Justice Gorsuch’s much vaunted “Amazon of liquor” comment from the oral argument on the Tennessee Retailers case is a step closer to potentially coming before the Supreme Court as briefing is now finished in the Mississippi wine shippers case.
We first covered the case here and you can bone up on the issues with that coverage. At that time, only the Mississippi Attorney General and the National Beer Wholesalers had filed briefs. Now, the shippers have responded, a reply has been filed, and the Wine Freedom group run by Tom Wark has posted an amicus brief supporting the shippers. Here is a link to the full docket on the matter which gets you to copies all the briefs.
The interesting argument here that the Mississippi Attorney General is challenging is that under the UCC, the parties agree that title to the liquor/wine/beer passes to the buyer at the time of sale and the buyer (citizen in another state) makes the retailer its agent for contracting and shipping the citizen’s wine/beer/liquor to themselves.
The potential impact of this case is vast and would benefit wine, liquor, and beer retailers everywhere if similar circumstances give rise to similar results in other states. An affirmance by the Mississippi Supreme Court on the UCC argument would ratify a practice of out-of-state online retailers having online contractual terms that, under the UCC, allow those retailers to ship products for other state’s residents to those residents. Hence, if any state allows its citizens to bring alcohol into the state, then the practice of having their agent send it into the state for them is allowable and … all of a sudden retailers can ship peoples’ wine/beer/liquor to them provided they’ve got the proper online agreement in place… so you could order any alcohol from anywhere so long as the sale lawfully took place in the retailer’s location and the state its sent to allows residents to bring liquor in for their own use. No need for the retailer to hold a license from the state the alcohol is shipped to. No need for the state it is shipped to to allow for delivery or shipping of alcohol.
Either side will likely seek to appeal the issue from the Mississippi Supreme Court, which would set the stage for Justice Gorsuch to confront the matter SCOTUS didn’t have a chance to address this last time around.