Boxer was significantly undermined by
out-of-stock issues for Boxer Lager that on average affected a third of the
440 [The Beer Store’s] that were supposed to be carrying Boxer Lager.”).
28 Id. ¶ 176.
29 Id.
16 No. 18-2327
in” The Beer Store is the “Big Ten” wall, which prominently
lists “the top 10 selling beer brands” for customers to choose
when placing their orders.30 All but one of the brands listed
on the “Big Ten” wall allegedly belonged to either An-
heuser-Busch or Molson Coors, which “reinforce[d] their ex-
isting volumes and market share while limiting the ability of
new entrants to compete.”31 Additionally, The Beer Store op-
erated a “Brewer Poster Program”32 that brewers could join
to place large advertising posters inside The Beer Store, with
relative positions selected by The Beer Store. Mountain Crest
alleges that it paid to participate in this program, but The
Beer Store discontinued the program summarily, without
refund, to utilize the space for The Beer Store brand messag-
ing. Last, Mountain Crest claims that The Beer Store’s listing
fees, which are charged to only brewers who are not mem-
bers of BRI, are discriminatory.33 The effect of these fees was
apparently compounded by the alleged out-of-stocking
scheme because “Defendants’ employees, who take Director
roles at [BRI], decide amongst themselves” quotas that the
brewer’s brands must meet for The Beer Store to retain in-
ventory of that product “even if the reason it did not meet
30Id. ¶ 59. For a description of the typical layout of The Beer Store and
the customer purchasing process, see supra note 9.
31 Id. ¶ 247.
32 Id. ¶ 169.
33Until 2015, BRI consisted only of Anheuser-Busch, Molson Coors, and
Sleeman. Thus, all other brewers paid listing fees.
No. 18-2327 17
the quota is because [BRI] did not use reasonable efforts to
ensure sufficient inventory despite the paid-for listing.”34
In 2014, the Ontario Premier asked the Premier’s Adviso-
ry Council on Government Assets to examine further ways
to monetize government assets such as the LCBO. The
Council determined that the LCBO should sell larger pack-
ages of beer and that BRI needed to “treat both owners and
non-owners fairly, including with respect to the display of
their products.”35 Around the same time, the Toronto Star
published an article disclosing the previously non-public
2000 Agreement, sparking constituent outrage and leading
to a since-dismissed Canadian antitrust class action suit.36
BRI responded to this public criticism by offering ownership
stakes to all Ontario brewers. Though small, these owner-
ship stakes allowed Ontario brewers special privileges such
as being exempt from paying listing fees. Mountain Crest
alleges this plan was “in effect an import-substitution
scheme … giving Ontario-based brewers better access to
[The Beer Store] while further damaging competition [from]
Defendants’ U.S. based competitors, and with the intent of
forestalling government mandated reforms [aimed] at end-
ing Defendants’ ongoing restraints in trade.”37
34 Id. ¶ 62.
35 Id. ¶ 188 (emphasis omitted).
36See Hughes, 2018 CarswellOnt 3969, para. 247 (determining that the
2000 Agreement did not violate Canada’s Competition Act because the
conduct alleged was regulated conduct).
37 R.49 ¶ 195.
18 No. 18-2327
At the same time, Anheuser-Busch, Molson Coors, BRI,
the LCBO, and the government of Ontario entered into nego-
tiations to replace the 2000 Agreement. During these negoti-
ations, Anheuser-Busch and Molson Coors apparently
sought to maintain BRI’s exclusive position as the only seller
of large packages of beer. To this end, they allegedly threat-
ened the Ontario government with NAFTA expropriation
litigation if the government “took steps to undermine their
cartel or system of restraints on U.S. exports to Ontario.”38
According to Mountain Crest, these threats “were planned
and authorized by Defendants[’] respective U.S. offices in
St. Louis and Denver” because “[n]o subsidiary entity of ei-
ther Defendants located in Canada is capable of standing
under NAFTA to bring an expropriation challenge, which is
designed to offer a remedy solely for foreign entities, not
domestic entities.”39
The final 2015 Agreement continued the six-pack rule. It
also included a provision wherein Anheuser-Busch and
Molson Coors “waive any right to bring any claim or to seek
or obtain any compensation or other remedy of any kind
under international law or under any international trade
agreements to which Canada is a Party, including
[NAFTA].”40 The 2015 Agreement has a ten-year term and
38Id. ¶ 200. NAFTA permits investors to submit claims that a NAFTA
party has breached investment-related obligations, including obligations
to afford fair treatment to investments made by foreign parties. See
North American Free Trade Agreement, ch. 11 § B, Dec. 8–17, 1992, 107
Stat. 2061, 32 I.L.M. 605.
39 R.49 ¶ 200.
40 Id. ¶ 207.
No. 18-2327 19
provides for early termination upon either written agree-
ment by both BRI and the government of Ontario, the bank-
ruptcy of BRI, or material breach by either party. Further, it
contains a provision permitting severance of terms “restrict-
41
ed, prohibited or unenforceable” in any jurisdiction. The
government of Ontario, BRI, Labatt, Molson, and Sleeman
Breweries, Ltd. (“Sleeman”)42 signed the 2015 Agreement.
