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Direct shipping update.

Wines & Wines took an in-depth look at the direct shipping of wine issue in January 2001. A year later, here is the state of the ongoing lawsuits in six states.

After three years of uncoordinated efforts in many areas of the United States, there is finally a cohesive approach to the overturning of draconian felony shipping laws enacted in many states, usually by credulous lawmakers duped by the national wholesale lobby into thinking that banning shipments to adult consumers would somehow prevent minors from ordering wine and having it shipped to their homes.

On Nov. 10, 2001, a meeting was held at the Kendall-Jackson tasting facility in Santa Rosa, Calif., to coordinate the efforts of the attorneys involved in the six lawsuits in Virginia, Texas, New York, Michigan, North Carolina and Florida. Organized by the Coalition for Free Trade, the strategy session brought together the various legal teams as well as other interested parties. There was an update on the legal battle, a Wine Institute presentation on the legislative agenda in various states, a discussion of "new" cases and a lively discussion on the hoped-for eventual Supreme Court strategy.

Here is the present situation with the lawsuits (most of which have plaintiffs that are consumers as well as some wineries):

TEXAS: Referred to as "the big mystery" case, the plaintiffs prevailed in district court, but following the decision, the Texas legislature altered the law, prompting the losing side to petition for a rehearing. The judge (Harmon) then ordered both sides to submit new summary judgment arguments as to what effect the new law would have on her decision. This is likely to drag on for another one to six months, as the judge has shown no signs of expediting matters and the case has dragged on for an unconscionable length of time. It should have been to the appellate court long ago. Meanwhile, Texas consumers languish.

NEW YORK: Roughly the same stage as Texas except there has been no district court opinion either way. Summary judgment briefs were submitted late November after a spate of frivolous motions by an army of intervenors including Mothers Against Drunk Driving and the Teamsters Union.

Apparently, following the tragic events of Sep. 11, 2001, the legal system in New York has ground to a crawl even though the intervenors' motions were all denied. Those close to the case say it is not going anywhere.

VIRGINIA: A decision is expected from the District Court any day now. The judge in the case originally referred the matter to a magistrate for a recommendation. Surprisingly, the magistrate made an in-depth, scholarly review of all the issues and decided that the plaintiffs should win. He also totally trashed the infamous "Easterbrook" opinion in the now defunct Indiana case from the 7th Circuit Court of Appeals in Chicago. That eight-page wonder stated that Judge Easterbrook found no discrimination against out-of-state sellers of wine because he said so, totally ignoring the facts of the case. This is the third court that has essentially said the "Easterbrook Opinion" is worthless as law and is definitely no precedent.

Anyway, in the Virginia case, the oral argument was Oct. 3. After the magistrate issued his recommendation, the judge said he would issue an opinion "promptly." (However, "promptly" in the U.S. judicial system can mean anything from the next day to the next year.)

NORTH CAROLINA: Summary judgment briefs were filed in March 2001. Since then, nothing has happened for six months.

MICHIGAN: A negative decision was issued against the plaintiffs by Chief Judge Bernard Friedman. Plaintiffs plan on an appeal to the 6th Circuit Court of Appeals in Cincinnati. One of the attorneys in the case described the meager (10 page) opinion as "superficial and hurried." When the plaintiffs made a motion to clarify the "facts" in the case, Judge Friedman denied it stating that the "facts" were "irrelevant." (He is not exactly the most perspicacious judge on the planet.) Look for nothing much to happen until next summer.

FLORIDA: Plaintiffs lost in round one District Court in one of the more bizarre examples of legal reasoning. The judge said, yes, there was obvious discrimination between in-state and out-of-state sellers of wine (hence flogging the Easterbrook dog again) but then decided that the plaintiffs lost because we're talking ethanol here, and therefore the 21st Amendment rules, thus flying in the face of myriad Supreme Court rulings over the last 20 years to the contrary. The only good thing about this case is that the Florida wholesalers were denied intervenor status, and therefore the case has nor been bogged down by superfluous motions. The plaintiffs have filed their appeal to the Appellate Court.

The new legal head of the Coalition for Free Trade is Tracy Genesen of the Sacramento law firm Foley & Gardner. She replaces William Kinzler in the position.

RELATED ARTICLE: Figures Offer Look At Texas Grape Production

According to new figures released in January by the Texas Agricultural Statistics Services (TASS), Texas produced 9,300 tons of grapes in 2001. This is the first time acreage, yield, production and value of production figures have been available for Texas grape production.

Texas harvested about 2,900 acres of grapes in 2001 with an estimated value of $8.37 million. The average yield per acre was 3.2 tons. Average value per ton was $900.

Cabernet Sauvignon led in total acreage with 700 harvested acres producing 2,130 tons. Chardonnay was harvested from 570 acres, producing 1,480 tons. Sauvignon blanc and Chenin blanc, harvested from 370 acres and 360 acres respectively, produced 1,750 tons and 1,700 tons. Merlot totaled 300 harvested acres with 730 tons produced.

Chardonnay had the highest value per ton at $1,060. Merlot followed at $1,050 per ton and Cabernet Sauvignon was third at $1,020 per ton.

Values for Sauvignon blanc and Chenin blanc were $840 per ton and $650 per ton; however, both led in the average yield per acre at 4.7 tons. Cabernet Sauvignon yielded an average of 3 tons per acre; Chardonnay, 2.6 tons per acre; and Merlot, 2.4 tons per acre.

The TASS figures are based on a survey of Texas grape growers, which began after Texas joined the U.S. Department of Agriculture's grape estimating program in 2000.

(Russ Bridenbaugh can be contacted at
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Author:Bridenbaugh, Russ
Publication:Wines & Vines
Geographic Code:1USA
Date:Apr 1, 2002
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