The opinion of the court was delivered by: Scott, District Judge.
This cause is before the Court on Plaintiff Wirtz Corporation's, d/b/a
Judge & Dolph, Ltd. (J & D), motion to remand this action against
Defendant United Distiller & Vintners North America, Inc. (UDVNA) to the
Illinois Liquor Control Commission (ILCC). UDVNA removed this action from
the ILCC to this Court on diversity grounds pursuant to
28 U.S.C. § 1441. J & D moves to remand this case on the basis that
the action before the ILCC is not subject to removal. For the reasons
stated below, the motion to remand is DENIED.
Plaintiff J & D, an unincorporated division of Wirtz Corporation, is a
licensed wholesale distributor of adult beverage products in Illinois.
UDVNA is an importer and manufacturer of distilled spirits and wines.
Wirtz is a resident of Illinois. UDVNA is a resident of Connecticut.
Since 1996, J & D has served as exclusive distributor in the State of
Illinois of certain adult beverage products imported or manufactured by
UDVNA, pursuant to certain written distributorship agreements between
UDVNA and J & D.
On May 21, 1999, Illinois Governor Ryan signed into law the Illinois
Wine and Spirits Industry Fair Dealing Act of 1999, Public Act 91-2, 815
ILCS 725/1 et seq., (the "Fair Dealing Act"), commonly known as the Wirtz
Law in recognition of Wirtz's leading role in lobbying for its passage.
The Fair Dealing Act applies to virtually all agreements between
suppliers and distributors of wine and distilled spirits, including those
that pre-date the Fair Dealing Act. In the case of pre-existing
agreements, the Fair Dealing Act prohibits suppliers from terminating or
failing to renew such agreements except in the exercise of good faith.
On July 8, 1999, J & D filed a petition before the ILCC alleging that
UDVNA violated the Fair Dealing Act by considering the appointment of
additional distributors for UDVNA products in Illinois, and seeking an
order prohibiting UDVNA from adding other Illinois distributors. On July
9, 1999, J & D's counsel wrote to the ILCC's counsel requesting that the
ILCC issue an order at its scheduled July 14, 1999, meeting in
Springfield, Illinois, prohibiting UDVNA from appointing one or more
additional distributors, and requiring UDVNA to continue supplying J & D
at prices and quantities in effect prior to the filing of its petition,
until the matters in dispute between the parties are determined by an
order that is final and nonreviewable.
On July 13, 1999, before the ILCC had taken any action on the
petition, UDVNA removed the case to this Court. Shortly thereafter, UDVNA
filed in this Court a motion to dismiss, transfer or stay the action (d/e
4) based on the pendency of the Connecticut action. On August 2, 1999, J
& D moved to remand the case to the ILCC and to stay consideration of
UDVNA motion to dismiss, transfer, or stay (d/e 6,8).
The Seventh Circuit Court of Appeals has addressed the issue of whether
a state agency is a State court for removal purposes. Floeter v. C. W
Transport, Inc., 597 F.2d 1100 (7th Cir. 1979). In Floeter, employees
filed an action against their employer and their local union before the
Wisconsin Employment Relations Commission (WERC) alleging breach of
contract and unfair representation. The district court held that the WERC
was a "State court" for the purposes of the removal statute. The Seventh
Circuit Court of Appeals, in affirming the district court, found that the
WERC procedures were "substantially similar to those traditionally
associated with the judicial process," and the "state's interest in
providing a convenient and expeditious tribunal to adjudicate the rights
and interests of the parties. . . [did] not outweigh the defendant's
right to remove the action to federal court." Floeter, 597 F.2d at 1102.
The Floeter Court articulated a functional as opposed to a literal test
for determining whether a state administrative body is a State court for
purposes of remand. The Floeter Court held that "the title given a state
tribunal is not determinative; it is necessary to evaluate the
functions, powers, and procedures of the state tribunal and consider
those factors along with the respective state and federal interests in
the subject matter and in the provision of a forum." Id.,citing,
Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Bd.,
454 F.2d 38, 44 (1st Cir. 1972).
FUNCTION, POWERS, AND PROCEDURES OF THE ILCC
The first part of the Floeter test requires the Court to evaluate the
functions, powers, and procedures of the state tribunal. ILCC's functions
are governed primarily by the Liquor Control Act, 235 ILCS 5/1-1 et seq.
The Liquor Control Act authorizes the ILCC to issue and revoke licenses
to manufacturers, importers, distributors, and retailers and otherwise
enforce the Liquor Control Act (e.g., setting standards of manufacture,
inspection of premises where alcoholic liquors are manufactured,
distributed, or sold).
The ILCC is further empowered under the Fair Dealing Act to enforce and
administer its provisions. Sections 15 through 30 of the Fair Dealing Act
govern "all agreements between a distributor and a supplier . . . entered
into after the effective date of [the Act]." Fair Dealing Act, §
10(d). The agreements between J & D and UDVNA pre-date the Fair Dealing Act
and are not governed by Sections 15 through 30. Section 35 "clarifies
existing rights and obligations and establishes remedial procedures," for
those parties registered under the Liquor Control Act, and applies to the
agreements between J & D and UDVNA. § 35(a). Section 35(b) provides
that "[u]nder the existing obligation to act in good faith, no
registration or obligation to register under Section 6-9 [of the Liquor
Control Act] may be terminated, nor may a ...