The 8th Circuit upeld a district court’s dismissal of a lawsuit challenging the ABInbev merger. The district court had dismissed the case on the pleadings. The 8th Circuit decision upheld the dismissal and serves as a refresher of the chronology of the takeover. Among other things, the plaintiffs lost their attempt to make Carlos Brito and other senior ABI management undergo depositions.
Posted October 27, 2010 by davetate under Alcohol Review
The Supreme Court has denied the appeal filed by ACLU that sought to keep alcohol advertising in college newspaper throughout Virginia.
(EARLIER POST)
The Virginia Chapter is seeking to have the Supreme Court review the decision of the 4th Circuit to uphold Virginia’s law on the ban of alcohol advertising in college newspapers. It its cert petition the ACLU argues that the 4th Circuit misapplied the Supreme Court precedent on First Amendment matters.
(EARLIER POST)
A divided panel for the 4th Circuit affirmed Virginia’s ban on alcohol advertising in college newspapers stating the ban did not violate the free-speech rights of Virginia Tech’s Collegiate Times and the University of Virginia’s Cavalier Daily. Read the decision here.
Posted October 1, 2010 by admin under Alcohol Review
In this case, the South Carolina Supreme Court ruled that retailers of alcohol are liable for damages incurred by patrons who end up hurting others in car accidents. Read the opinion here.
Posted July 30, 2010 by davetate under Alcohol Review
The Michigan courts have clearly held that anyone wanting to sell alcohol in Michigan has to abide by Michigan law.
In a very strongly worded opinion, a Michigan State Court has upheld the decisions of the Michigan Liquor Control Commission finding that the proposed MillerCoors contract violated several aspects of Michigan alcohol law. In his opinion, Judge James Giddings noted that “MillerCoors claims for itself authority which it may not properly exercise and rights to which it is not entitled.” The court upheld all of the MLCC decision against five areas of the MillerCoors contract.
In very strong language the court chided MillerCoors intrepretation of administrative law and the role of declaratory judgements.
It noted that MillerCoors interpretation of the law would “leave it up to the ’aggrieved wholesaler’ to institgate litigation to challenge contract provisions which contravene the liquor control statutes. It’s difficult to conceive of a more wasteful and expensive way to determine the validity of these contract provisions.”
Other states have also pointed out that a standard operating contract has to be adjusted to comply with state law. It is unknown at this time whether MillerCoors will appeal this further.
Posted July 1, 2010 by davetate under 21st Amendment, Alcohol Regulation, Alcohol Review
The sponsors of H.R. 5034 have announced they plan to amend their legislation. This legislation will be a more limited version and can be found here. A section by section analysis of this bill is here.
H.R. 5034, “The Comprehensive Alcohol Regulatory Effectiveness Act of 2010” or “CARE Act,” was introduced in the U.S. House of Representatives by Rep. Bill Delahunt (D-MA), Rep. Howard Coble (R-NC), Rep. Mike Quigley (D-IL) and Rep. Jason Chaffetz (R-UT).
The CARE Act aims to clarify congressional intent that states have primary authority to regulate alcohol; prevent the additional erosion of state-based alcohol regulation through the expansion of the Granholm v. Heald decision, but not allow facial discrimination against out-of-state alcohol producers; and clarify that state alcohol laws are presumed to be valid and that plaintiffs should have the burden of proof.
“It’s encouraging that Congress has taken an interest in addressing issues related to alcohol deregulation and the problems resulting from continuing litigation against the states,” said National Beer Wholesalers Association President Craig Purser.
“More than 25 states have faced challenges to their authority to regulate alcohol and their ability to maintain a licensed system of alcohol controls,” Purser continued. “With the CARE Act, Congress is taking an important step toward preventing the erosion of the states’ ability to regulate alcohol by clarifying its intent that states have the primary authority to regulate alcohol and reaffirming its commitment to effective state-based regulation which promotes responsible consumption and maintains an orderly market.
A link to the bill can be found at www.thomas.gov by clicking “bill number” and typing H.R. 5034.
A section by section analysis of the actual language of the bill can be found by clicking here.
Tags: alcohol, CARE Act, Craig Purser, H.R. 5034, NBWA, protect state rights, The Comprehensive Alcohol Regulatory Effectiveness Act of 2010
Posted April 26, 2010 by davetate under 21st Amendment, Alcohol Review, Dormant Commerce Clause
UPDATE…….. ARIZONA WINS
The 9th Circuit has issued a ruling. The state of Arizona wins, volume caps and face to face purchase requirements are permissible. Read the ruling here.
