Supreme Court Denies Review of Lebamoff Challenge to Michigan Retail Delivery Laws

The Supreme Court issued an order today denying certiorari in hundreds of cases.    The Lebamoff appeal of their loss at the 6th Circuit was one of the cases on today’s order list.

This order ends this case but the same law firm has cases pending in the 8th and 9th circuits with seven other cases at the district court level as part of their continued personal quest to reach the Supreme Court.

(previous post) Supreme Court Briefing Complete for Challenge to Michigan’s Retail Shipping Regulations

The final reply brief has been filed by Lebamoff Enterprises in their attempt to ship alcohol from Indiana to Michigan residents.  The petition of certiorari seeks to overturn the 6th Circuit’s decision upholding the Michigan law.

The brief argues that there are circuit splits the court needs to address, that the 6th Circuit ignores previous Supreme Court rulings, and that the court should shortcut review and just clarify things for the appellant now by taking this case.

Interestingly, the appellant appears to be backing off its apparent position that there is a form of strict scrutiny for any state alcohol law as being suspected as protectionist.  It recognizes the need for a “different” standard for state alcohol law review but is still not clear on what appellant would have the court do in a standard alcohol law case.

I also found quite ironic the brief’s claim that “the Sixth Circuit’s decision has sown confusion in the lower courts, where seven similar cases are pending.”  But it fails to note that six of those cases are cases this same lawyer brought and the seventh case cited is an unrelated case dealing with the 21st Amendment Enforcement Act.  Nevertheless, I would argue that those other cases will need to percolate through the federal court system and the court could consider one of them in a few years if appellant’s fears are correct.

The Court will consider this petition at its conference on December 11th so we should know whether this case is going to the Supreme Court by the end of 2020.

(previous post) Briefs In Opposition to Lebamoff Cert Petition Filed

The state of Michigan and the Michigan Beer and Wine Wholesalers Association have filed their briefs in opposition to the effort by Lebamoff Enterprises to have the Supreme Court grant cert to overturn the ruling of the 6th Circuit.

It is brief in opposition, Michigan hammers its view that there is no circuit court conflict and that any conflict is “illusory.”  It also notes that the 6th Circuit faithfully followed the instructions of the 2019 Tennessee Wine Retailers Association case.   In its limited page limits, Michigan did not delve into the facts of this case which distinguish it from the Tennessee Wine Retailers Association case.

The Michigan wholesaler brief likewise notes the lack of circuit split and that the 6th Circuit followed the rule set out last year by the Supreme Court. It noted that the cases cited for circuit splits are prior to the Tennessee Wine Retailers Association case and there have been none since then.  It suggested that even if there were circuit conflicts to develop, the court should let them “percolate” rather than re-examine an issue they already considered just last year.

Both briefs urged the court to deny the petition.

Lebamoff has roughly three weeks to file its reply brief and presumably this case will be scheduled for conference to vote on granting or denying the petition in December or early January.

(previous post) Supreme Court Asks Michigan to Respond to 6th Circuit Cert Petition

The Supreme Court has asked the state of Michigan and the intervening Michigan Beer and Wine Wholesalers Association to respond to the cert petition in the Lebamoff v. Michigan matter.    A response is due October 9.

It is hard to read much into this news since it only takes one justice to request a response.  It takes the votes of four justices to grant certiorari.  A conference date for that decision will presumably be later in the fall.

(previous post) Lebamoff’s Cert Petition to Be Considered By Court on September 29. Petition Supporting Cert Filed By Oenophiles

(updated)   The National Association of Wine Retailers has also submitted an amicus brief in support of Lebamoff’s petition for writ of certiorari.

The Supreme Court has scheduled consideration of Lebamoff Enterprises’ petition for writ of certiorari to overturn the 6th Circuit’s ruling for Michigan for their September 29th conference.

Joining Lebamoff was a brief in support of the petition filed by 23 “wine consumers” several of which are plaintiffs in lawsuits filed by petitioner’s counsel in other states.   This petition jumps between chastising the Sixth Circuit and other courts for “ignorning” Supreme Court jurisprudence on the dormant Commerce Clause while also claiming that the COVID pandemic mandates the relief to alcohol regulation these “consumers” desire.

(earlier post) Lebamoff Petitions for United States Supreme Court Review of 6th Circuit Decision. Michigan Waives Response.

Lebamoff Enterprises has filed its petition for writ of certiorari seeking the review by the United States Supreme Court for its dormant Commerce Clause challenge to Michigan’s laws on alcohol retailing.   The 6th Circuit had recently ruled for Michigan.

The petitioner’s brief claims that the Sixth Circuit’s decision to uphold the Michigan liquor law under the Twenty-first Amendment conflicts with decisions from other circuits. In the alternative, the brief claims that the Sixth Circuit’s decision that the Twenty first Amendment “allows states to enact discriminatory liquor laws so significantly departs from this Court’s prior rulings that it would call for an exercise of the Court’s supervisory power even if no Circuit split existed.

The Petitioner argues that the Supreme Court requires strict scrutiny and that the state has not met is burden here on its alcohol laws and regulations.  It calls for the court to take case and provide clarity for this case and eight other pieces of related litigation in lower courts.

Since Lebamoff’s filing, both respondents (the state of Michigan and the Michigan Beer & Wine Wholesalers Association)  have waived their right to respond to the petition.  It is unknown when the Supreme Court will consider taking this case.

