Ashley Brandt

My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people.

Ashley Brandt Blogs

Latest from Ashley Brandt

In a classic Granholm v. Heald situation involving a lack of parity between in-state and out-of-state distilleries, Washington state allows in-state distilleries the privileges of direct sale and shipment of their liquors to Washington residents and restricts out-of-state distilleries from doing the same.

Under the Washington laws for alcohol production and sale, Washington distilleries can act as a retailer of their products (and those of other distilleries) if they abide by retailer rules – primarily – maintaining a physical presence in the state. Distilleries that have a physical retail location can ship internet orders directly to customers. The in-state physical
Continue Reading Case involving alcohol law allowing in-state distilleries shipping direct to citizens and prohibiting out-of-state distilleries from doing the same allowed to proceed after direct comparison to Granholm.

We will look back to find that the greatest result of Tennessee Wine’s “test” allowing “each State leeway to enact the measures that its citizens believe are appropriate to address the public health and safety effects of alcohol use and to serve other legitimate interests” comes from the ability of lower courts to kick the idea around for a while and see what happens and what comes up before ever needing the Supreme Court to address the issue again. 139 S. Ct. 2449, 2474.

Taken at face value, it certainly means that public health and safety impacts of alcohol
Continue Reading Court finds statute barring retailer warehouse storage out of jurisdiction of alcoholic beverage control authority does not violate Dormant Commerce Clause. Finally, a Tennessee Wine case that is NOT about direct wine shipping.

“However, the Court in Lebamoff did not hold that direct ship restrictions are always constitutional. The concurring opinion, which had the support of a majority of the panel, emphasized that the Court upheld Michigan’s statute because “the plaintiffs ha[d] not sufficiently refuted” the defendant’s evidence indicating that the challenged statute “serves the public health.” 

In an opinion limiting its prior Lebamoff decision to the facts, the 6th Circuit has denied an en banc rehearing in its Block v. Canepa case leading the State of Ohio to request a stay of the mandate to remand for further fact finding so that
Continue Reading The Tennessee Wine Test? 6th Circuit falls in line with requiring evidence of out-of-state alcohol shipping restriction’s health and safety benefits in order to surmount a Dormant Commerce Clause challenge. The State says it wants to take the matter to the Supreme Court.

The Circuits are by and large falling into line regarding the implications and procedures of Tennessee Wine when Dormant Commerce Clause challenges are brought against State alcohol-related laws and regulations. They are rejecting the notion that a summary dismissal of challenges is acceptable and requiring a fact-finding assessment involving evidence greater than conclusory assertions made by “experts” regarding the health and safety effects of laws and regulations. Governments need to present evidence showing that their statutes create the stated effects, and those challenging statutes are able to present evidence to rebut those assertions. Once a plausible complaint alleges a lack
Continue Reading 1st Circuit closes ranks with those Circuits reading Tennessee Wine as requiring States prove alcohol laws discriminating against out-of-state interests affect health or safety goals or other legitimate interests

The old adage of taking a multiple of the gross profits earned by a beer distributor is the typical response you’ll receive in asking about the fair market value of the distribution rights for a given brand. We hear it a lot as a casual methodology employed between parties in negotiating value and potentially setting a price for the sale of a brand or as damages in lawsuits for improper termination of alcoholic beverage distribution rights. 

But this multiplier method has many faults. Chief among them, it is not an economically rigorous approach to setting price or value, it is
Continue Reading Another court relies on the discounted cash flow analysis and not the simple multiple of gross profits for valuing distribution rights. Don’t worry, the DCA can result in acceptable numbers as well.

The appeal results from a challenge in Ohio. An out-of-state wine retailer and an in-state wine enthusiast brought suit against the state of Ohio looking for a judgment that the inability of the out-of-state wine shipper to obtain a retail license to ship wine direct to consumers in Ohio without establishing a physical presence in Ohio violated Dormant Commerce Clause principles. You know the argument – in state retailers can ship direct but out-of-state retailers cannot and plaintiffs believe that is a Constitutional violation. The wine enthusiast also brought suit challenging a law that Ohio really doesn’t enforce regarding the
Continue Reading 6th Circuit hears oral argument in Ohio wine shipping case. Questions regarding implementing an out-of-state license and the evidentiary basis for factual assertions regarding public health and safety justifications for shipping prohibitions predominate.

A Michigan Federal Court has ruled that the motion to dismiss stage is no place to test the merits of claims that a wine supplier’s termination of a distribution agreement with a wine distributor. 

Cana Distributors, a Michigan based wholesaler of wine, sued PortoVino, a supplier of wine (link to complaint), alleging that PortoVino’s termination of their distribution agreement violated MCL §436.1305, Michigan’s statute detailing rights and remedies for the termination of wine distribution agreements. Cana asserted that PortoVino should have paid reasonable compensation for the diminished value of Cana’s business and instead proceeded in “bad faith” alleging it
Continue Reading Court rejects wine supplier’s attempt to dismiss wine distributor’s lawsuit for improper termination and reasonable compensation finding termination for lack of prompt payment and assertions of improper credit require factual determination.

A Court’s grant of an injunction to a beer distributor prohibiting Constellation from moving its brands to a new wholesaler in Washington State has set the stage for a fully briefed and soon to be argued 9th Circuit case that is certain to set an important precedent for interpreting state beer franchise laws.

That’s because the titular question, does the Washington state beer franchise law (RCW Chapter 19.126) allow a brewer or other supplier to terminate a distribution agreement without good cause provided they pay fair (or “just”) compensation, is being argued mainly from the point of statutory
Continue Reading The 9th Circuit will be deciding whether Washington’s beer franchise law allows a supplier to terminate without cause and the case may provide some important precedent.

