212 F.3d 995 (7th Cir. 2000)
Kendall-Jackson Winery, Ltd., et al.,    Plaintiffs-Appellees,v.Leonard L. Branson, Chairman of the  Illinois Liquor Control Commission, et al.,    Defendants,andWirtz Corporation, doing business  as Judge & Dolph, Ltd., et al.,    Defendants-Appellants.
Nos. 00-1062 & 00-1126
In the  United States Court of Appeals  For the Seventh Circuit
Argued March 28, 2000Decided May 12, 2000

Appeals from the United States District Court  for the Northern District of Illinois, Eastern Division.  Nos. 99 C 3813 & 4312--Joan B. Gottschall, Judge.
Before Easterbrook, Manion, and Evans, Circuit Judges.
Easterbrook, Circuit Judge.


1
Last year Illinois  revamped its regulation of the liquor  distribution business. The Illinois Wine and  Spirits Industry Fair Dealing Act of 1999, 815  ILCS 725/1 to 725/99, makes it unlawful for a  supplier of alcoholic beverages to cancel or  substantially alter any distribution arrangement,  new or existing, without "good cause." "'Good  cause' means a failure by a distributor to comply  with essential and reasonable requirements  imposed upon the distributor by the supplier or  bad faith in the performance of the  distributorship agreement." 815 ILCS 725/5.  Suppliers, which often encourage competition  among distributors for the privilege of acting as  wholesalers (a process that holds down the cost  of distribution services), were dismayed by the  new statute. Some tried to terminate their  distributors before the new law was enacted, so  that they could at least take bids before  becoming locked in, only to be met by 815 ILCS  725/35(c)(2), which empowers the Illinois Liquor  Control Commission to order suppliers to continue  furnishing their goods to the same distributors, on the same terms, and at the same prices, even  if preexisting contracts permit change at will.  Immediately after the Act went into force on May  21, 1999, several distributors asked the  Commission to direct suppliers to resume (or  continue) dealings that had been (or were about  to be) discontinued. The Commission swiftly  issued ex parte interim orders to that effect.  Section 725/35(f) forbids any state court to  interfere until the Commission has rendered a  final decision but does not set a time limit for  the Commission. After issuing its ex parte  orders, the Commission settled into what appeared  to be extended slumber. Flummoxed by the state  process, the suppliers turned to federal court.


2
Suing under 42 U.S.C. sec.1983, three suppliers-  -Kendall-Jackson Winery, Jim Beam Brands, and  Sutter Home Winery--contend that the Act violates  the contracts clause of the Constitution by  depriving them of entitlements, such as the  rights to choose distributors and to set prices,  that they possessed under contracts and former  law. They also contend that the Act discriminates  against interstate commerce, and thus violates  the reservation of powers to Congress in the  commerce clause, because only out-of-state  wineries are locked into distributors. The Act,  which applies to "agreements" between suppliers  and distributors, defines that word this way:


3
"Agreement" means any contract, agreement, course  of dealing, or arrangement, express or implied,  whether oral or written, for a definite or  indefinite period between a supplier (other than  (i) an Illinois winery or (ii) a winery that has  annual case sales in the State of Illinois less  than or equal to 10,000 cases per year, and a  distributor pursuant to which a distributor has  been granted a distributorship).


4
815 ILCS 725/5. Although this language misplaces  the closing parenthesis (it should come after  "year" and not "distributorship"), the exclusion  of local wineries is plain and creates problems  under Bacchus Imports, Ltd. v. Dias, 468 U.S. 263  (1984), and similar cases. The exclusion of small  sellers also may have implications for interstate  commerce, because it carves out wineries that  sell fewer than 10,001 cases "in the State of  Illinois" rather than all small wineries. There  are similar, and redundant, exclusions in  sec.725/10(d), sec.725/30, and sec.725/35(b),  (c)(1), and (c)(2). The district court concluded  that the Act probably violates both the contracts  clause and the commerce clause, and it issued a  preliminary injunction. 82 F. Supp. 2d 844 (N.D.  Ill. 2000). The three suppliers then dropped  their old distributors, which appealed. R.J.  Distributing Co., one of these, dismissed its  appeal under Fed. R. App. P. 42(b). The two other  appeals are live--but the Commission is not among  the appellants. (We refer to "the Commission" for  convenience; its commissioners are the parties.  See Ex parte Young, 209 U.S. 123 (1908).)


