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Flying J, Inc. v. Vanhollen

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ARGUED JUNE 2, 2009

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

The Wisconsin Uniform Sales Act, Wis. Stat. § 100.30, forbids retail sellers of gasoline to sell their product below cost plus a markup equal to the higher of 6 percent of the retailer’s cost or 9.18 percent of the wholesale price of the product. The Act authorizes injunctive and monetary remedies both in suits by the state, and in private suits by persons injured by a violation of the Act. Id., §§ 100.30(4), (5), (5m). Flying J, which sells gasoline at truck stops, brought this suit in federal court against the state to enjoin the enforcement of the Act, on the ground that it is preempted by the Sherman Act. The district court agreed that it was preempted and issued the injunction-whereupon the state threw in the towel and decided not to appeal.

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