-: SJC 13541, S&H Independent Premium Brands
East LLC et al,
the Alcoholic Beverages Control Commission et al.
Judge Kafker: Attorney Green.
-: Good, still morning.
Good morning, Your Honors.
May it please the court.
Benjamin Green on behalf
of the appellants S&H Independent Premium Brands East
and SNH Independent Premium Brands West.
Section 25E of the Liquor Control Act
is a fair trade regulation
that prevents suppliers, those that manufacture
or produce alcoholic beverages
from abusing their superior bargaining power
as suppliers are at the top
of the distribution chain, 25E impacts not only wholesalers
who are in the middle, but also retailers and consumers.
As explicitly stated in the statute,
these protections are afforded to any licensed wholesaler,
which by its plain meaning includes in-state wholesalers
with section 18 licenses
and licensed out of state wholesalers
who have section 6 18B certificates.
-: Okay, so that last part is the part that is the crux
of the case as far as I can tell, right?
And it doesn't, can you tell me why you just said
that that's plain meaning?
Because maybe you can point me
to the exact statutory language
that you think makes that plain plain.
-: Absolutely, Your Honor.
So it goes to the phrase, any license wholesaler,
which is in the first paragraph.
-: Right, of you're talking about 25E, right?
-: Of 25E, yes. -: Sure.
So, and licensed wholesalers also used in section 18.
-: Yes. -: It's used,
but there's also a phrase about being a certified out
of state supplier, correct?
-: Yes, so section 18B deals with those
that have licenses out of state.
-: And section 18 does not say that out
of state certified suppliers
are also licensed wholesalers.
-: No, section 18 does not use that language.
-: So when you say that the statutory language is plain,
I'm looking for an explicit statutory provision that says
what you just argued, which is that
the phrase any licensed wholesaler
includes out of state certified suppliers.
-: Yes, Your Honor, so-
-: Is there any such statutory language?
-: Your Honor, I would say that the phrase any,
which is explicitly included in the statute means
that the term license wholesaler should have
the broadest possible meaning.
-: Okay, that's a interpretation.
My question was slightly different.
My question was one of an explicit statutory provision,
because if your answer is yes,
I'm gonna ask you to point it to me.
If your answer is no, we can move on
and then go into the realm of interpreting language
as opposed to saying it's explicitly provided.
-: So I'd say no, Your Honor,
but I would point you to the legislative
history of the statute.
At one point, the statute in 18B said
that certificate holders
of 18B cannot be considered licensees
anywhere in this chapter.
That language was removed
and added only into another section of 25
that deals with credit terms.
So the legislature explicitly removed basically a statement
that said kind of the opposite of that.
That said you can't consider section 18Bs
to be licensees in other sections.
-: But it didn't make them licensed wholesalers.
They're only licensed wholesalers if we take the fact
that they have a license from some other state, right?
They're clearly not, they're in a different category,
whether the different category is constitutional
or not a separate question, but they're clearly
in a different category, aren't they?
-: Well, yes sir.
And they are licensed by a different authority
from a different state.
-: And so consistent with the commerce clause,
given that observation, how is it possible
that the ABCC can possibly regulate things
that are happening out of Massachusetts consistent
with the commerce clause?
-: Thank you, Your Honor.
So in terms of regulation,
there's multiple ways to look at it.
The first is that the commission can regulate parties
that have consented to the jurisdiction
of the commission, which all-
-: Regard to their outta state supply activities.
-: Well, when you, the language is clear that you have
to abide by all of the laws
of the Liquor Control Act and the commission.
So it is-
-: With regard to their activities
and how they choose to supply things
outside of Massachusetts.
-: The statutory language does not include
an exception for that.
-: But the commerce clause does.
It limits the regulatory authority of the ABCC
to things that happen in the Commonwealth.
Once the Commonwealth starts extending its reach to things
that happen, as did here outside of the Commonwealth,
then I think that squarely might
present a commerce clause problem.
-: So I'd also point out, Your Honor, that the issue
that you're addressing, which is important,
doesn't change based on the interpretation
that the commission has put forth.
And the reason because of that is that their position
is that licensed wholesalers get this protection,
but licensed wholesalers in Massachusetts don't have to sell
to retailers in Massachusetts.