The Court’s term is over and they will resume consideration of taking cases when they return in September.

(previous post 6th Circuit Denies Rehearing in Michigan Retail Shipping Case

The 6th Circuit has denied the request for a rehearing en banc on the decision upholding Michigan’s law banning out of state retailer direct shipping.  The order noted, “No judge has requested a vote on the suggestion for rehearing en banc.”

At this time, it is unknown if there will be an appeal to the United States Supreme Court.

(previous post) –  6th Circuit Rules for Michigan in Alcohol Retail Direct Shipping Challenge

The 6th Circuit held oral arguments in March and less than five weeks later has ruled for the state of Michigan beating back a challenge by an Indiana retailer seeking to sell alcohol to Michigan consumers.

The opinion was authored by Judge Sutton and there was a concurring opinion by Judge McKeague.   The decision recognizes the importance of physical presence with retail sales and the strong record put forward by Michigan to defend its law.

Judge Sutton saw through the intent of this lawsuit and what a ruling for plaintiff would mean.  In reviewing other cases upholding similar state laws he noted, “As these opinions suggest, there is nothing unusual about the three-tier system, about prohibiting direct deliveries from out of state to avoid it, or about allowing in-state retailers to deliver alcohol within the State. Opening up the State to direct deliveries from out-of-state retailers necessarily means opening it up to alcohol that passes through out-of-state wholesalers or for that matter no wholesaler at all. See Arnold’s Wines, 571 F.3d at 185 n.3. That effectively eliminates the role of Michigan’s wholesalers. If successful, Lebamoff’s challenge would create a sizeable hole in the three-tier system.”

This opinion is a strong opinion for the state right to regulate alcohol and the importance of the three-tier system.  It notes the importance of in state wholesalers and that efforts to go around them, while potentially creating short term economic efficient arguments, raise real life concerns for the state.

There remain a half dozen similar lawsuits perculating through the federal court system on the same claims from this law firm.

(previous post) Oral Argument Held on Dormant Commerce Clause Challenge to Michigan Retailer Shipping Law

The 6th Circuit met in Cincinnati to hear oral arguments on the challenge to Michigan’s retail shipping laws.

The judges for this panel were Circuit Judges Bernice Donald, David McKeague, and Jeffrey Sutton.

Predicting who won oral arguments is inevitably a fool’s errand and I won’t offer a prediction here.  The Judges asked tough questions of all lawyers and raised new lines of questions that have not been featured in other cases.

Here is a link to the oral argument for your social distancing listening pleasure.

(earlier post)  Briefing Complete for 6th Circuit in Challenge to Michigan Retail Shipping Laws

Briefing is complete in the 6th Circuit and the parties will await oral argument scheduling by the court presumably in the first quarter of 2020. Recall the district court struck Michigan’s law related to out of state retailer sales as a violation of the dormant commerce clause.

The state of Michigan has filed its reply brief as has intervenor Michigan Beer and Wine Wholesaler Association.   Michigan’s appellant brief can be found here and the intervenor’s brief here.

Amicus briefs were filed in support of the state by the Center for Alcohol Policy along with the Michigan Alcohol Policy Promoting Health and Safety and also a brief by American Beverage Licensees/ Wine and Spirits Wholesalers of America.

In addition to the brief of the Plaintiff-Appellee Lebamoff Enterprises, there were amicus briefs in support filed by the National Association of Wine Retailers and the American Trucking Association .

There will presumably be a race with the pending 8th Circuit appeal to see which case is argued and decided first in 2020.  The 5th Circuit’s ruling for Texas against a Walmart challenge already won the crown for first place in deciding a dormant commerce clause case after the Supreme Court’s June decision in Tennessee Wine Retailers Association which upheld the 6th Circuit.

(previous post) Michigan Court Enters Stay of Retail Shipping Order Pending Supreme Court Review of TN Case

Because of the pending Supreme Court review of the Byrd v. TN Retailers Association matter, Judge Tarnow granted the state of Michigan’s motion and has issued a stay of his injunction against the Michigan retail shipping law.   In acknowledging the pending Supreme Court matter, the judge noted:

“The Court is aware that legislative efforts to bring Michigan into compliance with the injunction may need to be duplicated after the Supreme Court’s ruling on Byrd, and that an environment of legal uncertainty is not ideal for well-reasoned lawmaking.”

(previous post) Michigan District Court Rules for Out of State Retailer

Senior United States District Court Judge Arthur J. Tarnow sitting in the Eastern District of Michigan ruled against the state and for out of state retailer Lebamoff Enterprises on the dormant Commerce Clause challenge to Michigan’s alcohol laws limiting store delivery to consumers to Michigan Retailers.   In his Order and Opinion Judge Tarnow noted how he was bound by the recent 6th Circuit ruling in Tennessee Retailers v. Byrd.  Michigan is within the 6th Circuit as is Ohio, Kentucky and Tennessee.   As readers will recall the Supreme Court agreed to hear the TN Retailers case last week so the Supreme Court ruling will directly impact the next steps of Michigan law on this matter.   All eyes will be on the Supreme Court.


  1. Another three-tier circus. Time for change.Oh when will they ever learn? Dream On.


  1. […] opinion for the state right to regulate alcohol and the importance of the three-tier system,” per the NBWA’s Alcohol Law Review blog. “It notes the importance of in state wholesalers and that […]

Leave a Reply