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21st Amendment Litigation 2013: Commerce Clause, Antitrust, and More

21st Amendment Litigation 2013: Commerce Clause, Antitrust, and More. Deborah A. Skakel, Esq. Dickstein Shapiro LLP Steve Gross Wine Institute Walter A. Marston, Jr., Esq. Marston & McNally, P.C.

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21st Amendment Litigation 2013: Commerce Clause, Antitrust, and More

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  1. 21st Amendment Litigation 2013: Commerce Clause, Antitrust, and More Deborah A. Skakel, Esq. Dickstein Shapiro LLP Steve Gross Wine Institute Walter A. Marston, Jr., Esq. Marston & McNally, P.C. NABCA 20th Annual Legal Symposium on Alcohol Beverage Law & Regulation March 12, 2013

  2. A very brief refresher on Granholm…. • “Pure” Granholm • Producer to consumer direct shipping • Facially discriminatory statutes • Facially Neutral Statutes • Gallonage caps • On premise/In person requirement • Retail to Consumer (“Retail Direct”) • Applicability of Granholm • Second vs. Fifth Circuits

  3. Residency Requirement Challenge • Prior Cases in Texas and Kansas • Missouri: SWS Litigation Plus • Applicability of Granholm • Amici include Missouri Beverage and State AGs • “Related” litigation: Pernod v. Major Brands & Glazer’s • Recent legislation: S365 (community of interest concept) • Indiana: SWS Litigation Plus • SWS litigation leads to AG Opinion and ATC change of position • Recent legislation: H1259 (increase duration from 5 to 6 years) • Tennessee AG Opinion No. 12-59 (6/16/2012)

  4. Sales in Grocery & Convenience Stores • Maxwell’s Pic-Pac Kentucky Litigation • Equal Protection, not Granholm/Commerce Clause • Legislative Initiatives • Kentucky H310 (separate package store license; separate entrance for premises required; grandfathering) • Tennessee S837/H610 (allows towns to hold referendums) • Oklahoma (2012’s Initiative Petition No. 396 withdrawn; petition to be refiled in Fall 2013 for Fall 2014 General Election) • Kansas, Colorado, New York, Maryland, and New Jersey Legislation

  5. Developments in Third-Party Provider Area • California’s 2011 Industry Advisory: Status • Virginia Fulfillment Warehouse Regs • Legislative Initiatives • North Dakota – S 2147 (allows use of fulfillment houses in wine direct shipping law) • Maryland – H 1420 & S 990 (“prohibiting an order to be transmitted to the permit holder by a retailer, a wholesaler, or any other third party, including a marketplace site on the Internet in which sellers offer products to customers”) • Nebraska – L 230 (limit sales to manufacturers (“person”) attempting to block some portal programs) • New York SLA 1/17/2013 Hearing • Amazon: Business model now used in 15 States and DC

  6. Post and Hold/Quantity Discount • Summary of Cases • Battipaglia (2d Cir. 1984) • Costco (9th Cir. 2008) • TFWS (4th Cir. 2009) • District Court decisions in Massachusetts (1998) and Pennsylvania (1999) • Legislative Initiatives • Connecticut – S749 (elimination of 10% minimum markup) • Interplay Between Quantity Discounts & Cooperative Buying • Washington • New York • Enforcement • NY SLA December 2012 historic wholesaler license suspension

  7. Unorthodox Use of Preemption Argument • Miller Coors v. Chesbay Dist. litigation: Short-lived, but results in legislation in Virginia • Recent SCOTUS preemption cases (non-21st Amendment): Court appears reluctant to expand Commerce Clause

  8. On The Horizon • Developments re: craft brewers and artisan distillers • New York’s first “Wine, Beer and Spirits Summit”: “Regulatory reforms” • VA Winery Distribution Co. • Use of gallonage cap concept outside direct shipping (tax structure (NM), franchise law applicability (MI), and grocery store sale privilege (AR)) • Further consolidation • A-B In Bev merger, DOJ action, and proposed resolution • Direct shipment data: Lessons learned • MD Comptroller December 2012 “Study on the Impact of Direct Wine Shipment” • VA direct shipment data

  9. VIRGINIA DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROLDATA ON WINE IMPORTERS AND WINE SHIPPERS

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