2020 Alcohol Litigation Cases in Review: No New Supreme Court Case (Yet) and a Narrowing of the Battlefield

2020 was another very busy year for alcohol litigation.  At this time in January 2020, I noted the possibility of seven cases being presented to the Supreme Court for their consideration in 2020.  With the 2019 Tennessee Wine & Spirits Retailers Association decision fresh in mind, it was unknown if the court was going to entertain a slew of related and unrelated challenges to state alcohol laws or would the Supreme Court wait for another fourteen year stretch as it did between the 2005 Granholm decision and the 2019 Tennessee Wine decision.

As I sit here in January 2021, we can say the Supreme Court has declined many opportunities to immediately jump back into the state alcohol laws swimming pool for now, but it is too early to tell how long they will sit out cases involving challenges to state alcohol laws.

What is clear for the Supreme Court level is that the playing field has been greatly reduced.   Legal challenges to state alcohol laws involving the Sherman Antitrust Act, transportation preemption, the First Amendment, long arm jurisdiction, and challenges to public ownership of liquor stores were not granted certiorari by the Supreme Court or were not ultimately appealed to the Supreme Court thus ending these particular challenges to state law.  Although not a challenge to state alcohol laws, the Supreme Court even passed on the City Beverage v. Monster arbitration matter out of the 9th Circuit which was of great interest to many beer distributors.

Although these avenues of attack against state laws are at an end with these plaintiffs and facts, new lawsuits under the previous theories can start the process all over again, but none will be at the Supreme Court’s doorsteps in 2021.  What stands before the Supreme Court now, and presumably into next year, are additional dormant Commerce Clause challenges related to out of state retail entities.  The raw volume of these cases, brought by the same plaintiff attorneys, will continue to keep the courts busy.

First up is the challenge to the Michigan law.  The Supreme Court will meet on Friday to decide whether to take up this case where the 6th Circuit upheld the Michigan law.  The public should find out this Friday or next Monday where the Supreme Court is headed with this appeal. 

However, the plaintiff’s attorneys also have cases pending in the 8th and 9th Circuits under similar theories and at least seven cases at the district court level to refill their appellate briefing machines for 2022 and beyond. The 8th Circuit can rule on its case any day now and oral arguments are pending in the 9th Circuit on the issue of standing.

The state attorneys general will work to shoot down these multiple lawsuits and hope their counterparts are successful as well. On the other hand, the plaintiffs’ attorneys seek to get one through and create a circuit court split to augment their certiorari petitions to the Supreme Court. The fact that there are so many other challenges pending may be the single most compelling reason why the Supreme Court might not grant cert soon. It may want to see how all these other lower courts deal with the issues first.

The graphic below is an oversimplified version of the state of play for alcohol litigation against the states.  While the top of the pyramid is the most powerful, many of the cases have not been appealed to the Supreme Court or have been rejected for consideration by the Supreme Court.  The cases remaining in the pyramid are overwhelmingly dormant Commerce Clause cases seeking an expansion of the 2019 Supreme Court decision. 

2020 was the most active year for this website and the volume of these pending dormant Commerce Clause challenges will likely make 2021 another busy year.  Happy New Year.

Case snapshot January 2021.

Leave a Reply

*