Along with the 2015 Agreement, the government of Ontario
amended the Liquor Control Act. This amendment states
that the LCBO “is deemed to have been directed, and Brew-
ers Retail, Inc.[,] is deemed to have been authorized, to enter
into the June 2000 framework in relation to the Crown’s or a
Crown agent’s regulation and control of the sale of beer in
Ontario.” R.S.O 1990, c. L.18 § 10(3).
After the May 2018 elections, the Ontario PC party
formed a new parliamentary majority in the Ontario gov-
ernment. As part of its campaign platform, it had said that it
would “withdraw from the secret, backroom deal negotiated
between the Liberals and foreign multinational beer compa-
nies.”43 After oral argument in this case, the new Ontario
government proposed and enacted an amendment to the
44
Liquor Control Act terminating the 2015 Agreement. The
41
Id.
42 Sleeman was the other owner-member of BRI. See supra note 8.
43 Appellant’s Br. 14.
44
See Bill 115, Bringing Choice and Fairness to the People Act (Beverage Alco-
hol Retail Sales), 1st Sess., 42nd Leg., Ontario, 2019 (royal assent received
June 6, 2019).
20 No. 18-2327
effective date of the termination is to be announced by the
province’s Lieutenant Governor; this date has not yet been
announced. In a May 27, 2019 letter, counsel for Labatt and
Molson informed the Ontario Deputy Attorney General that
the companies were reserving the right to commence litiga-
tion challenging the bill. No such litigation has yet com-
menced.
B.
On August 17, 2017, Mountain Crest brought this action
in the Western District of Wisconsin. It alleged violations of
the Sherman Antitrust Act as well as a claim for unjust en-
richment under Wisconsin state law. Specifically, under § 1
of the Sherman Antitrust Act, 15 U.S.C. § 1, Mountain Crest
alleges that Anheuser-Busch and Molson Coors engaged in a
horizontal conspiracy to restrain competitors’ export of beer
to Ontario by “leverag[ing] their market power to insist …
that LCBO not purchase 12s and 24s of beer from any brew-
45
eries” ; “agree[ing] to impose on the LCBO a contractual ob-
ligation in the June 1st, 2000 agreement that the LCBO
would not allow any brewery supplier to offer Pack-Up pric-
46
ing” ; “conspir[ing] to rig [The Beer Store] in-store market-
ing schemes … to reinforce their existing volumes and mar-
ket share while limiting the ability of new entrants to com-
47
pete” ; and “conspir[ing] to hold on to their restraints
45
R.49 ¶ 243.
46
Id. ¶ 244.
47
Id. ¶ 247.
No. 18-2327 21
against their U.S. domestic competitors’ ability to export to
Ontario by launching their January 2015 Plan to extend cer-
tain cartel benefits to other Ontario brewers and threatening
the government of Ontario with NAFTA litigation.”48 To
support its claim under § 2 of the Sherman Antitrust Act, 15
U.S.C. § 2, Mountain Crest contends that Anheuser-Busch
and Molson Coors “conspired with each other to monopo-
lize the sale of beer in Ontario, including the use of a group
boycott, to restrain the LCBO’s ability to buy beer from other
49
brewers.” They also “took overt and predatory acts in fur-
therance of their conspiracy by developing a series of ever-
more anticompetitive restraints on the LCBO’s ability to of-
fer American brewers a competitive route into the Ontario
beer market.”50 These overt and predatory acts included “re-
buffing LCBO attempts to engage competitively” and “op-
erat[ing] [The Beer Store] in a manner that constitutes an un-
lawful combination by discriminating against competing
brewers” so that they cannot access “point-of-sale marketing
programs in [The Beer Store].”51
For these alleged violations of the Sherman Act, Moun-
tain Crest sought a declaration that Anheuser-Busch and
Molson Coors engaged in an “ongoing per se unlawful mar-
ket allocation and price fixing conspiracies to restrain export
48 Id. ¶ 243.
49
Id. ¶ 253.
50 Id.
51 Id.
22 No. 18-2327
beer trade to Ontario.”52 Further, it asked for a declaration
that Anheuser-Busch and Molson Coors sought to monopo-
lize illegally the sale of beer in Ontario by restraining the
ability of the LCBO to purchase beer from competing brew-
eries and by creating anticompetitive conditions in The Beer
Store. Mountain Crest also moved for injunctive relief order-
ing Anheuser-Busch and Molson Coors to terminate their
participation in the 2015 Agreement and to restrain any fur-
ther efforts aimed at preventing “any third party Canadian
entity involved in the purchase and resale of beer” from
purchasing competing beer.53 Additionally, Mountain Crest
sought an order requiring Anheuser-Busch and Molson
Coors to divest their ownership in BRI. Last, Mountain Crest
requested treble damages for its lost exports to Ontario.