5
If the district court had entered relief  against the distributors, the Commission's  decision not to appeal would not deprive the  distributors of an opportunity to rid themselves  of judicial obligations or restrictions. But the  district court's injunction runs against the  Commission exclusively. The operative language  is:


6
Until further order of the Court, the  Commissioners, and all persons acting  under their direction or control, are  PRELIMINARILY ENJOINED from:


7
i.  enforcing or applying the Illinois  Wine and Spirits Industry Fair Dealing Act  of 1999 in any way against Jim Beam; and


8
ii. enforcing any orders previously  issued by the Commission under the Act  directed to Jim Beam, including but not  limited to the order dated June 2, 1999  directing Jim Beam to continue providing  products alleged to have been withdrawn in  violation of the Act to Pacific Wine  Company at prices and quantities in effect  under prior distributorship relationships.


9
A second injunction, changing only the names and  date, was entered in favor of Kendall-Jackson.  Because the Commission has not appealed, it  remains bound by the injunctions no matter what  happens on the distributors' appeals, so it is  not clear what point the distributors' appeals  can serve. Penda Corp. v. United States, 44 F.3d  967, 971 (Fed. Cir. 1994). Many cases, of which  Diamond v. Charles, 476 U.S. 54 (1986), and  Princeton University v. Schmid, 455 U.S. 100  (1982), are examples, show that a choice by a  public body not to appeal from an adverse  decision may doom any effort by private litigants  to obtain review of the judgment. We inquired at  oral argument whether the distributors are  seeking more than an advisory opinion, and we  have received post-argument memoranda from both  the suppliers and the distributors.


10
According to the distributors, we can knock out  the injunction against the Commission, despite  its election not to appeal, by concluding that  the district court should have abstained from  decision; and if the distributors' appeal can  affect the injunction (and thus restore the  Commission's entitlement to enforce its orders),  then they are entitled to pursue relief here. The  conclusion follows from the premise, but the  premise is unsound. The distributors conceive of  an obligation to abstain under Younger v. Harris,  401 U.S. 37 (1971), or Texas Railroad Commission  v. Pullman Co., 312 U.S. 496 (1941), the two  species of abstention potentially implicated by  this suit, as equivalent to the absence of  subject-matter jurisdiction, which means that all  of the district court's orders (even those  against non-appellants) must be vacated. Yet Ohio  Bureau of Employment Services v. Hodory, 431 U.S.  471, 477-80 (1977), holds that a state may waive  Younger abstention. See also, e.g., Morales v.  Trans World Airlines, Inc., 504 U.S. 374, 381  (1992); Brown v. Hotel & Restaurant Employees,  468 U.S. 491, 500 n.9 (1984). An entitlement to  waive is incompatible with a jurisdictional  characterization, and in Ohio Civil Rights  Commission v. Dayton Christian Schools, Inc., 477  U.S. 619, 626 (1986), the Court drew this  conclusion and rejected a contention that  district courts lack jurisdiction whenever they  should have abstained.


11
Illinois did not affirmatively waive the  benefits of abstention, as the state agencies did  in Hodory, Brown, and similar cases. But by  declining to appeal the Commission has forfeited  the application of that doctrine, at least for  the time being. Abstention is designed for the  states' benefit, and if a state is content with  the outcome of federal litigation--as the  Commission is content with the preliminary  injunction--then abstention serves no point.  Perhaps federal judges have the power to  disregard a forfeiture (as opposed to a waiver),  just as they have discretion to overlook a  state's failure to assert the exhaustion  requirement in a collateral attack on a criminal  judgment. See Granberry v. Greer, 481 U.S. 129  (1987); cf. Hilton v. Braunskill, 481 U.S. 770  (1987). Hodory observes that states cannot compel  federal courts to adjudicate a tough  constitutional point when state courts may  construe the statute in a way that obviates the  need. 431 U.S. at 480 n.11 (discussing Pullman  abstention). This implies that we might have the  power to consider abstention despite the  Commission's acquiescence in the preliminary  injunction. But it does not demonstrate that we  should use whatever power we possess. Federal  courts abstain when states offer means to resolve  (or to avoid) consideration of constitutional  questions. Illinois does not offer any visible  means of avoidance, and it has done everything  possible to frustrate resolution. The Commission  can take as long as it wants to issue a final  order, and so far it has yet to address the  suppliers' objections to continuation of their  pre-Act distribution relations. Until the  Commission acts, state courts are forbidden to  resolve disputes. Similarly unbounded delay by  Illinois was deemed unconstitutional in Edgar v.  MITE Corp., 457 U.S. 624 (1982), and none of the  Justices in MITE even hinted that abstention  would have been appropriate. Moreover, the  argument defendants offer in support of Pullman  abstention is not that state courts could  construe the Act in a way that makes  constitutional claims drop out, but that they  might be inclined to sever the exemption of local  suppliers. Severance does not avoid adjudication;  it is just one possible consequence of a  constitutional decision.


