So, too, have a number of district courts. See Int'l Tobacco Partners, Ltd. v. Kline, 475 F.Supp.2d 1078, 1080, 1086-87 (D.Kan. 2007); Int'l Tobacco Partners, Ltd. v. Beebe, 420 F.Supp.2d 989, 994-97 (W.D.Ark. 2006); Grand River Enters. Six Nations, Ltd. v. Beebe, 418 F.Supp.2d 1082, 1089-91 (W.D.Ark. 2006); Dos Santos v. Beebe, 418 F.Supp.2d 1064, 1071-73 (W.D.Ark. 2006); S M Brands, Inc. v. Summers, 393 F.Supp.2d 604, 629 (M.D.Tenn. 2005) (holding that neither Tennessee's Allocable Share Amendment nor the MSA itself represented a per se violation of the Sherman Act), aff'd, 228 Fed.Appx. 560 (6th Cir. 2007) (unpublished); cf. Grand River Enters. Six Nations, Ltd. v. Pryor, No. 02 Civ.5068, 2006 WL 1517603, at *8-*9 (S.D.N.Y. May 31, 2006) (denying preliminary injunction enjoining application of allocable share amendment in part because there was no likelihood of success, in light of the plaintiffs inability to establish a per se violation of the Sherman Act), aff'd, 481 F.3d 60 (2d Cir. 2007).
Numerous other plaintiffs have brought similar challenges to state statutes passed in conjunction with the multi-state settlement, both in our circuit, see, e.g., Freedom Holdings v. Spitzer, 408 F.3d 112 (2d Cir.2005), and in several of our sister circuits, see, e.g., Tritent Int'l Corp. v. Kentucky, 467 F.3d 547 (6th Cir.2006); Xcaliber Int'l Ltd. v. Ieyoub, 377 F.Supp.2d 567 (E.D.La.2005), rev'd in part on other grounds sub nom. Xcaliber Int'l Ltd. v. Foti, 442 F.3d 233, 235 (5th Cir.2006) (per curiam); Mariana v. Fisher, 226 F.Supp.2d 575 (M.D.Pa.2002), aff'd on other grounds, 338 F.3d 189 (3d Cir.2003); Star Scientific v. Beaks, 278 F.3d 339 (4th Cir.2002); North Am. Trading Co. v. Nat'l Ass'n of Att'ys Gen., (D.D.C. Sept. 18, 2001), aff'd on other grounds, 2002 WL 31667853 (D.C. Cir. Nov. 25, 2002) (unpublished). Moreover, Grand River itself has litigated similar claims in separate lawsuits, see Grand River Enters. Six Nations, Ltd. v. Beebe, 418 F.Supp.2d 1082 (W.D.Ark.2006). Because we affirm the district court on irreparable injury grounds, see infra, we do not here consider whether the doctrine of issue preclusion should apply with respect to the merits of Grand River's claims, either against Grand River or against any of the defendants in this case.
The district court dismissed all of Plaintiff's claims, and the Eighth Circuit affirmed. See Grand River Enters. Six Nations, Ltd. v. Beebe, 418 F.Supp.2d 1082 (W.D.Ark.2006), aff'd, 574 F.3d 929 (8th Cir.2009). The Defendant States argue that the doctrine of collateral estoppel bars Plaintiff from pursuing identical claims in Arkansas and New York.
A recent decision by Chief Judge Jimm Larry Hendren of the United States District Court for the Western District of Arkansas may well bar Grand River's claims in this action under the doctrine of issue preclusion. See Grand River Enterprises Six Nations, Ltd. v. Beebe, 418 F. Supp. 2d 1082 (W.D. Ark. 2006). Even if issue preclusion does not apply, however, the Court finds that Grand River cannot establish a likelihood of success on the merits with respect to either claim.
We decline GRE's request to hold against the overwhelming majority of case law finding escrow fund acts, including Oklahoma's Escrow Statute, to be constitutional under due process analysis.See also S & M Brands, Inc. v. Summers, 393 F. SupP.2d 604, 621–37 (M.D.Tenn.2005) (upholding Tennessee's escrow statute and related tobacco laws against challenges under, among other things, the due process cause), aff'd, S & M Brands, Inc. v. Summers, 228 Fed.Appx. 560 (6th Cir.2007); Grand River Enters. Six Nations, Ltd., 425 F.3d at 175 (2d Cir.2005); Grand River Enters. Six Nations, Ltd. v. Beebe, 418 F. Supp.2d 1082 (W.D.Ark.2006) (finding no violation of the due process clause); PTI, Inc. v. Philip Morris, Inc., 100 F.Supp.2d 1179 (C.D.Cal.2000) (finding no violation of the due process clause). IV. Civil Penalty
We decline GRE's request to hold against the overwhelming majority of case law finding escrow fund acts, including Oklahoma's Escrow Statute, to be constitutional under due process analysis.See also S&M Brands, Inc. v. Summers, 393 F. SupP.2d 604, 621-37 (M.D. Tenn. 2005) (upholding Tennessee's escrow statute and related tobacco laws against challenges under, among other things, the due process cause), aff'd, S&M Brands, Inc. v. Summers, 228 Fed. Appx. 560 (6th Cir. 2007); Grand River Enters. Six Nations, Ltd., 425 F.3d at 175 (2d Cir. 2005); Grand River Enters. Six Nations, Ltd. v. Beebe, 418 F. SupP.2d 1082 (W.D. Ark. 2006) (finding no violation of the due process clause); PTI, Inc. v. Philip Morris, Inc., 100 F. SupP.2d 1179 (C.D. Cal. 2000) (finding no violation of the due process clause). IV. Civil Penalty
Other states have overwhelmingly held that state escrow fund statutes do not violate either their respective state or the federal constitutions. SeeStarScientific v. Beales, 278 F.3d 339, 351-52 (4th Cir. 2002) (finding no violation of Due Process or Equal Protection Clauses); Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 175 (2d Cir. 2005) (holding that the escrow statute did not deprive non-participating members equal protection of the law because the statute is rationally related to legitimate state interests, including promotion of health and recovery of costs for tobacco-related illnesses); Grand River Enters. Six Nations,Ltd. v. Beebe, 418 F.Supp. 2d 1082 (W.D. Ark. 2006) (finding no violation of Due Process or Equal Protection Clauses); Xcaliber Int'l Ltd., LLC v. Kline, No. 05-2261-JWL, 2006 WL 288705 (D. Kan. Feb. 7, 2006) (finding no violation of Due Process clause); K T G Corp. v. Attorney General of the Stateof Okla., 535 F.3d 1114 (10th Cir. 2008) (finding no violation of Due Process or Equal Protection Clauses); PTI, Inc. v. PhilipMorris, Inc., 100 F. Supp. 2d 1179 (C.D. Cal. 2000) (finding no violation of Due Process or Equal Protection Clauses).