Slew of New Lawsuits Refill the State Alcohol Litigation Pipeline as Previous Efforts Wind Down

There have been four new dormant Commerce Clause lawsuits filed by the same plaintiff’s attorney in recent weeks.  If you recall back around 2019, similar slews of lawsuits were filed in Texas, Kentucky, New Jersey, Indiana, Missouri, Ohio, Rhode Island, and Michigan.  

As readers of this blog are familiar, the 2019 era lawsuits have mostly wound itself through the system with the 6^th and 8^th Circuits having ruled for the state (MO and MI) and the Supreme Court not taking these cases.  Other cases were dismissed or continue at the district court or appellate stage.  These earlier dormant Commerce Clause lawsuits focused on out of state retailers claiming the right to ship to consumer because in state retailers have some form of that right.

In the effort to get their day at the Supreme Court, the plaintiffs and their new lawsuits take a different approach and seek to directly attack the Supreme Court’s language “the three-tier system is unquestionably legitimate” with challenges by breweries, distilleries, and wineries to self-distribution rights and distilleries with direct to consumer sales.

I often view these lawsuits like modern warfare and missile defense systems.   The plaintiffs can launch numerous missiles at various targets and the states must shoot them all down.   Even if the states win 99 out of the 100 lawsuits, the one that slips through can cause catastrophic damage.  As a result, eternal vigilance in responding to these lawsuits is important for the states, especially in the muddy waters of dormant Commerce Clause jurisprudence by the Supreme Court these days.

The new lawsuits include:

• A lawsuit by a New York State distillery claiming the right to ship liquor to WA residents because WA distilleries have some form of that right.
• A lawsuit by a Washington brewery against Maryland because as part of their COVID relief legislation allowed in state breweries to sell directly to retailers until June 2024, but not out of state breweries.
• A lawsuit by an Oregon winery that makes 300 cases a year for the right to sell directly to Iowa retailers because Iowa farm wineries can do so.
• A lawsuit by a Washington brewery against Idaho seeking to sell directly to retailers because it believes Idaho breweries can do it and out state breweries cannot.

This site will post updates on these cases as they proceed.