They can sell to other wholesalers
and they can sell to wholesalers in any other states.
So a licensed wholesaler in Massachusetts
could purchase beverages from a supplier in California.
The beverages could never leave there,
and that licensed wholesaler could then sell those beverages
to say Colorado and Florida.
So you not put the same exact jurisdictional issue
with their interpretation as well.
-: Okay. -: But don't the licensed
wholesalers, they have a lot of responsibilities.
They have to, that's how we collect taxes on the alcohol.
They have this, they're sort of the monitoring point, right.
And so to be a licensed wholesaler,
you take on a bunch of responsibilities
that an 18B person doesn't take on, right?
-: Sometimes, Your Honor, depending on how you operate.
-: Isn't it all times?
Doesn't, isn't a licensed wholesaler held up to a bunch
of tasks and responsibilities.
You gotta be able to go to their warehouse
and check the inventory.
You put taxes on, and your guys outta state wholesalers,
no one's checking their inventory
'cause you can't, they don't have anything.
They don't have a place of business in Massachusetts
and they pay less to become one.
Aren't you, you're comparing apples to oranges.
There may still be discriminatory treatment.
I'm not, I'm not getting away from that.
But it looks like the statutory argument
seems to have very little merit to it.
-: Your Honor, first I'd say that section 25E
doesn't regulate wholesalers.
It actually regulates suppliers.
It prevents suppliers from engaging
in unfair business practices.
-: Yeah, but the whole licensed wholesalers,
there's all kinds of things they have to do that,
you know, and that's how we make money in Massachusetts,
that that's how we collect our taxes, right,
off of what's done in their premises.
-: Your Honor, I'm not arguing that there aren't distinctions
between in-state wholesalers and out-of-state wholesalers
and that the regulations in state are different
than the regulations out of state.
-: Right, but so then doesn't that just leave you
with your dormant commerce clause problem argument?
I just don't see your statutory argument.
I do see, I do want to understand
your commerce clause argument
because clearly we're giving special rights
and special obligations to a Massachusetts company
that we're not giving to others,
but they're performing a different
function under the statute.
-: They can perform different functions.
A wholesaler in Massachusetts, his license though,
could be performing the exact same function
of selling just to other wholesalers.
-: Doesn't the wholesaler still have to do all
that tax collection and other stuff?
A licensed wholesaler in Massachusetts,
even if they're selling only to other licensed wholesalers,
aren't they subject to a bunch of obligations as well?
-: I think it depends on the fact situation.
I think the other wholesaler they send sell to
then might become the, of certain obligations.
But I think you are correct
that we should jump into the dormant commerce clause issue
as that is really central to our overall argument.
-: Right. -: Now although you guys,
although Your Honor has noted the distinction.
-: You're not challenging the constitutionality
of section 18, correct?
-: Sorry, Your Honor, -: You're not challenging
the constitutionality of section 18.
Benjamin: I'm not, Your Honor.
-: So this is solely a challenge to section 25 in terms
of a constitutional challenge.
-: Solely 25E, yes, Your Honor.
-: 25E.
How do you get there without, from the face of 25E?
I don't see on the face
of 25E any disparate treatment
depending on whether a person is out of state
or a company as an out of state company
or an in-state company.
There are none, none of these distinctions
are drawn in section 25E.
-: Yes, Your honor.
So if section 25E,
if the term any licensed wholesaler
can refer only to section 18 wholesalers
and section 18 wholesalers have to be either individuals
that are citizens or LLCs that are owned by citizens
or companies that are incorporated in Massachusetts.
Then section 25E the protections are limited.
-: So you're not, but you had just told Justice Wolohojian
that you're not challenging section 18, at least,
and as I understand it, there's been a representation
that posts the Supreme Court case,
it's no longer being enforced
in that out of state versus in-state way.
-: That's correct, I'm not challenging 18.
At the time though, that the, just to clarify,
the ABC's, the commission's position about non-enforcement
did not arise until after the commission dismissed our 25E.
-: Let me put my question a different way.
Just pretend section 18 doesn't exist for the moment.
-: Yes. -: Just pretend.
And let's look, I'm looking right now at section 25E
without reference to anything beyond section 25E,
is there anything within 25E itself
that could give rise language of 25E
to a dormant clause argument?
