Briefing Complete in 3rd Circuit for Out of State Retailer Challenge to NJ Delivery Law.

Briefing has been completed for the 3rd Circuit on the appeal by an out of state retailer to their loss at the district court level alleging that NJ law violates the dormant commerce clause because it does not allow out of state retailers to do things that NJ retailers may be able to do.

The appellant has filed its opening brief and later its response brief. The state of New Jersey has filed its brief. Intervening Defendants Allied and Opici have filed their brief as well as another intervening defendant Fedway has filed their brief.

Amicus briefs were filed by the National Beer Wholesalers Association as well as a brief filed by American Beverage Licensees and the Wine and Spirits Wholesalers of America.

The Appellants have shifted their arguments to a frontal attack on physical presence laws while Defendants and Amici have pointed out the illogic of this attack compared to previous Supreme Court precedent upholding the three tier system.

Oral arguments are expected to take place after Labor Day.

(previous post) Federal Court Rules for New Jersey in Retail Shipping Case

Another win for the states, this time in New Jersey. New Jersey District Judge Julien Xavier Neals has ruled for the state on dualing summary judgment motions. The decision can be found here.

Judge Neals reviewed the claims and ultimately held for the state. Judge examined the flaws in the attacks on the New Jersey system and noted:

The New Jersey System does not have different licenses for in-state vs out-ofstate wine retailers. Both are eligible for plenary retail licenses. Indeed, all potential licensees must satisfy the same requirements, obtain the same licenses, and be subject to the same inspections, audits, and investigations. In-state wine retailers are not provided special treatment or exemptions from certain aspects of the New Jersey System. Therefore, the State of New Jersey’s goal of “protecting public health and safety” is indeed “achieved through the alternative of an evenhanded licensing requirement” because
both in-state and out-of-state wine retailers are subject to the same procedures and requirements to sell wine to New Jersey consumers

Judge Neals noted the importance of the Garden State’s physical presence requirements in order to effectuate the regulatory scheme. He further highlights the red herring of the plaintiffs attempts to compare out of state winery rights with out of state retailer rights. “Because the Court must decide whether the New Jersey System treats in-state and out-of-state wine retailers the same and not whether the New Jersey System treats out-of-state wine producers and out-of-state wine retailers the same, N.J.S.A. 33:1-10(2e) does not trigger a dormant Commerce Clause violation.

As the attorneys for the Plaintiffs have sought to get in front of the Supreme Court from any of their multiple lawsuits, it is expected that there will be an appeal to the Third Circuit.

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