Anheuser-Busch and Molson Coors moved to dismiss
under Federal Rule of Civil Procedure 12(b)(6) on multiple
grounds: (1) that the claims are barred by the act of state
doctrine; (2) that the claims are barred under
Noerr-Pennington; (3) that the Sherman Act does not reach
the conduct at issue; (4) comity; (5) forum non conveniens; (6)
that Mountain Crest did not state a plausible claim; and (7)
that Mountain Crest did not plead facts to pierce the corpo-
rate veil of their subsidiaries to reach them.
Relying on the act of state doctrine, the district court
granted Anheuser-Busch’s and Molson Coors’ motion. It
reasoned that “all of the conduct that allegedly violates the
Sherman Act involves a public act by the Ontario govern-
52 Id. ¶ 257.
53 Id.
No. 18-2327 23
ment and [that] a ruling in Mountain Crest’s favor would
require the court to determine that the Ontario government
violated the Sherman Act as well.”54 The district court identi-
fied four such public acts that were “the official policy of the
Ontario government”: (1) the 2000 Agreement between the
LCBO (as a government agency) and BRI formalizing the six-
pack rule; (2) the Ontario Minister of Consumer and Com-
mercial Relations’ direction to the LCBO to sign the 2000
Agreement; (3) the 2015 Liquor Control Act amendments
approving of the 2000 Agreement; and (4) the 2015 Agree-
ment between BRI and the government of Ontario reaffirm-
ing the six-pack rule.55 In its view, “there is no way to find
that [Anheuser-Busch and Molson Coors] violated the Sher-
man Act without also finding that the Ontario government
violated the Act by entering into the 2000 and 2015 agree-
ments”56; ruling for Mountain Crest would “declare the On-
tario government’s policy choices invalid and require the
government to dismantle its policy.”57 Moreover, allegations
of a “continued … conspirac[y]” were of no significance be-
54 R.60 at 13.
55Id. at 13–14. The district court noted that the Ontario Superior Court’s
decision in Hughes, 2018 CarswellOnt 3969, confirmed that these actions
are public acts of the Ontario government and that the conduct did not
violate Ontario law. R.60 at 16.
56 Id. at 14.
57Id. at 18. The district court found there was “no way that it could rem-
edy any alleged restraints on trade without enjoining the Ontario gov-
ernment” because “it is the practices at LCBO stores, not BRI stores, that
Mountain Crest is challenging” and “[t]hus, no injunction against de-
fendants could provide Mountain Crest any immediate relief.” Id. at 15.
24 No. 18-2327
cause, “[r]egardless of any conduct by [Anheuser-Busch and
Molson Coors], the source of the harm is still the agreement
with the government” and the government’s endorsement of
the agreement in 2015.58
The district court declined to determine whether there is
a commercial activity exception to the act of state doctrine
because, even if there were such an exception, it would not
apply. The district court noted that the LCBO is a regulatory
agency that did not carry on its business as a prof-
it-maximizing commercial enterprise, and that the 2015
amendment to the Liquor Control Act states the 2015
Agreement relates to the “regulation and control of the sale
of beer in Ontario.”59 The court also dismissed Mountain
Crest’s argument that the act of state doctrine should not
apply because it was possible for Anheuser-Busch and Mol-
son Coors to comply with both Canadian and U.S. law be-
fore entering the 2000 Agreement and 2015 Agreement. It
found that this argument was based on “international comi-
ty, not the act of state doctrine, which on its face does not
require a private defendant to show that it was compelled to
act in a certain way.”60
58 Id. at 22.
59 Id. at 20.
60Id. at 24 (citing Hartford Fire Ins. Co. v. California, 509 U.S. 764, 794–97
(1993) (determining that international comity did not require a court to
decline to adjudicate a Sherman Act claim involving foreign conduct
where foreign law permitted the anticompetitive conduct but did not
require it)).
No. 18-2327 25
The district court did not consider Anheuser-Busch’s and
Molson Coors’ other arguments. Because the federal claims
were dismissed under the act of state doctrine, the district
court also dismissed Mountain Crest’s state-law claim with-
out prejudice. Mountain Crest timely appealed.
II.
DISCUSSION
We now turn to the merits of the dispute before us.61 In
addition to the briefs and arguments of the parties, the De-
partment of Justice (“DOJ”) has submitted, at our invita-
tion,62 an amicus brief advising that the district court proper-
ly applied the act of state doctrine and correctly dismissed
Mountain Crest’s claims that the 2000 Agreement and 2015
Agreement containing the six-pack rule were per se viola-
tions of the Sherman Antitrust Act, 15 U.S.C. § 1. The DOJ
suggests, however, that Mountain Crest made allegations of
anticompetitive behavior that must be considered independ-
ent of the six-pack rule. In the DOJ’s view, these allegations
are not subject to the act of state doctrine and should not
have been dismissed at this stage of the litigation. In re-
61We review de novo a district court’s decision to dismiss a complaint
for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
See Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 334 (7th Cir.
2012).
62We invited the United States to submit an amicus brief addressing the
applicability of the act of state doctrine. The Department of Justice ac-
cepted our invitation and submitted a brief on behalf of the United
States. We thank the Department for having accepted our invitation. The
parties were given an opportunity to respond to the Department’s sub-
mission and have submitted briefs stating their positions.
