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Case 1:O7—cv-00002-JJF Document 44 Filed O3/10/2008 Pagei of 2
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COUNSELORS AT LAW
Phone: (302) 425-6438
Fax: (302) 428-SI34
Email: [email protected]
March 10, 2008
VIA HAND DELIVERY & ELECTRONIC FILING
Honorable Joseph J. Faman, Jr., U.S.D.J.
J. Caleb Boggs Federal Bldg.
844 N. King St.
Room 4124
Lockbox 27
Wilmington, DE 19801
Re: L..L Zucca, Inc. v. Allen Bros. Wholesale Distributors Inc., et aL
Civil Action N0. 1:07-CV-00002 QJJF-MPT)
Dear Judge Faman:
We represent Defendant Cooper-Booth Wholesale Company ("Cooper-Booth") in the
above-referenced matter. On January 23, 2007, Cooper-Booth filed a motion under Rule 12(c)
for partial judgment on the pleadings (Docket Entry No. 12), which has been fully briefed and is
currently pending before Your Honor.
ln that motion, Cooper-Booth argues that plaintiffs claims under the Delaware Unfair
Cigarette Sales Act ("UCSA"), 6 Del. C. §§ 2601 — 2608, are preempted by Section 1 of the
Shennan Act, 15 U.S.C. § 1. Cooper-Booth’s motion challenges the UCSA as being a form of
minimum resale price maintenance; a vertical restraint that the United States Supreme Court has
traditionally condemned as being a per se violation of the Sherman Act. But after the parties
fully briefed the motion, the Supreme Court released its decision in Leegin Creative Leather
Products, Inc. v. PSKS, Inc., 127 S.Ct. 2705 (2007), and held that minimum resale price
maintenance would no longer be considered a per se violation of the Sherman Act.
Upon further research after the Supreme Court’s decision in Leegin, Cooper-Booth has
determined that its Sherman Act preemption argument remains valid on the premise that the
UCSA is a horizontal price restraint, which, even after the decision in Leegin, is a per se
violation of the Sherman Act.
What we propose, therefore, is to withdraw our original motion for partial judgment on
the pleadings, which was filed pre-Leegin, and tile in its place a revised motion for partial
judgment on the pleadings. We intend to do this Wednesday, March 12, 2008.
Chase Manhattan Centre 1201 Market Street Suite 800 Wilmington, DE 19801
www.B|anl Delaware • Florida • New Jersey • New York • Ohio • Pennsylvania • Washington, DC • Hong Kong

Case 1:O7—cv-OOOO2-JJF Document 44 Filed O3/10/2008 Page 2 of 2
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COUNSELORS AT LAW
Honorable Joseph J. Farnan, Jr., U.S.D.J.
March I0, 2008
Page 2
If Your Honor disagrees with our proposed course of action, please let us know and we
will act accordingly. Thank you.
Respectfully submitted,
..,_ QQTJZC `_\B CN `\~· J"/·
Christine S. Azar
DE I.D. No. 4170
CSA:ka/pfc
cc: Stephen M. Orlofsky, Esquire (Via Electronic Service)
Kit Applegate, Esquire (Via Electronic Service)
(Co-Counsel for Defendant Cooper-Booth Wholesale Company)
Kimberly M. Large, Esquire (Via Electronic Service)
(Counsel for Plaintiff L.J. Zucca, Inc.)
James W. Semple, Esquire (Via Electronic Service)
(Counsel for Defendant Allen Bros. Wholesale Distributors Inc.)
David E. Brand, Esquire (Via Electronic Service)
(Counsel for Defendant Eby—Brown Company LLC)
David S. Eagle, Esquire (Via Electronic Service)
(Counsel for Defendant Western Skier Ltd.)