To retailers considering suing NYS over shipping restrictions

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To retailers considering suing NYS over shipping restri... - 1/24/2017 4:24:27 AM

KPB

Posts: 4649
Joined: 11/25/2012
From: Ithaca, New York
Status: offline

I made an offer on Vinous and want to repeat the same thing here.

Daniel Posner posted to point out that there is now an Indiania wine retailer suing the state of Michigan over their discriminatory shipping law, which allows retails in Michigan to ship to out of state customers, but blocks incoming retail shipments.

New York State is very aggressive in the same way and has told UPS, DHL and FedEx that they must stop transporting wine on behalf of NYS buyers from out of state shippers unless they can show that they are authorized to ship into NYS. In practice this means that direct sales from wineries can continue, because there was a Supreme Court finding that it is unconstitutional to discriminate by allowing your own wineries to ship out but to block incoming shipments. But the SC decision only spoke about wine producers, not retailers, auction sites, etc. Thus NYS is blatantly discriminating, but the only way to fight back is via a lawsuit.

Such a lawsuit would need to name actual injured parties, and if you own a wine store that historically sells to New York, that would be you. My offer: even if I have not historically been a customer of yours (and honestly, I have bought from a lot of places, so check first...) I will become one. Sell me something I can't easily get in NYS -- either for reasons of limited availability, price, provenance, etc. But something I can source from you, and yet legitimately cannot obtain in NYS. Then name me as an injured party in your suit.

I'm not offering to cover your costs in any way: your suit, your lawyer, your bills. But I'll assist as much as I can for free: I'll be available to be deposed if needed (but in New York State, not in San Francisco or Chicago or Atlanta...), I'll be happy to supply an Affidavit and to get it properly notarized, etc. I would only ask that you cover direct expenses, such as airfare if I was forced to travel for a deposition, which is unusual in situations like this.

Then your suit, like the one against Michigan, can establish standing: you are an injured party, and there are also NYS customers who are directly injured as well. And with some luck, you could prevail in court.

_____________________________

Ken Birman
The Professor of Brettology

Post #: 1

RE: To retailers considering suing NYS over shipping re... - 1/24/2017 6:01:46 AM

CranBurgundy

Posts: 8272
Joined: 1/5/2016
From: Philly / South Joizey
Status: offline

Wow. Offering to lie, under oath in court, on a public forum that anyone (including lawyers, prosecutors, politicians, and judges) can read. Nice. I'm SURE that will play in favor of any plaintiff.

_____________________________

Purple Drankin' Cretin.

Vote NO on Proposition S1ct1516 "BAN the CRAN!" this Election Day.

“Let it be recorded: henceforth, December 15 shall be known as 'The Day of Dennis'.” - Prof. Ken "KPB" Birman, 12/17/23

(in reply to KPB)

Post #: 2

RE: To retailers considering suing NYS over shipping re... - 1/24/2017 7:59:17 AM

KPB

Posts: 4649
Joined: 11/25/2012
From: Ithaca, New York
Status: offline

No lie at all. I have accounts with a dozen out of state vendors, and am always interested in hard to source wines.

Like everyone else, I want wine at the best possible price, I want a good range of suppliers, trusted sources who know where bottles came from. Much of what I buy is rare an hard to source. And many of the retailers who have what I want have always been out of state.

I will put my own money at risk to place orders, knowing that I might have to pick up my wine in Chicago or California eventually. But this is costly, time consuming, and hence harms me relative to a resident of a state that allows incoming shipments of wine, and does not face those excessive costs. I would thus accept the risk of being harmed by this unreasonable New York restriction. And I would contribute my own time and effort, for free, to help tear down what I perceive as an illegal barrier to interstate commerce.

So I am lying precisely in what sense?

No, what I am offering is more like a person who buys 10 shares of a company in order to be legally allowed to speak at the shareholders meeting. You don't have standing to speak at those meetings unless you hold stock. And you don't have standing to sue the NYS law unless you are harmed by the law, and your customers are harmed by the law.

< Message edited by KPB -- 1/24/2017 8:02:21 AM >

_____________________________

Ken Birman
The Professor of Brettology

(in reply to CranBurgundy)

Post #: 3

RE: To retailers considering suing NYS over shipping re... - 1/24/2017 8:06:53 AM

KPB

Posts: 4649
Joined: 11/25/2012
From: Ithaca, New York
Status: offline

Oh, I get it. You are assuming that I would be asked "did you buy this wine with the expectation of being unable to ship it" and that I would answer "no". Not at all. I would answer that yes, I did buy it knowing that to ship it, I would have to await a legal finding that the law is unconstitutional. But also knowing that in the limit, I could go get the wine myself. I do travel a lot, and I do visit California and Chicago and so forth. Worst case I can always take wine back in a suitcase.

So (1) I would never lie under oath, (2) I wouldn't need to lie. The truth is fine. One is harmed if one is forced to spend time, or money, or is damaged in other ways. Harm doesn't have to be unexpected, or surprising. Standing isn't weakened because the harmed person knew they would be harmed by the illegal barrier to shipping that the state has imposed. The harm is just a requirement to be heard by a judge.

_____________________________

Ken Birman
The Professor of Brettology

(in reply to KPB)

Post #: 4