26 No. 18-2327
sponse, Mountain Crest claims that the DOJ misinterprets
the act of state doctrine and that the doctrine is not applica-
ble. It agrees, however, that, in any event, it set forth a con-
spiracy that is not wholly dependent on the acts of the On-
tario government. It submits that these other acts, independ-
ent of the actions of the Ontario government, are sufficient to
support its claim that Anheuser-Busch and Molson Coors
violated Sections 1 and 2 of the Sherman Antitrust Act. An-
heuser-Busch and Molson Coors counter that, although the
DOJ correctly concludes that the act of state doctrine pre-
cludes consideration of Mountain Crest’s claims related to
the 2000 Agreement and 2015 Agreement, the DOJ suggests,
incorrectly, that we must vacate the remaining aspects of the
district court’s judgment and remand to consider an inde-
pendent conspiracy. We now evaluate these positions. We
first discuss the contours of the act of state doctrine and then
apply the doctrine to this case.
A.
Unlike the political question doctrine or claims of sover-
eign immunity, the act of state doctrine is not a jurisdictional
bar nor a theory of abstention; rather, it is a “substantive”
doctrine considered “on the merits” of the case. Republic of
Austria v. Altmann, 541 U.S. 677, 700 (2004).63 We have not
63 In Republic of Austria v. Altmann, 541 U.S. 677 (2004), the Supreme
Court, having resolved the question presented to it regarding jurisdic-
tion under the Foreign Sovereign Immunities Act, said that the act of
state doctrine “provides foreign states with a substantive defense on the
merits.” Id. at 700 (emphasis added). The act of state doctrine, however,
can be raised by the defendant as a defense or by the plaintiff as part of
its case. See Restatement (Fourth) of Foreign Relations Law § 441 n.3
(continued … )
No. 18-2327 27
had occasion to address the doctrine in much detail but have
described it as “a judicial rule that ‘generally forbids an
American court to question the act of a foreign sovereign
that is lawful under that sovereign’s laws.’” Nocula v. UGS
Corp., 520 F.3d 719, 727 (7th Cir. 2008) (quoting F. & H.R.
Farman-Farmaian Consulting Eng’rs Firm v. Harza Eng’g Co.,
882 F.2d 281, 283 (7th Cir. 1989)). There is a “presumption of
validity accorded to the official public acts of a foreign coun-
try.” Id. at 728.
The act of state doctrine first appeared in Underhill v.
Hernandez, 168 U.S. 250 (1897), where the Supreme Court re-
fused to determine whether a Venezuelan military com-
mander, whose revolutionary government later was recog-
nized by the United States, had detained illegally a United
States citizen. Id. at 254. The Court said that:
Every sovereign State is bound to respect
the independence of every other sovereign
State, and the courts of one country will not sit
in judgment on the acts of the government of
another done within its own territory. Redress
of grievances by reason of such acts must be
obtained through the means open to be availed
of by sovereign powers as between themselves.
( … continued)
(Am. Law Inst. 2018) (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398 (1964)).
28 No. 18-2327
Id. at 252. Although some have regarded Underhill to be a
sovereign immunity case,64 the Supreme Court has character-
ized the case as “[t]he classic American statement of the act
of state doctrine,” Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398, 416 (1964), because “holding the defendant’s deten-
tion of the plaintiff to be tortious would have required deny-
ing legal effect” to the acts of the foreign official, W.S. Kirk-
patrick & Co., Inc., v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400,
405 (1990). In early act of state cases following Underhill, the
Court employed the doctrine to refrain from adjudicating
property seizures by foreign governments.65 These early de-
cisions viewed the act of state doctrine “as an expression of
international law, resting upon ‘the highest considerations of
international comity and expediency.’” W.S. Kirkpatrick, 493
U.S. at 404 (quoting Oetjen v. Cent. Leather Co., 246 U.S. 297,
303–04 (1918)).
In Sabbatino, the Supreme Court recast the traditional
doctrinal foundation of the act of state doctrine, deciding
that it was not compelled by either “the inherent nature of
sovereign authority” or by international law. 376 U.S. at 421–
22. Rather, the Court determined that there were “‘constitu-
tional’ underpinnings” to the doctrine derived from our sys-
64See Indus. Inv. Dev. Co. v. Mitsui & Co., Ltd., 594 F.2d 48, 51 n.6 (5th
Cir. 1979); Restatement (Fourth) of Foreign Relations Law § 441 n.2
(Am. Law Inst. 2018); John Harrison, The American Act of State Doctrine,
47 Geo. J. Int’l L. 507, 526–33 (2016).
65 See, e.g., Oetjen v. Cent. Leather Co., 246 U.S. 297, 303–04 (1918) (declin-
ing to examine property seizures because doing so would determine that
the seizure within Mexico and by Mexico was legally ineffective); Ricaud
v. Am. Metal Co., 246 U.S. 304, 310 (1918) (same).
