No rehearing for 6th Circuit out-of-state retailer alcoholic beverage shipping case. Other Federal Appellate Court Circuit cases continue.

BY ASHLEY BRANDT · MAY 28, 2020

There are similar suits winding their way through different District and Appellate Courts at present. Quite a few, in fact. While the District Court cases appear to have stalled until consensus builds on how to progress discovery during the COVID-19 crisis, the Appellate Court cases at the 9th, 8th and 6th Circuits are starting up and winding down on an expected timeline.

The 6th Circuit matter that did not follow Tennessee Wine precedent by remanding the case to the lower court for further proceedings looking for evidence of the State’s proffered health and safety claims had its last 6th Circuit sigh as the Court has denied the request for rehearing en banc:

“The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the cases. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc. Therefore, the petition is denied.”

So, petition for cert it is, then…?

The two other cases?

In the 8th Circuit – Sarasota Wine Market LLC dba Magnum Wine and Tastings v. Schmitt (19-1948) – (you can find the briefs from the case here) a case dismissed by the District Court before Tennessee Wine was decided – involves a group of connoisseurs and out-of-state alcohol retailers (wine shops and a wine broker) that brought suit arguing that Missouri’s laws allowing in-state alcoholic beverage retailers to deliver directly or by common carrier to consumers (craft beer, wine and spirits) while prohibiting out-of-state retailers from doing the same violates the Commerce Clause. No oral argument has been set, but briefing is finished and Missouri submitted a letter to the Court recently providing the 6th Circuit Lebamoff case as supplemental authority. Oddly, the letter also cites to Arnold Wines as though Tennessee Wine didn’t impact it. Just as the 6th Circuit Lebamoff decision cited to Arnold Wines as though that case were good law and not upended by Tennessee Wine, which is odd.

In the 9th Circuit – Orion Wine Imports, LLC v. Applesmith (20cv15447) – a twist on the commercial clause retailer cases is underway with a Florida importer looking to distribute directly to California Wholesalers and bypass California’s in-state warehousing requirements for wholesale wine sold to retailers. The district court dismissed the matter finding that the in-state requirement that anyone can get a license so long as they bring the alcohol to rest in the state before selling to retailers, applies evenly and does not discriminate against in-state and out-of-state interests. The case is released from mediation and the scheduling order has briefing occurring through July.