12
With abstention out of the picture, the  distributors' position collapses. Their injury is  derivative rather than direct. Nothing in the  injunctions imposes any disabilities on them,  rather than the Commission. The distributors  emphasize that the injunctions injure them, by  depriving them of the benefits of the  Commission's orders. That much is indisputable;  the problem, however, is that this injury cannot  be undone now unless we are entitled to vacate  injunctions that do not run against the  appellants. The critical question is this: when  a district judge enters an order creating  obligations only for Defendant A, may the court  of appeals alter the judgment on appeal by  Defendant B when obligations imposed on A  indirectly affect B? The distributors have not  located any decision by the Supreme Court giving  an affirmative answer, which would be  incompatible with Diamond and Princeton. The  Commission's decision not to appeal leaves the  distributors in the position that they would have  occupied had the Commission not entered the  orders in the first place--and because Illinois  does not recognize any private right of action to  contest such an enforcement decision by the  Commission, it would not be sound to allow the  distributors to challenge that decision  indirectly. Cf. Heckler v. Chaney, 470 U.S. 821  (1985); Allen v. Wright, 468 U.S. 737 (1984);  Leeke v. Timmerman, 454 U.S. 83 (1981); Linda  R.S. v. Richard D., 410 U.S. 614 (1973).


13
By addressing the subject under the rubric of  "injury in fact," the distributors miss the real  problem: redressability. Sure the injunction  injures them, but how can their appeal redress  that injury given that the injunction will  continue to bind the Commission? See Sea Shore  Corp. v. Sullivan, 158 F.3d 51 (1st Cir. 1998);  Associated Builders & Contractors v. Perry, 16  F.3d 688 (6th Cir. 1994); McLaughlin v. Pernsley,  876 F.2d 308 (3d Cir. 1989). When a statute  creates a private right of action, it is possible  to see how such a question may be answered  affirmatively. Consider Mausolf v. Babbitt, 125  F.3d 661 (8th Cir. 1997), in which the district  court enjoined the National Park Service from  enforcing certain regulations, and the Park  Service did not pursue an appeal. Private parties  that had intervened in the case sensibly were  allowed to appeal, not simply because the  injunction injured them (to the extent the  regulations had helped them) but because federal  regulations may be enforced by private parties by  suits against the agencies (under the  Administrative Procedure Act) and by suits  against private parties under the federal-  question jurisdiction to the extent a statute or  regulation creates a private right of action, or  under 42 U.S.C. sec.1983 to the extent the  defendant is a state actor. See Maine v.  Thiboutot, 448 U.S. 1 (1980). Many cases are  similar in spirit to Mausolf, and we do not  question their holdings. Likewise, a union or  employer that prevails before the National Labor  Relations Board may ask the Supreme Court to  review a decision refusing to enforce that order,  even though the Board's General Counsel has  absolute prosecutorial discretion not to file a  charge of unfair labor practices. After a charge has been filed, the Board has dual roles as  prosecutor and adjudicator, and private parties  acquire rights in the Board's final decisions  that are enforceable even if the Board is content  to see its orders annulled. 29 U.S.C. sec.160(f).  But the distributors do not contend that Illinois  law treats the Commission as an adjudicator,  whose unfavorable decisions are subject to  judicial review, nor has the Commission entered  any final decision.