No. 18-2327 29
tem of separation of powers.66 Id. at 423. Noting “the compe-
tency of dissimilar institutions to make and implement par-
ticular kinds of decisions in the area of international rela-
tions,” the Court explained that the act of state doctrine “ex-
presses the strong sense of the Judicial Branch that its en-
gagement in the task of passing on the validity of foreign
acts of state may hinder rather than further this country’s
pursuit of goals both for itself and for the community of na-
tions as a whole in the international sphere.” Id. at 424. Put
another way, “juridical review of acts of state of a foreign
power could embarrass the conduct of foreign relations by
the political branches of the government,” and “frustrate the
conduct of the Nation’s foreign policy.” First Nat’l City Bank
v. Banco Nacional de Cuba, 406 U.S. 759, 765, 769 (1972).
Because the act of state doctrine’s “continuing vitality
depends on its capacity to reflect the proper distribution of
functions between the judicial and political branches of the
Government on matters bearing upon foreign affairs,” Sab-
batino identified various factors for courts to consider before
applying the doctrine. 376 U.S. at 427–28. These include “the
degree of codification or consensus concerning a particular
area of international law”; “the implications of an is-
sue … for our foreign relations”; and whether “the govern-
ment which perpetrated the challenged act of state” is still in
66These constitutional underpinnings are structural considerations sug-
gesting the usefulness of the act of state doctrine in certain situations.
The Court was clear that “[t]he text of the Constitution does not require
the act of state doctrine; it does not irrevocably remove from the judici-
ary the capacity to review the validity of foreign acts of the states.” Sab-
batino, 376 U.S. at 423.
30 No. 18-2327
existence.67 Id. at 428. In Sabbatino, the Supreme Court decid-
ed that it would “not examine the validity of a taking of
property within its own territory by a foreign sovereign
government”—there, an expropriation decree by the Cuban
government—“in the absence of a treaty or other unambigu-
ous agreement regarding controlling legal principles, even if
the complaint alleges the taking violates customary interna-
tional law.”68 Id.
67 In full, the Court stated:
It should be apparent that the greater the degree of codification
or consensus concerning a particular area of international law,
the more appropriate it is for the judiciary to render decisions
regarding it, since the courts can then focus on the application of
an agreed principle to circumstances of fact rather than on the
sensitive task of establishing a principle not inconsistent with
the national interest or with international justice. It is also evi-
dent that some aspects of international law touch much more
sharply on national nerves than do others; the less important the
implications of an issue are for our foreign relations, the weaker
the justification for exclusivity in the political branches. The bal-
ance of relevant consideration may also be shifted if the gov-
ernment which perpetrated the challenged act of the state is no
longer in existence … for the political interest of this country
may, as a result, be measurably altered.
Sabbatino, 376 U.S. at 428.
68The result of Sabbatino—a bar against claims based on the invalidity of
Cuban expropriations—has been nullified by Congress. See 22 U.S.C.
§ 2370(e)(2) (the “Second Hickenlooper Amendment”). As evidenced by
the Supreme Court’s discussion of Sabbatino in W.S. Kirkpatrick & Co.,
Inc., v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 404–06, 409–10, the Hick-
enlooper Amendment’s specific application to cases involving Cuban
(continued … )
No. 18-2327 31
The Court’s most recent decision concerning the substan-
tive application of the act of state doctrine provides particu-
larly valuable guidance for us in resolving the present case.
In W.S. Kirkpatrick, 493 U.S. 400, the Court was confronted
with a situation where the plaintiffs, unsuccessful bidders
for a Nigerian government construction contract, brought an
action under the Racketeer Influenced and Corrupt Organi-
zations Act (“RICO”) alleging that the defendants had ob-
tained the bid by bribing Nigerian officials. Nigerian law
prohibited the payment and acceptance of bribes in connec-
tion with a government contract. Id. at 402. The district court
held that the action was barred by the act of state doctrine
because proving that the bribes were paid, as required by
RICO, would necessarily involve an inquiry into the Nigeri-
an government’s motivations, unlawful in that country, that
might embarrass the Nigerian government or interfere with
the execution of American foreign policy. Id. at 403. Relying
on the submission of the State Department that the judicial
inquiry would not embarrass the Executive Branch in the
conduct of our country’s foreign relations, the Third Circuit
reversed. Id. at 403–04.
The Supreme Court affirmed, though on different
69
grounds. It held that the act of state doctrine was inappli-
( … continued)
expropriations does not diminish Sabbatino’s import to the act of state
doctrine generally.
69
W.S. Kirkpatrick, 493 U.S. at 404–05, declined to determine whether
there should be an exception to the act of state doctrine where the acts of
state in question consist of commercial transactions, see Alfred Dunhill of
London, Inc. v. Republic of Cuba, 425 U.S. 682, 695–706 (1976) (plurality
(continued … )
32 No. 18-2327
cable to the case because neither the “relief sought” nor “the
defense interposed” required a court to declare invalid the
Nigerian government’s official act approving the contract. Id.
at 405. The Court readily admitted that, in the course of ad-
judicating the RICO claim, a United States court might well
make factual findings that would establish the illegality of
the contract under Nigerian law. Id. at 406. But this was, in
effect, no more than a collateral consequence of the court’s
task in adjudicating the RICO action because the Nigerian
contract’s “legality wa[s] simply not a question to be decid-
ed” in the suit. Id. That such judicial fact-finding might em-
barrass the Nigerian government was of no consequence. Id. at
409. The Court was clear that the act of state doctrine is
simply—and only—a rule of decision that requires an Amer-
ican court, in the process of deciding the case, to accept as
valid the acts of another sovereign taken within that sover-
eign’s own jurisdiction. Id. Thus, the act of state doctrine on-
ly bars suit where “a court must decide—that is, when the
outcome of the case turns upon—the effect of official action
70
by a foreign sovereign.” Id. at 406.
