
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1017                                    BRIGGS, INC.,                                Plaintiff, Appellant,                                          v.                             MARTLET IMPORTING CO., INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                   [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Joel A.  Dearborn with  whom Laurie Anne  Miller was on  brief for            _________________            ___________________        appellant.            David R. Cross with whom James  Brennan and John W.  McCarthy were            ______________           ______________     _________________        on brief for appellee.                                 ____________________                                    June 14, 1995                                 ____________________               COFFIN, Senior  Circuit Judge.  This is  a removed diversity                       _____________________          action in which  appellant, Briggs, Inc., a  Maine wholesale beer          distributor, sued  Martlet Importing Co., a  subsidiary of Molson          Breweries U.S.A., seeking injunctive relief and monetary damages.          Briggs  claims  that  Martlet  wrongfully  gave  another  company          exclusive rights to distribute  a new malt beverage, Molson  Ice,          in  the   "Bangor  Market,"   where  Briggs  had   the  exclusive          distribution  rights   for  all  other  Molson   products.    The          magistrate judge  hearing the  case granted summary  judgment for          Martlet.  We affirm.               In 1975, Martlet designated Briggs as its distributor in the          Bangor area for two of its products, Molson Ale and Molson  Beer,          and later added  a third,  Molson Golden.   There was no  written          instrument other  than the  designation of area  distributors and          products which  Molson filed with  the Maine Bureau  of Alcoholic          Beverages.  The contract between Briggs and Martlet was oral and,          under existing Maine law, terminable-at-will.               In  1979,  the  Certificate  of Approval  Holder  and  Maine          Wholesale Licensee  Agreement Act (the Act), Me.  Rev. Stat. Ann.          tit.  28-A,     1451-1465, was  enacted.   This legislation  gave          protection to  local wholesale  distributors from termination  by          their suppliers ("certificate of approval holders"); not only was          reasonable notice  required, section  1455, but "good  cause" was          made a prerequisite,  section 1454.   After passage  of the  Act,          Martlet  designated Briggs  its  distributor for  four more  malt          beverage  items, Molson  Light, Molson  Brador, Molson  Exel, and                                         -2-          Molson  Special   Dry.     Then   in  1993,   Martlet  gave   the          distributorship  for  a  new  product,  Molson  Ice,  to  another          distributor serving the same area.               The magistrate judge conducted  a hearing in connection with          a requested temporary restraining order, received depositions and          affidavits, and  finally granted  summary  judgment for  Martlet.          The court  based its decision on the contract clauses of the U.S.          Constitution, Art. I,    10, cl. 1, and of  the Maine Declaration          of  Rights,  Art.  I,     11,  holding  that  to  apply  the  Act          retroactively to  the earlier oral agreement  between Martlet and          Briggs would substantially impair Martlet's understanding that it          could terminate at will.  It also held that no sufficient  public          purpose would  be served.   Finally,  it held  that there was  no          breach of good faith and  fair dealing, as alleged in an  amended          complaint.               We do not  reach the contract  clauses issue, preferring  to          dispose  of  this case  on  the  non-constitutional ground  that,          whether or not  the Act has retroactive  application, Martlet was          not obligated under it  to assign the distributorship of  its new          Molson Ice to Briggs.  This is so because that beverage was a new          and  separate "brand"  within the  meaning of  the Act,  and thus          properly  was   the  subject   of  an   independent  distribution          agreement.    Briggs  argues  that  the  Act  bars  Martlet  from          assigning  Molson  Ice   to  another  distributor  because   this                                         -3-          constitutes  a  dual  distributorship, in  violation  of  section          1453.1   This  conclusion follows  from Briggs'  theory that  all          Molson  products  comprise a  single "brand."    See App.  at 349                                                           ___          (Testimony  of  Allison  Briggs,  chairman of  the  board,  that:          "Molson is  the brand  and Ice  is an  extension of  the Molson's          brand.").  Because the Act does not permit a  manufacturer to use          multiple distributors  for a single brand,  Briggs concludes that          it must serve as distributor for all Molson products.               In support  of its  conclusion, Briggs  argues that  the Act          does not define "brand" or "label" and that these terms should be          given their ordinary  definition.  As it  happens, however, there          seems  to be no single,  all purpose definition.   