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1、pd4ml evaluation copy. visit http:/United States Court of AppealsFor the First CircuitNo. 05-1259ALLIANCE OF AUTOMOBILE MANUFACTURERS,Plaintiff, Appellant,v.DAN A. GWADOSKY, IN HIS OFFICIAL CAPACITY ASSECRETARY OF STATE OF THE STATE OF MAINE, AND G. STEVEN ROWE, IN HIS OFFICIAL CAPACITY AS ATTORNEY
2、GENERAL OF THE STATE OF MAINE,Defendants, Appellees.APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MAINEHon. John A. Woodcock, Jr., U.S. District Judgepd4ml evaluation copy. visit http:/BeforeSelya, Circuit Judge,Coffin, Senior Circuit Judge,and Howard, Circuit Judge.Russell R. Egge
3、rt, with whom Andrew J. Pincus, William L. Olsen, Mayer, Brown, Rowe Liberty Lincoln-Mercury, Inc.v. Ford Motor Co., 923 F. Supp. 665 (D.N.J. 1996), aff“d, 134 F.3d 557 (3d Cir. 1998);Darling“s v. Ford Motor Co., 825 A.2d 344 (Me. 2003). The relationship typically flows from afranchise agreement tha
4、t, in addition to other provisions, requires the dealer to perform warrantyrepairs (without regard to whether the dealer sold the vehicle in question) and sets out explicitpd4ml evaluation copy. visit http:/rules for how the manufacturer will reimburse the dealer for that work.Predictably, warranty
5、reimbursement rates have been a source of considerable friction. Themanufacturers have demanded preferential pricing of warranty repairs as a sort of volumediscount. The dealers have argued that the discounted rate structure not only reflects an excessiveimbalance in market power, but also forces th
6、em to increase the charges for non-warranty repairs(a practice that effectively requires non-warranty customers to subsidize warranty work).In 1975, the Maine legislature stepped into this imbroglio and began to regulate the price ofwarranty repairs within Maine“s borders. See 1975 Me. Laws 1788 (co
7、dified as amended at Me.Rev. Stat. Ann. tit. 10, 1176) (mandating that motor vehicle manufacturers compensate dealers“adequately and fairly“ for warranty repairs). In its most recent incarnation, enacted in 1991, thisprovision requires that manufacturers reimburse their Maine dealers for parts and l
8、abor at theretail rates customarily charged to non-warranty customers. See Me. Rev. Stat. Ann. tit. 10, 1176.In the usual motor vehicle franchise agreement, the manufacturer reserves the right to setwholesale vehicle prices unilaterally. Exercising this right, Ford Motor Co. responded to Maine“samen
9、ded version of section 1176 by adding a “warranty parity surcharge“ to the wholesale priceof motor vehicles sold in Maine. This surcharge was designed to recoup the incrementalexpenses that resulted from retail-rate reimbursement.pd4ml evaluation copy. visit http:/Adjudicating a dealer challenge to
10、the surcharge, we held that nothing in Maine“s motorvehicle franchise law prohibited it. See Acadia Motors, Inc. v. Ford Motor Co., 44 F.3d 1050,1055-57 (1st Cir. 1995); see also Acadia Motors, Inc. v. Ford Motor Co., 799 A.2d 1228, 1231(Me. 2002) (agreeing with this conclusion). In 2002, Ford set i
11、ts surcharge at $500 per vehicleand collected more than $3,600,000 in additional revenue from Maine dealers. No othermanufacturer has, as yet, followed suit.Once again, the Maine legislature intervened. After several failed attempts at crafting asolution, it passed Legislative Document 1294. That do
12、cument amended section 1176 byproviding in pertinent part that a motor vehicle manufacturer “may not otherwise recover its costfor reimbursing a dealer for parts and labor pursuant to this section.“ L.D. 1294 10, 121stLeg., 1st Reg. Sess. (Me. 2003). For simplicity“s sake, we refer throughout this o
13、pinion to thisproviso section 10 of L.D. 1294 as the “recoupment bar.“On September 4, 2003, the Alliance filed suit in Maine“s federal district court, challengingthe recoupment bar as unconstitutional under the Commerce, Contracts, and Takings Clauses. Itsought declaratory and injunctive relief and
14、named as defendants Dan A. Gwadosky, in hisofficial capacity as Maine“s Secretary of State, and G. Steven Rowe, in his official capacity asMaine“s Attorney General (collectively, the State).The district court allowed the Maine Auto Dealers Association (MADA) a right toparticipate in the proceedings
15、as an amicus curiae. It proceeded to deny the Alliance“s motion fora preliminary injunction, finding that the Alliance had established neither a likelihood of successpd4ml evaluation copy. visit http:/on the merits nor irreparable harm. See Alliance I, 304 F. Supp. 2d at 117; see also Ross-Simonsof
16、Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996) (explicating the preliminaryinjunction standard). As to the Commerce Clause challenge, the court concluded that therecoupment bar did not reflect a discriminatory purpose, did not give rise to a discriminatoryeffect, and did not have any forbidden extraterritorial reach. See Alliance I, 304 F. Supp. 2d at110-14. The Contracts Clause challenge was impuissant, the court