( … continued)
opinion), or where the Executive Branch asserts that applying the act of
state doctrine in a particular instance would not impair its foreign policy
interest, see First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759,
768–70 (1972) (plurality opinion).
70
The Supreme Court also acknowledged that there may be occasions
where the policy considerations animating the act of state doctrine—
international comity, respect for foreign nations, and avoiding interfer-
ence with the Executive Branch in the conduct of its foreign relations—
would justify a court’s declining to apply the doctrine despite its “tech-
nical availability.” W.S. Kirkpatrick, 493 U.S. at 409. The Court in W.S.
(continued … )
No. 18-2327 33
From these holdings of the Supreme Court, we can plot
the course that we must take in this case. First, we must de-
termine whether the six-pack rule is attributable to the gov-
ernment of Ontario for the purposes of the act of state doc-
trine. Second, we must determine whether a decision in
Mountain Crest’s favor would invalidate those acts.
B.
The burden of establishing the applicability of the act of
state doctrine rests on the party invoking the doctrine. See
Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682,
694 (1976). In applying the analytical framework established
by the Supreme Court’s cases, we first examine whether the
2000 Agreement and 2015 Agreement constitute official acts
for the purposes of the act of state doctrine.
Mountain Crest conceded, in its reply brief and at oral
argument, that both agreements were official acts of the
Province of Ontario for the purposes of the act of state doc-
( … continued)
Kirkpatrick had no occasion to elaborate further on such situations nor do
we today. We note, however, that the change of majority party of the
Ontario Legislative Assembly is hardly equivalent to the change in gov-
ernment alluded to in Sabbatino. See, e.g., Bigio v. Coca-Cola Co., 239 F.3d
440, 453 (2d Cir. 2000) (declining to apply the act of state doctrine where
the act in question occurred thirty-four years prior to the suit and under
the government of a dictator who had been dead for thirty years); Repub-
lic of the Philippines v. Marcos, 862 F.2d 1355, 1360–61 (9th Cir. 1988) (en
banc) (declining to apply the act of state doctrine where the government
had been overthrown).
34 No. 18-2327
71
trine. This concession is well-founded. The 2015 Amend-
ment to the Liquor Control Act ratifying the 2000 Agreement
is an official legislative enactment of the Ontario govern-
ment. Moreover, the LCBO, as the wholly owned Crown
agency responsible for the retail sale of alcohol in the prov-
ince, “is required to abide by the policy decisions and direc-
tives of the Government,” and “[t]he government exercised
considerable control over the LCBO,” in which “[c]omplex,
high-level decisions were made from time-to-time by senior
72
Government officials.” Hughes, 2018 CarswellOnt 3969, pa-
ra. 82, 84. The LCBO’s actions entering the two agreements
regulating the sale of alcohol within Ontario are official acts
71
Appellant’s Reply Br. 4 (“Mountain Crest is not challenging their offi-
cial status. Just as Kirkpatrick did not need to reach arguments about the
official status of the Nigerian government contract, the official status of
four acts in the present case is irrelevant because their legal effectiveness
is not being challenged.”); Oral Argument at 15:33–16:00 (“We’re not
resting on the commercial exception. We don’t, we don’t need it. … We
can accept them all as valid. None of the four acts are being declared …
null and void. We are not seeking any kind of declaratory relief … that
would seek to deny them legal effect. So … we are happy to accept that
they are all official acts.”).
72
We note that the Canadian courts adjudicating antitrust claims arising
from the 2000 Agreement under Canadian law dismissed those claims
pursuant to Canada’s “Regulated Conduct Defence.” Hughes, 2018 Car-
swellOnt 3969, para. 237–47; see also id. at para. 240 (“The 2000 Beer
Framework Agreement was in the wheelhouse … of the powers and
rights conferred on the LCBO and Brewers Retail under the Liquor Con-
trol Act.”). At its most basic level, the Regulated Conduct Defence pro-
vides that “conduct authorized by valid provincial or federal legisla-
tion … deemed to be in the public interest … cannot constitute an ‘un-
due’ limit on competition.” Id. at para. 221.
No. 18-2327 35
73
of the Ontario government. Finally, with respect to the 2015
Agreement, the government of Ontario is an actual party to
that agreement. Therefore, the acts in question are official
acts of the Ontario government.
The district court assumed, as do the parties, that the “act
of state doctrine applies the same way to a provincial gov-
74
ernment as to a national government.” This assumption is
certainly correct in the circumstances presented here because
75
a national statute authorizes the acts of the LCBO. We also
note that most other courts that have confronted this issue
have determined that the act of state doctrine applies to acts
76
of sub-national governments. Moreover, in construing the
73
Cf. Sea Breeze Salt, Inc. v. Mitsubishi Corp., 899 F.3d 1064, 1069 (9th Cir.