-: So, Your Honor, if you were to just look
at 25E in pure isolation,
then I don't think you would interpret the phrase
any licensed wholesaler to refer to a section 18 licensee.
It would interpret everywhere.
-: So on it face, it would not raise,
a dormant commerce clause issue
if we limit it just to 25E.
-: If you limit it to 25E,
unless it's the interpretation that is presented
by the commission is that that only applies
to in-state wholesalers.
-: Okay, so that seems to, I hate to repeat myself,
but if you're not challenging section, the constitutionality
of section 18 on dormant commerce clause grounds
or on the basis of Tennessee Distillery
or whatever the name is of that Supreme Court case,
how do you shoehorn those arguments into a challenge
of section 25E alone?
-: You know, because when our appellant went
to get 25E protections, the commission said
these protections are not afforded
to out of state wholesalers.
And that basically set the chain of okay
by the commission standard
and their interpretation 25E is only protects
in-state wholesalers and does not protect
out of state wholesalers.
-: Does it matter that your client never sought
to be a licensed wholesaler?
-: No, Your Honor, 'cause at the time
they would not have technically been able to.
-: What are you saying is the time?
-: At the time that they filed the petition,
they could not have gotten a section 18 wholesaler
certificate because they were a,
not a domestic Massachusetts company.
-: It was the petition filed after Tennessee or before?
-: It was filed after Tennessee.
But before the commission said
that they're no longer enforcing the residency to require.
-: That or didn't, when did the ABCC stop?
When did it react to Tennessee?
-: Your Honor, that's slightly unclear from the record.
-: Okay. -: During the briefing
at the motion for judgment on the pleading stage,
an affidavit was submitted by the commission
saying that after they had evaluated post Tennessee,
and I don't know that they gave a specific date since then,
at some point they stopped enforcing this.
-: So if they stopped that enforcement
before you filed your petition?
-: I would say, Your Honor, if they had stopped
the enforcement before the issue itself arose
before we were cut off from our supplier
and at that point had a chance to get,
become a section 18 licensee
and get those protections,
that would've made a difference.
But by the time kind of this-
-: Why would that make a difference?
'Cause I thought there was a representation in your brief
that there's no time limit
as on when you can file the 25E petition.
-: I don't believe that's actually raised
in the brief. -: Is there a time limit?
-: I'm not sure of the time limit.
But there's no argument in this case
that this was not timely filed.
-: No, no, but if there's no time limit.
-: Oh, well, Your Honor, yeah, theoretically,
although it's never been raised,
if your question is at this point,
could S&H now get a section 18 license and then-
-: Or, you know, one month later than it did.
Benjamin: And then bring 25E challenge.
-: Go get a license and have brought the challenge afterwards
because Tennessee was decided
before you filed your petition.
You don't actually then go
and seek to become a licensed wholesaler.
Instead you just file a petition.
As far as we know, it may be that ABCC had already changed
its position with respect
to instate and out of state entities being entitled
to become licensed wholesalers.
Why doesn't all that matter?
-: So, Your Honor, I don't believe it would be fair
to hold my client to the standard of knowing
what the ABCC is doing internally
having never said it publicly.
-: But maybe to the standard of seeking to find out
by filing an application to become a licensed wholesaler.
-: It is possible that that might have been a way,
but that's a very roundabout way to do it.
And also the issue here, there is,
there's no timeline necessarily when you have
to file the 25E petition that's raised.
But practically, once you're cut off from a supplier,
you're going to go out of business
unless you get immediate relief.
And that's why you go immediately to the commission
and say, can you please give us this relief
that basically the supplies can keep coming to us
so that we can stay in business.
-: How long was it after you were cut off
that you filed the petition?
I thought it was, there was some separation in time.
-: I don't believe it was more than a month or so.
-: Further questions. -: Oh, can I further
address the commerce clause?
Just, I just wanna address the similarly situated issue,
just so it's clear.
-: Give you a minute. -: Thank you, Your Honor.
So the similarly situated,
the way that test works in the context
of a dormant commerce clause,
it's an economic market test.
It's not a, in-state regulation versus
out-of-state regulation test.
The key questions are the in-state entities
and the out-of-state entities selling the same
product to the same market.
And that's exactly what's going on here.
