SECOND DIVISION
FILED: July 24, 2008
No. 1-08-1859
GRANT IMPORTING & DISTRIBUTING CO., ) APPEAL FROM THE
HAYES BEER DISTRIBUTING COMPANY, L&V ) CIRCUIT COURT OF
DISTRIBUTORS, INC., CHICAGO BEVERAGE ) COOK COUNTY
SYSTEMS LLC, JOSEPH MULLARKEY )
DISTRIBUTORS, INC., TOWN & COUNTRY )
DISTRIBUTORS, INC., KOZOL BROS., INC., )
FRED W. LOSCH BEVERAGE CO., )
SCHAMBERGER BROS., INC., BURKE )
BEVERAGE, INC., and EUCLID BEVERAGE, )
LTD., )
) 08 CH 07887
Plaintiffs-Appellants )
)
v. )
)
AMTEC INTERNATIONAL OF NY CORP. and )
EUROPEAN BEER IMPORTS, INC., ) HONORABLE
) JAMES R. EPSTEIN,,
Defendants-Appellees. ) JUDGE PRESIDING.
PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiffs, Grant Importing & Distributing Company, Hayes
Beer Distributing Company, L&V Distributors, Inc., Chicago Beverage
Systems LLC, Joseph Mullarkey Distributors, Inc., Town & Country
Distributors, Inc., Kozol Brothers, Inc., Fred W. Losch Beverage
Company, Schamberger Brothers, Inc., Burke Beverage, Inc., and
Euclid Beverage, Ltd., filed the instant appeal pursuant to Supreme
Court Rule 307 (188 Ill. 2d R. 307), seeking the reversal of an
No. 1-08-1859
order of the circuit court which denied their motion for a
temporary restraining order (TRO). For the reasons which follow,
we affirm.
In addition to other theories of recovery, the plaintiffs
sought injunctive relief against the defendants, Amtec
International of NY Corp. (Amtec) and European Beer Importers, Inc.
(European), contending that they violated the Beer Industry Fair
Dealing Act (Act) (815 ILCS 720/1 et seq. (West 2006)). In their
second amended complaint, the plaintiffs made the following factual
assertions.
Until approximately December of 2007, Advanced Brands &
Importing, Inc. (Advanced) was the exclusive importer of Zywiec
beer into the greater Chicagoland area. The plaintiffs are duly
licensed "beer wholesalers" as defined by section 1.1(3) of the Act
(815 ILCS 720/1.1(3)(West 2006)), and Advanced granted them the
right to be the exclusive wholesalers of Zywiec beer in their
respective geographic territories in Illinois.
Advanced has recently advised the plaintiffs that the
manufacturer of Zywiec beer refuses to ship the beer to it for
import and distribution in Illinois. In its place, the
manufacturer has granted Amtec, or its wholly owned subsidiary
European, the exclusive right to import and distribute Zywiec beer
into the United States, including the greater Chicagoland area.
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Neither Amtec nor European has agreed to distribute any further
Zywiec beer to the plaintiffs, and they have not provided the
plaintiffs with any reason for the termination of their
distributorships, nor have they afforded the plaintiffs an
opportunity to cure any cause for the terminations. The plaintiffs
sought a TRO enjoining Amtec and European from selling or
distributing Zywiec beer in Illinois until such time as the
plaintiffs’ exclusive distribution rights can be adjudicated.
Amtec responded to the plaintiffs’ motion supported, in part,
by the affidavit of its president, Boguslaw Pajor. According to
Pajor’s affidavit, Zywiec beer was imported into Illinois from 2005
through 2007 by Advanced pursuant to an agreement with Grupa Zwyiec
S.A. (Grupa), the brewer of Zwyiec beer. On December 10, 2007,
Grupa notified Advanced that, effective January 1, 2008, Advanced
would no longer be the importer of Zwyiec beer. Thereafter, Grupa
appointed Amtec as the exclusive importer of Zywiec beer into
Illinois. Amtec, in turn, appointed European the sole distributor
of Zywiec beer in Illinois. Amtec asserted that it did not
terminate the plaintiffs’ rights to distribute Zywiec beer, and
argued that, since it is not a "successor brewer" within the
meaning of section 1.1(6) of the Act (815 ILCS 720/1.1(6)(West
2006)), it has no obligation to honor the plaintiffs’ distribution
agreements with Advanced.
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The circuit court denied the plaintiffs’ motion for a TRO, and
this appeal followed. The plaintiffs argue, as they did before the
trial court, that Amtec and European violated the Act by
terminating, canceling or failing to renew their Zywiec beer
distributorship agreements without notice or good cause and without
providing them with an opportunity to cure the reason for the
terminations and, as a consequence, they were entitled to
injunctive relief pursuant to section 9(3) of the Act (815 ILCS
720/9(3)(West 2006)).
Section 3 of the Act provides that, except for reasons not
relevant to this action, "no brewer or beer wholesaler may cancel,
fail to renew, or otherwise terminate an agreement unless the
brewer or wholesaler furnishes prior notification to the affected
party." 815 ILCS 720/3(West 2006). Section 4 states that "[n]o
brewer or beer wholesaler may cancel, fail to renew or otherwise
terminate an agreement unless the party intending that action has
good cause for the cancellation, failure to renew or termination,
has made good faith efforts to resolve disagreements, and, in any
case in which prior notification is required under Section 3, the
party intending to act has furnished the prior notification and the
affected party has not eliminated the reasons specified in the
notification for cancellation, failure to renew, or termination,
within 90 days after the sending of the notification." 815 ILCS
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720/4(West 2006). In order to determine whether sections 3 and 4
of the Act are applicable to the circumstances present in the
instant case, reference must be made to the Act's definitions of
the terms "agreement," "brewer," and "successor brewer."