Context is crucial. That’s the takeaway from this recent opinion out of a New York Federal Court dismissing consumer claims asserting that Coca Cola’s 12-pack Topo Chico branded Margarita Hard Seltzer packaging misleads consumers to thinking the product contains tequila and is made from Mexican mineral water. This opinion provides excellent information and analysis for those looking to further assess their packaging and understand what may cross a line and what should not in creating hard seltzer branding for those seltzers meant to taste like popular cocktails.

The claims the plaintiff raised in the lawsuit boil down to three basic
Continue Reading Valuable insight on packaging design and labeling offered in Court’s dismissal of claims that hard seltzer conveyed the impression it contained tequila. Saying “Margarita Hard Seltzer” is not the same as saying  “Sparkling Margarita” or “Margarita Cocktail.”

Every once in a while competing alcohol brands will get involved in a dispute over advertising. You’ll all remember the Bud/Miller dust-up over corn syrup from the 2019 Super Bowl advertising that took three years to shake out. There’s also the ongoing fight over Havana Club and don’t get us started on the sheer number of nascent brand trademark fights over brand names.

The merits of a fact-based claim about which company is the first African-American owned bourbon distillery in the Commonwealth of Kentucky has resulted in an ongoing lawsuit by two African-American owned companies each making claims about their
Continue Reading Court finds TTB label approval does not preclude Lanham Act false advertising claims in dispute between two brands looking to claim status as the “First African-American Owned Distillery in Kentucky.”

In a recent opinion showing the 21st Amendment and state franchise laws must work within the confines of the Commerce Clause a New York federal court has granted a second motion to dismiss the complaint of a New York beer importer and wholesaler finding that because sale of the beer (transfer of title and payment) took place outside New York, the state franchise law did not apply and could not help the wholesaler keep the rights to distribute the beer when a new importer started importing and selling the beer to other wholesalers in the state.

We previously wrote about
Continue Reading Court provides stark reminder to liquor and beer distributors about why FOB terms matter: the location of title transfer or sale can determine whether you have franchise protection thanks to the Dormant Commerce Clause.

Experience guides the law and the development of workable statutes is no exception to the idea that a society’s legislation should be reviewed and updated often as times change and circumstances reveal what works and what doesn’t.

Illinois Senate Bill 2216 and the companion House Bill 3423 provide keen and reasoned approaches to this method of lawmaking looking to proceed with some small advancement that will benefit Illinois brewers as well as Illinois bars, restaurants and not for profits.

The bills, pressed as part of this congressional session provide for the following advancements of consumer choice and availability as well
Continue Reading The Illinois Craft Brewers Guild “Beer Omnibus” bill contains some excellent advancements for bars, restaurants, wineries, distilleries and not-for-profits. With commentary.

In a lesson for beer distributors in contracting with importers of foreign beer, a Federal Court recently denied an injunction to a beer wholesaler looking to keep two Belgian breweries, Brouwerij 3 Fonteinen and De La Senne in its portfolio after a new importer started importing the beers and began selling them to a different beer distributor in the territory in Ohio.

The facts asserted in the memorandum from the Court detail the history of how the brands came to be with a new importer. The beer distributor, Cavalier Distributing, distributed both lambic brands prior to 2020 through a relationship
Continue Reading Court rules beer franchise law may not apply to foreign breweries (and their beer) where wholesaler did not engage with foreign breweries or implicate them in contracting with their U.S. importer for distribution.

In addition to what we generally think of as the “regular” reasons for terminating an alcoholic beverage franchise agreement without cause: bankruptcy, fraud in the dealings between a wholesaler and a manufacturer/supplier, suspension or termination of a distributor’s license or permit for more than 30 days, Ohio has a provision allowing successor manufacturers of wine and beers (Ohio is a control state, so the state of Ohio handles spirits distribution)) to terminate an existing relationship with a beer or wine wholesaler within 90 days of coming to the ownership of the brand of beer or wine (O.R.C. §1333.85):
Continue Reading Court finds winery and distributor continued discussions sufficient to show intent to extend timing under statute allowing transfer following brand acquisition by new owner.

You’ll recall our coverage of the cogent dissent that Judge Wilkinson penned in B-21 Wines, Inc. v. Bauer earlier this year. A quick refresher, this case involves another in the line of Dormant Commerce Clause challenges to out-of-state retailer shipping prohibitions (North Carolina’s in this instance) asserting that the discriminatory state practice of allowing in-state liquor and wine retailers to ship to in-state residents but not granting the same privileges to out-of-state alcohol retailers violates the Dormant Commerce Clause in the particular instance of discriminating against out-of-state interests in favor of in-state interests.

To be clear, this is a
Continue Reading Petition for SCOTUS review filed in North Carolina alcohol shipping case (the one with the great dissent from Judge Wilkinson).

When last we wrote, things didn’t look so good for Pabst’s Olympia Beer – they had been fighting a class action alleging damages because consumers were deceived by their “It’s the Water” printed advertising and packaging slogan. They got there after removing “pure mountain water” advertising from their website. The claim that the Court allowed to move forward was that the misimpression that all the beer was made with water from Washington State was actionable (this was based on the waterfall pictures and the “It’s the Water” slogan on the packaging). For those unfamiliar with how class action false
Continue Reading Yes, changing your advertising and discontinuing your beverage can make a difference: Court nails coffin shut on Olympia Beer class action over “It’s the Water”