In-state wholesalers sell alcoholic beverages
to other state wholesalers.
And my client, the out-of-state license wholesaler also
sells alcoholic beverages to in-state wholesalers.
-: But not to retailers. -: Not to retailers.
-: Thank you, counsel. -: Thank you, Your Honor.
Judge Kafker: Attorney Fimognari.
-: Good afternoon, Your Honors.
Assistant Attorney General Christine Fimognari
on behalf of the Appellee,
the Alcoholic Beverages Control Commission.
The court should affirm the commission's decision
below which held that petitions under general law,
chapter 1 38, section 25E can only be invoked
by Massachusetts wholesalers
who are licensed under section 18.
Because the commission's interpretation was based
on the unambiguous statutory text, the court does not need
to reach the canon of constitutional avoidance
that the appellants propose.
But even if the court were to find
that the statute was ambiguous, the court should defer
to the commission's reasonable interpretation
because it's consistent with the statutory scheme,
the statutory purpose,
it does not violate the dormant commerce clause
and it avoids the absurd result
of having a Massachusetts State Agency regulate sales
that occur entirely outta the state.
-: I get that, I get that part.
I'm just trying to understand.
The US Supreme Court test on the dormant commerce clause
as far as I can figure it out, is that it's,
you can't discriminate,
you can't discriminate against outta state entities
who are doing, who are basically performing
the same function.
Here the only people who can become licensed wholesalers,
right, are Massachusetts corporations.
Is that ones with a domicile here, right?
Is that right?
-: Well, Your Honor, the residency requirement is no longer
being enforced in light of Tennessee wines.
-: Okay, so now back to Justice Wolohojian's question.
So if they had applied, if S&H had applied
to be a licensed wholesaler, they would've been given that?
-: Only if they met the other requirements
of section 18.
And you'll see that section-
-: Meaning that they set up a business here
that you could make them tax, you know,
subject to your taxation procedures
and everything else, is that what you're saying?
-: Yes, Your Honor, because section 18 has other requirements
such as having a warehouse in the Commonwealth,
only making purchases from the primary American source,
only paying certain excise taxes.
And if you look to the language and-
-: So is Justice Wolohojian's question then dispositive
of the whole case?
Because they didn't,
because you would've given them this if they sought it
and they didn't seek it, the rest of this is kind
of just academic.
-: That could be one way to resolve the case, Your Honor.
Yes, we would, we would agree that they didn't, you know,
seek something that would be-
-: And 'cause- -: Is that a, sorry.
-: Go ahead. -: Is a quasi standing issue
or is that a, some other kind of, or mootness
or prematurity or what maybe rubric does that fall under?
-: Well, Your Honor, it's difficult here
because the case arose out of the 25E petition
to the commission.
And so the commission didn't develop a factual record
as to the parties, you know,
applications or things like that.
So the case has proceeded through a comparison
of the statutory definitions of licensed wholesalers.
And so we've been speaking about it in the abstract.
-: So, but is it, is my understanding correct
that at the time they filed the 25E petition,
ABCC had already changed its interpretation,
let's say, of section 18B, I guess
in light of the Tennessee case?
-: Yes, Your Honor.
But to be fair to the other side,
there hadn't been a public pronouncement of that.
And so the public pronouncement didn't come
until the affidavit was filed in this case.
-: Can I ask a further question along the same lines,
was the opposite inference also out there
that they couldn't get such a license
because you had made it clear that
that was not available to them?
I'm just trying to figure out whether the reason
they didn't make this argument
or attempt to get themselves out of this bind was
because they were being told
they couldn't become a Massachusetts wholesaler.
-: Your Honor, I have no knowledge of
what they were or weren't told.
-: I'm just asking about what the record shows.
-: The record doesn't show anything about that, Your Honor.
-: But at the time they filed a 25E petition,
the agency was saying we are adhering
to the residency requirements written
into section 18 that there has been no change
in that policy.
The only change had come from the Supreme Court
that said that is unconstitutional.
-: That's correct Your Honor. -: Okay.
Christine: That's correct.
-: When you say residency requirements,
meaning having a warehouse here
or meaning that you were a Massachusetts, you know,
somehow satisfying that you're a Massachusetts corporation.
I'm just trying to understand what.