The Act defines an "agreement" as "any contract, agreement,
arrangement, operating standards, or amendments to a contract,
agreement, arrangement, or operating standards, the effect of which
is to substantially change or modify the existing contract,
agreement, arrangement, or operating standards, whether expressed
or implied, whether oral or written, for a definite or indefinite
period between a brewer and a wholesaler pursuant to which a
wholesaler has been granted the right to purchase, resell, and
distribute as a wholesaler or master distributer any brand or
brands of beer offered by a brewer." 815 ILCS 720/1.1(2)(West
2006). A "brewer" is defined, in relevant part, as a person who is
engaged in the manufacturer of beer, a master distributer or a
successor brewer. 815 ILCS 720/1.1(4)(West 2006). A "successor
brewer" is "any person who in any way obtains the distribution
rights that a brewer or master distributor once had to manufacture
or distribute a brand or brands of beer whether by merger, purchase
of corporate shares, purchase of assets, or any other arrangement."
815 ILCS 720/1.1(6)(West 2006).
There is no dispute concerning the status of the importing and
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No. 1-08-1859
distribution arrangements between Grupa and Advanced, its master
distributor, and between Advanced and the plaintiffs as
"agreements" within the meaning of the Act. The issue is whether
the defendants are "brewers" in the context of those agreements
such that they might be held liable for failing to comply with the
requirements of sections 3 and 4 of the Act.
The plaintiffs argue that, by obtaining the right to import
and distribute Zywiec beer that was previously held by Advanced,
Amtec became a successor brewer and was, therefore, obligated to
continue to use the plaintiffs as exclusive wholesalers within
their respective territories. Amtec argues that it is not a
successor brewer within the meaning of the Act because it obtained
its import and distribution rights directly from the manufacturer,
Grupa, and not from or through Advanced. Resolution of the issue
involves the construction of the Act's definition of a "successor
brewer."
The cardinal rule of statutory construction is to ascertain
the intent of the legislature. Murray v. Chicago Youth Center, 224
Ill. 2d 213, 235, 864 N.E.2d 176 (2007). Legislative intent is
best gleaned from the words of the statute itself, and where the
statutory language is clear and unambiguous, it is to be given
effect. General Motors Corp. v. State of Illinois Motor Vehicle
Review Board, 224 Ill. 2d 1, 13, 862 N.E.2d 209 (2007). Issues of
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No. 1-08-1859
statutory construction are reviewed de novo. Paris v. Feder, 179
Ill. 2d 173, 177-78, 688 N.E.2d 137 (1997).
Initially it might appear that any entity that obtains the
distribution rights previously held by a brewer or master
distributor is a successor brewer within the meaning of the Act.
However, a closer analysis of the statute leads us to conclude that
the manner in which the distribution rights are obtained are
critical to a determination of whether an entity is a successor
brewer. We believe that the statute contemplates that, in order to
qualify as a successor brewer, the distribution rights must have
been obtained through some arrangement with the original holder of
the rights, be it by merger, purchase of corporate shares, purchase
of assets, or otherwise.
If, as the plaintiffs argue, the only circumstance necessary
for an entity to qualify as a successor brewer is that it obtain
the distribution rights previously held by a brewer or master
distributor, the legislature would have had no need to include the
phrase "whether by merger, purchase of corporate shares, purchase
of assets, or any other arrangement." 815 ILCS 720/1.1(6)(West
2006). One of the fundamental principals of statutory construction
is that words and phrases should not be viewed in isolation, but
should be interpreted so that terms are not rendered superfluous.
Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414,
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422, 781 N.E.2d 249 (2002). Additionally, the phrase "or any other
arrangement" appearing at the end of the definition of a successor
brewer (815 ILCS 720/1.1(6)(West 2006)) should be interpreted under
the doctrine of ejusdem generis as describing a transaction similar
to the preceding types of transactions listed in the statute;
namely, a merger, purchase of corporate shares, or purchase of
assets. See City of East St. Louis v. East St. Louis Financial
Advisory Authority, 188 Ill. 2d 474, 484-85, 722 N.E.2d 1129
(1999).
Based upon the foregoing analysis, we believe that, to qualify
as a successor brewer under the Act, a replacement distributor of
beer must have obtained its distribution rights through some
arrangement with the original holder of the rights that is similar
to the type of transaction contemplated by the statute. See
Shestokas Distributing, Inc. v. Hornell Brewing Company, Inc., No.
93-1537, 1993 WL 522179 (7th Cir. Dec. 16, 1993).
It is clear from the matters of record that the defendants did
not obtain their distribution rights from Advanced and, as a
consequence, they do not qualify as either successor brewers or
brewers under the Act. That being the case, the plaintiffs did not
acquire any rights under the Act to injunctive relief against them.
We find, therefore, that the circuit court did not abuse its
discretion in denying the plaintiffs' motion for a TRO.
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No. 1-08-1859
Affirmed.
SOUTH and KARNEZIS, JJ., concur.
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