Indeed, Briggs          cites a Dictionary of  Marketing Terms by Peter D. Bennett to the                  ______________________________          effect that "A brand may identify one item, a family of items, or          all  items of [a] seller."  While such a multiplicity of possible          meanings might in other  circumstances preclude summary judgment,          we are  not  dealing here  with  a word  in  vacuo but  with  its                                                   __  _____                                        ____________________               1The magistrate judge found it unnecessary to decide whether          the original agreement between Briggs and Martlet encompassed all          Molson products to be distributed in the Bangor market or whether          separate agreements were made as each new product was introduced.          Although Briggs'  chairman of the  board testified that  the 1975          agreement  obligated   Martlet   to  designate   Briggs  as   its          distributor for all  new Molson products, Briggs' brief on appeal          does not contain  this contention.   We note,  in addition,  that          Briggs' complaint does not contain a breach of contract count.               These omissions  are  entirely  understandable.    The  only          evidence offered  to support a comprehensive contract is the fact          that  Martlet  originally  assigned some  distribution  rights to          Briggs.  See App. at 346-47, 349-50.  The idea that a terminable-                   ___          at-will  contract   for  individual   products  could   imply  an          enforceable obligation  to grant future  distributorships, to say          the least, does not carry conviction.                                         -4-          specific   use  in  a  statute  that  has  for  many  years  been          interpreted adversely to Briggs' view.               The statutory language  strongly suggests  the more  limited          "one  item" meaning  of brand.   Section  1451 (and  also section          1452(1)(C))  speaks  of an  agreement  between  a certificate  of          approval holder  and a wholesale licensee  authorizing the latter          "to  distribute  one  or  more  of the  certificate  of  approval          holder's  brands  of  malt  liquor."    (Emphasis  added.)    The                    ______          assumption appears to  be that a certificate  holder has multiple          "brands,"  or "kinds,"  of wine  or beer.   Section  1453(1) then          prohibits dual distributorships for individual brands  or labels,          using the singular forms of those words.2  We think it  apparent,          in light  of the  earlier use  of the  plural "brands," that  the          prohibition  in  this section  concerns  discrete  products of  a          manufacturer, and  does not bar multiple  distribution agreements          for  differently  labelled  products of  a  single  manufacturer.          Likewise, the obligation to maintain agreements in the absence of          good  cause for changing or  terminating them must  apply only to          the distribution rights of the individual "brands."               If the  statutory language leaves any  doubt concerning this          interpretation, it is dispelled by the testimony of Lynn Cayford,          Director of Licensing for the Bureau of Liquor Enforcement of the                                        ____________________               2  The  provision  reads  as  follows:  "No  certificate  of          approval  holder who  designates a  sales territory  for which  a          wholesale licensee  is primarily  responsible may enter  into any          agreement with  any other wholesale  licensee for the  purpose of          establishing  an additional agreement  for its brand  or label in          the same territory."                                         -5-          State of Maine for  the past thirteen  years.  He testified  that          the  agency treated "every label  as a separate  brand," and that          this definition of "how we handle brands and how we handle labels          is the same way we've handled them in my twelve years or thirteen          years working there."               Briggs  urges us  to  give  no  deference  to  the  agency's          interpretation  because of the lack  of a definition  in the Act,          the absence  of case law,  and the  fact that Cayford  is not  an          attorney.   This is an original, if  meritless, argument.  As the          Maine Supreme Judicial Court has made clear, "We shall accept the          agency's  construction,  especially  if,  as  here,  it  is  long          established  . .  .  unless it  clearly violates  the legislative          intent."  Bar Harbor  Banking and Trust Co. v.  Superintendent of                    ________________________________      _________________          the Bureau of Consumer Protection, 471 A.2d 292, 296 (Me. 1984).          _________________________________               The conclusory  assertions of Briggs' officers  that "brand"          and  "label"  refer  in this  context  to  all  products using  a          supplier's name do not  create a genuine issue of  material fact.          There  was no  violation  of  the Act,  or,  a fortiori,  of  any                                                       _ ________          obligation of  good faith and fair dealing,  in Martlet's refusal          to give Briggs the distributorship of its new brand, Molson Ice.               Affirmed.               ________                                         -6-