14
Nor do they contend that Illinois law provides  a private right of action, after the fashion of  the APA, to enforce the Commission's orders that  the district court enjoined. Recall that Illinois  forbids any judicial review of the Commission's  interim decisions under sec.725/35. See 815 ILCS  725/35(f). Whatever review and enforcement  ultimately may be available under sec.725/35(e)  depend on a final order. A distributor applying  to the Commission for interim relief under  sec.725/35(d) appears to be just like a person  asking the NLRB's General Counsel to initiate a  proceeding under the National Labor Relations  Act. (Wirtz Corporation asserts that a state  court could issue a writ of mandamus to compel  the Commission to proceed, but it does not cite  any decision doing this, under either the 1999  Act or any similar Illinois law, and decisions  such as Fisher v. Lexington Health Care, Inc.,  188 Ill. 2d 455, 722 N.E.2d 1115 (1999), appear  to look the other way.) Because private parties  cannot conduct an independent enforcement action,  the injunction could not adversely affect the  distributors in such an action, so Fishgold v.  Sullivan Drydock & Repair Corp., 328 U.S. 275,  282-83 (1946), does not support their appeal. Our  situation is similar to Diamond, where the state  law was enforceable only by a public prosecutor,  without the possibility of review at the behest  of private persons. Unlike an order issued by the  NLRB, an interim order issued by the Commission  appears to be enforceable only by (or at the  behest of) the Commission itself. To the extent  that Norman's on the Waterfront, Inc. v.  Wheatley, 444 F.2d 1011 (3d Cir. 1971), and  Goldie's Bookstore, Inc. v. Superior Court, 739  F.2d 466, 468 n.2 (9th Cir. 1984), hold that  anyone who suffers injury in fact may appeal an  order directed to a non-appealing public  prosecutor, they did not survive Diamond.


15
One aspect of the distributors' argument on the  merits undercuts their contention that they may  appeal independently of the Commission and  suggests that they were not aggrieved by the  injunction at all. Responding to the suppliers'  invocation of the contracts clause, the  distributors contend that sec.725/35 does not  change the law of Illinois. According to the  distributors, modification or termination of a  liquor distribution arrangement was unlawful in  Illinois before the 1999 Act in the absence of  good cause even if the contract between supplier  and distributor expressly allows modification or  termination for any reason (or establishes a  dealership at will). This rule may be located, as  the dealers see things, in a general duty of good  faith and fair dealing that Illinois applies to  contracts, and which (they say) sec.725/35 just  instantiates. Like the district court, we doubt  that Illinois has any such rule. See L.A.P.D.,  Inc. v. General Electric Corp., 132 F.3d 402 (7th  Cir. 1997); Echo, Inc. v. Whitson Co., 121 F.3d  1099 (7th Cir. 1997); Digital Equipment Corp. v.  Uniq Digital Technologies, Inc., 73 F.3d 756 (7th  Cir. 1996); Industrial Representatives, Inc. v.  CP Clare Corp., 74 F.3d 128 (7th Cir. 1996);  Continental Bank, N.A. v. Everett, 964 F.2d 701  (7th Cir. 1992); Jespersen v. Minnesota Mining &  Mfg. Co., 183 Ill. 2d 290, 700 N.E.2d 1014  (1998); Hentze v. Unverfehrt, 237 Ill. App. 3d  606, 610-11, 604 N.E.2d 536, 539 (5th Dist.  1992). Still, the distributors are free to file  breach-of-contract actions against their former  suppliers in state court, and if they are right  about the existence and extent of the "good  faith" duty in state law, then they will obtain  the relief they seek independently of sec.725/35.  The injunction against the Commission would not  hamper pursuit of that goal in private contract  litigation. If the distributors are wrong,  however, then it is hard to avoid the district  court's conclusion that sec.725/35 has serious  constitutional problems, because it dramatically  reallocates rights under contracts that predate  the legislation, and again the distributors do  not have much to gain by this appeal.


16
If we err about the extent to which the  Commission has the same freedom as a public  prosecutor, then the distributors have a ready  recourse. They may apply to a state court for an  order compelling the Commission to appeal from  any permanent injunction that the district court  may enter. If the state court issues such an  order (or if the Commission decides on its own to  appeal), then all issues will be presented for  resolution on the merits at the end of the case.  If, however, the Commission again declines to  appeal and the distributors are unable to  persuade a state court to direct it to appeal,  that will demonstrate how similar this situation  is to Diamond. We trust that the district court  will bring the case to a swift conclusion, so  that our inability to resolve the legal questions  on appeal from the preliminary injunction will  not cause undue injury to any affected party.  Because this panel also will hear any appeals  from the final disposition, see Operating  Procedure 6(b), we can expedite ultimate decision  (and the parties could speed things up a bit more  by relying on the legal arguments in the briefs  that they have already filed).


17
The appeals are dismissed.