(OLDER POST)
On September 15th, the 9th Circuit heard oral arguments of a wineries appeal of an Arizona district court’s decision upholding the state’s winery laws. Click here if you would like to hear the oral argument while you eat lunch at your desk. It appears one of the judges is not all with the state, one is silent and one is mixed. Should be interesting.
As you may recall the district court ruled on this matter in February 2008. The decision in Black Star Farms v. Oliver was a favorable ruling for the states. It had good Granholm flag waiving and more importantly, placed the burden properly on the plaintiffs, not the defendants. Also, it does not take the plaintiff’s bait of alleging hometown favoritism just because there are more wineries out of state: “The mere fact that more out-of-state wineries than in-state wineries are required to adhere to Arizona’s three-tiered distribution system is not by itself sufficient to establish that Arizona’s statutory scheme is patently discriminatory in effect against interstate commerce.”
Professor Tanford has filed an appeal to the 9th Circuit from his loss in the Arizona winery case, Black Star Farms, L.L.C. v. Oliver, 544 F.Supp.2d 913 (D. Ariz. 2008). The opinion of the district court (PDF) noted that the challenge by Professor Tanford was trying to extract an unattainable perfection out of a regulatory system that is going to vary state by state; “Nothing in Granholm suggests that the Supreme Court was concerned about equalizing the inherent marketing advantage that accrues to in-state wineries because of their close proximity to a state’s consumers.”
Posted April 13, 2010 by admin under 21st Amendment, Alcohol Regulation, Alcohol Review, Dormant Commerce Clause
AGs from 39 states have signed a letter written to the Honorable Hank Johnston, who chairs a House Judiciary subcommittee on Courts and Competition Policy. The letter seeks help “with the growing threat facing our states from unprecedented legal challenges that seek to eliminate our ability to regulate alcohol.” Read the letter here.
Posted April 13, 2010 by admin under Alcohol Review
In a very forceful advisory, the California Attorney General has made it clear that California law does not allow suppliers to micromanage and control distributor licensees. This guidance apparently went to over 600 importers and suppliers.
The staff of the attorney general actually spent time reviewing the proposed supplier contracts to state law and were very concerned about the approach by the suppliers. These contracts that were unilaterally imposed by suppliers on distrtibutors contained a wide variety of impermissible intrsusions into the beer distributors license.
“Licensure is the foundation of California’s regulatoory system of alcoholic beverages. and is fundamental to the State’s control under Section 2 of the Twenty-First Amendment and Section 22 of Article XX of the California Constitution.”
It further held; “We consider any attempt to enforce the provisions of these contracts to be an unlawful, prohibited exercise of control by a manufacturer over an independently licensed wholesaler.”
Several states including Michigan and Georgia have already pointed out how a proposed supplier contract violate state laws. I expect many more states to utilize the guidance of the California Attorney General in their states in the weeks ahead.
Posted February 15, 2010 by admin under 21st Amendment, Alcohol Regulation, Alcohol Review, Guest Columns
Iowa has recently joined the ranks of states having a federal court determining the future of its state alcohol laws. Indiana University Professor James Tanford has filed another Dormant Commerce Clause lawsuit this one challenging provisions in the Iowa alcohol code dealing with reciprocity for direct shipping. A copy of this lawsuit can be found here. By my rusty calculations this is state number 27 to be have its alcohol laws challenged in federal court in the past five years.
Posted January 21, 2010 by admin under 21st Amendment, Alcohol Review, Dormant Commerce Clause
The First Circuit dealt a blow to state alcohol regulation today ruling against Massachusett’s 30,000 gallon volume cap for wineries. In its opinion, the 1st Circuit determined that the MA law, helped by statements in the legislative record, was discriminatory in both purpose and effects and violated the Dormant Commerce Clause. This is a different conclusion that federal district courts in Kentucky (Cherry Hill) and Arizona (Blackstar) (See below). The 9th Circuit is currently examining Arizona’s volume cap. Since distinctions based on size are throughout nearly every state alcohol code at some level, this case could have huge implications.
Posted January 14, 2010 by admin under 21st Amendment, Dormant Commerce Clause, Supreme Court