Costco

In this appeal, we consider the circumstances in which an intervenor may be held liable for attorney’s fees and costs under 42 U.S.C. § 1988 (b) and 15 U.S.C. § 26 . Costco Wholesale Corporation (Costco) brought claims against the Washington State Liquor Control Board and certain state officials (collectively, State Defendants), contending that several of Washington’s liquor laws violate the Commerce Clause and federal antitrust law. Intervenor-Appellee Washington Beer and Wine Wholesalers Association (WBWWA) materially assisted the State Defendants throughout the litigation, and its members had much at stake financially because of Costco’s claims. The district court ruled in favor of Costco on the majority of the claims, but held that only the State Defendants were liable for attorney’s fees and costs under § 1988(b) and § 26. Costco challenges the district court’s decision not to impose joint and several liability for those expenses on WBWWA. We affirm on the question of WBWWA’s liability under § 1988(b), but vacate and remand with respect to § 26.

I. BACKGROUND

Washington regulates the sale and distribution of alcoholic beverages through a three-tiered system that strictly…