2018) (determining that the acts of a corporation that is majority-owned
and controlled by the Mexican government were official, sovereign
acts).
74
R.60 at 13 n.5.
75
R.S.C. 1985, c. I-3, § 3 (banning, with limited exceptions, any interpro-
vincial or international trade in alcoholic beverages other than that car-
ried about by the provincial liquor boards); see also, Canadian Breweries,
[1960] O.R. 601, para. 39 (noting that “each Province has jurisdiction to
regulate and control the sale of liquor within its boundaries and to fix
the prices at which, and the conditions under which liquor may be
sold”).
76
See In re Fresh & Process Potatoes Antitrust Litigation, 834 F. Supp. 2d
1141, 1180 (D. Idaho 2011) (cooperative of Canadian provincial govern-
ments acted in sovereign capacity for purposes of act of state doctrine);
Occidental Petroleum Corp v. Buttes Gas & Oil Co., 331 F. Supp. 92, 113
(C.D. Cal. 1971) (sheikdoms of United Arab Emirates acted in sovereign
capacity); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 293 F. Supp. 892,
(continued … )
36 No. 18-2327
act of state doctrine and defining its terms, courts have
77
sometimes looked to the Foreign Sovereign Immunity Act ;
that statute defines “foreign state” to include “a political
subdivision of a foreign state.” 28 U.S.C. § 1603(a). Finally,
turning to the policy concerns animating the act of state doc-
trine, judicial questioning of the acts of a sub-national gov-
ernment could interfere with the foreign relations efforts of
our political branches just as much as questioning the acts of
a national government could. Therefore, the first prong of
the act of state doctrine analysis is met: the agreements es-
tablishing the six-pack rule are acts of state for the purposes
of the doctrine.
Our next task is to examine whether, in adjudicating this
case, the court “must decide … the effect of official action by a
foreign sovereign.” W.S. Kirkpatrick, 493 U.S. at 406. In short,
we ask whether the Ontario legislation giving the six-pack
rule the force and effect of law determines the “outcome of
the case.” Id. Put another way, does the “relief sought or the
defense interposed” by Mountain Crest “require[] a court in
the United States to declare invalid the official act[s]” of the
( … continued)
910 (S.D.N.Y. 1968) (act of state doctrine applies to member states of
West Germany), aff’d 433 F.2d 686 (2d Cir. 1970). But see Am. Indus. Con-
tracting, Inc. v. Johns-Manville Corp., 326 F. Supp. 879, 881 (W.D. Pa. 1971)
(determining that “[t]he province of Quebec is not a State within the
meanings of the doctrines of international law” because “[t]hese doc-
trines only apply to nations in the international sense such as the United
States and Canada”).
77
See, e.g., World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d
1154, 1165 (D.C. Cir. 2002).
No. 18-2327 37
Ontario government, and thus render them “ineffective as ‘a
rule of decision for the courts of this country’”? Id. at 405
(quoting Ricaud v. Am. Metal Co., 246 U.S. 304, 310 (1918)). To
answer that question, we must return to the Second Amend-
ed Complaint and determine precisely the nature of Moun-
tain Crest’s allegations.
As the case comes to us, it is clear, despite the operative
complaint’s prolixity and, at times, unartful language, that
Mountain Crest is seeking, through injunctive and declarato-
ry relief, an adjudication that the six-pack rule established by
78
the Ontario government is inoperative. First, it claims that
the six-pack rule, contained in agreements entered into by
the Ontario government and approved of in legislation, vio-
lates Section 1 of the Sherman Antitrust Act because it con-
stitutes a price-fixing and market allocation arrangement.
These agreements are per se unlawful; the mere existence of
such an arrangement violates the statute. Leegin Creative
Leather Prods., Inc., v. PSKS, Inc., 551 U.S. 877, 886 (2007).
Moreover, the existence of a per se unlawful agreement “jus-
79
tifies [its] facial invalidation.” Arizona v. Maricopa Cty. Med.
78
Mountain Crest’s claims premised directly on the six-pack rule are
further complicated by the recent action of the Ontario government re-
pudiating the 2015 Agreement. See Bill 115, Bringing Choice and Fairness
to the People Act (Beverage Alcohol Retail Sales), 1st Sess., 42nd Leg., Ontar-
io, 2019 (royal assent received June 6, 2019). This matter has not been
argued to us, and we believe that the most expeditious manner of eval-
uating this development is to permit the district court to address it on
remand.
79
The operation of the Sherman Antitrust Act here differs from the op-
eration of RICO in W.S. Kirkpatrick. Determining an agreement is unlaw-
(continued … )
38 No. 18-2327
Soc’y, 457 U.S. 332, 351 (1982). Therefore, to the extent that
Mountain Crest attacks the six-pack rule on this ground, the
act of state doctrine is, as our colleague in the district court
recognized, applicable.
Mountain Crest also asks for declaratory and injunctive
relief precluding the six-pack rule established by the Ontario
government because it violated Section 2 of the Sherman An-
titrust Act. This section makes it illegal to “monopolize, or
attempt to monopolize, or combine or conspire with any
person or persons, to monopolize any part of the trade or
commerce among the several States, or with foreign na-
tions.” 15 U.S.C. § 2. To the extent that Mountain Crest seeks
relief under this section predicated solely on the six-pack
rule, the act of state doctrine clearly precludes the action.
Adjudication of liability on this basis would have the effect
of invalidating the Ontario government’s choice to extend
monopoly benefits to Anheuser-Busch and Molson Coors.
Nevertheless, Mountain Crest’s operative complaint, fair-
ly read, is not limited to the theories of recovery that we
have just addressed. The Second Amended Complaint also
sets out allegations that Anheuser-Busch and Molson Coors,
acting through their officers and employees, violated the
same provisions of the Sherman Act by conspiring to bring
about the Ontario government’s approval of the six-pack
rule. These allegations do not implicate the act of state doc-
( … continued)
ful under 15 U.S.C. § 1 necessarily invalidates that agreement; determin-
ing an agreement was procured by bribery under RICO merely penaliz-
es the individual undertaking the racketeering activity. See 18 U.S.C.
§§ 1963, 1964.
No. 18-2327 39
trine. W.S. Kirkpatrick, 493 U.S. at 407, indicated that, where
the plaintiff is “not trying to undo or disregard governmen-
tal action,” it may “obtain damages from [the] private parties
that procured it” illegally. In reaching its conclusion, the
Court noted its earlier decision in United States v. Sisal Sales
Corp., 274 U.S. 268 (1927). W.S. Kirkpatrick, 493 U.S. at 407. In
Sisal Sales, 274 U.S. at 276, the Court did not bar an antitrust
complaint where defendants took “deliberate acts” to
“br[ing] about forbidden results” simply because the anti-
competitive conspiracy was aided by discriminatory legisla-
tion obtained from the Mexican government by the defend-
ants. Mountain Crest sets forth facts that, if accepted by a
trier of fact, might demonstrate that the defendants took
concerted action to bring about the Ontario legislation.
Holding Anheuser-Busch and Molson Coors liable for their
antecedent and allegedly deliberate acts to bring about the
six-pack rule and requiring them to pay damages to Moun-
tain Crest would not, on its face, invalidate Ontario’s chosen
regulatory scheme.
The district court did not consider the Second Amended
Complaint from this perspective, and, upon examination of
the record, we cannot say that Mountain Crest has waived
any reliance on these allegations. We are aware that such al-
legations raise significant questions of causality. We also are
aware that there may be other possible defenses, including
80
but not limited to the applicability of the Noerr-Pennington
80
E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127
(1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965).
40 No. 18-2327
81
doctrine to the lobbying of foreign governments, that must
be explored. These matters never have been addressed by
the district court and have been addressed in only a tangen-
tial way during this appeal. If the parties wish, they may
raise these matters in the district court.
The Second Amended Complaint also addresses another
area that, so far, has not come under the district court’s scru-
tiny. It plainly sets forth other activities of Anheuser-Busch
and Molson Coors, perhaps independent of the six-pack
rule, that, in Mountain Crest’s view, implicate the strictures
of the Sherman Antitrust Act. Mountain Crest has alleged a
pattern of other marketing and distribution practices that it
claims manipulated The Beer Store’s internal sales approach
to disfavor American products, including Mountain Crest’s
product. These practices, according to the operative com-
plaint, prevented Mountain Crest from achieving the econ-
omies of scale necessary to make its participation in the On-
81
Compare Coastal Sales Mktg., Inc. v. Hunt, 694 F.2d 1358, 1364–67 (5th
Cir. 1983) (extending Noerr-Pennington to petitioning of foreign govern-
ments because “Noerr was based on a construction of the Sherman Act”
and there are “no reasons why acts that are legal and protected if done in
the United States should in a United States court become evidence of
illegal conduct because performed abroad”), and Carpet Grp. Int’l v. Ori-
ental Rug Importers Ass’n, Inc., 256 F. Supp. 2d 249, 266 (D.N.J. 2003)
(agreeing with the Fifth Circuit), with Occidental Petroleum Corp. v. Buttes
Gas & Oil Co., 331 F. Supp. 92, 107–08 (C.D. Cal. 1971) (holding that
Noerr-Pennington does not extend to petitioning of foreign governments
because the doctrine was based on “avoid[ing] a construction of the anti-
trust laws that might trespass upon the First Amendment right of peti-
tion” and that concept “carries limited if indeed any applicability to the
petitioning of foreign governments”), aff’d, 461 F.2d 1261 (9th Cir. 1972).
No. 18-2327 41
tario market profitable. We cannot discern any basis for say-
ing that Mountain Crest has waived these claims. Accord-
ingly, on remand, the district court should address these
claims in due course.
Conclusion
For the reasons set forth in this opinion, we affirm in part
and vacate in part the judgment of the district court and re-
mand the case for proceedings consistent with this opinion.
Mountain Crest may recover the costs of this appeal.
AFFIRMED in part, VACATED and REMANDED in part