-: The latter, Your Honor, because in the Tennessee wine case
and in the Granholm case, there's a distinction drawn
between residency requirements in these three tier systems
and in-state presence requirements.
And so there's a difference between having, you know,
a warehouse in Massachusetts
where you store products in the state that's subject
to inspections and being a resident of Massachusetts.
And the Tennessee wine case, the Supreme Court said
that the residency requirement was not a fundamental aspect
of the three tier distribution scheme,
but it didn't address in state
physical premise requirements.
And it in fact noted that the retailers that issue in
that case had in-state physical premises,
which would help for regulation.
And that's part of why they rejected
the residency requirement.
But Your Honors, I'd like to-
-: But I again, 'cause I just, I just wanna make sure
I fully get this.
So at the time they're seeking,
at the time they're bringing this 25E,
you have not been allowing someone to be
a licensed wholesaler unless what?
They had a warehouse and they were what?
-: A resident of the Commonwealth.
-: Okay, and that was unconstitutional
once the Supreme Court issued that decision
'cause they're saying it's okay
to distinguish them based on having a warehouse,
requiring them to have a warehouse was required
but not making them a resident.
-: Yes, Your Honor. -: And when we look
at this record, we're not gonna be able to discern
whether these guys have been properly informed of this
'cause it's a gonna be an ambiguous record.
-: Yes, Your Honor. There's nothing in the record about
whether they've been informed of this.
But I would say that it's not relevant to the question
before the court of whether
the commission has jurisdiction under 25E over entities
that are not licensed wholesalers in Massachusetts that goes
to the residency requirement of section 18.
And whether that's constitutional
and the appellants are not challenging that here.
They're challenging section 25E.
And they attempt to inject ambiguity into the language
any licensed wholesaler in section 25E by saying
that must mean anyone anywhere in the country
who has a wholesaler license.
But we know that can't be the case based on common sense
and the overall statutory scheme.
The commission- -: The phrase licensed
wholesaler is not defined anywhere
as a phrase licensed wholesaler.
Am I correct?
-: There's no definition, Your Honor,
but section 18 is titled Wholesalers and Importers Licenses
and it provides that licenses as wholesalers
and importers may be provided.
-: Sure, so what I'm wondering is,
I mean, licensed wholesalers,
since it's not explicitly a defined term,
I understand at least linguistically to mean
a wholesaler who is licensed.
Christine: Yes, Your Honor, I'd agree with that.
-: Okay, so that would have two parts.
One is, was this particular entity a wholesaler
and is this particular entity licensed?
We know it was not licensed.
So then the question is, was it a wholesaler?
What's your position on that question?
-: Your Honor, if you look to the language
of section 18B, it says no in the second paragraph.
No person who sell holds a certificate under this section
shall hold or be granted a license under section 18.
So no person who is a certificate
of compliance holder can hold a wholesaler
license in Massachusetts.
-: It can't be both. -: It cannot be both,
Your Honor.
And they were not operating this both
because they were not making a sale to a retailer
and the appellants argued that-
-: Could be both.
So your answer is both a legal answer and a factual answer.
The legal answer being
because of 18B, they can't be both a certificate holder
and a wholesaler license.
And the factual question, the factual answer is,
and they were never selling to retailers.
So they're not a wholesaler.
-: Yes, Your Honor. -: Okay.
-: And it's also worth mentioning that
the statutory scheme of
what the commission can regulate is entities doing business
in the Massachusetts market.
That's the operative transaction that 25E protects.
And section 18 only allows wholesalers
to make purchases from other licensees.
It says, you know, those who are any manufacturer licensed
under the provisions of section 19
or holders of certificate of compliance under section 18B.
So when the wholesaler is under section 18
is making a purchase, that's a transaction
that comes into Massachusetts.
And we know that because section 18 also says that in order
to ensure the necessary control of traffic
and alcoholic beverages, et cetera, et cetera,
the shipment of such beverages into this commonwealth
except as provided in this section
and two other sections is hereby prohibited.
So the alcoholic product only enters Massachusetts
once it is purchased by a licensed wholesaler.
And Your Honors, the transaction
that the appellants are trying to invoke the protections
of 25 E here did not occur within the Massachusetts market.
It's a section 18B certificate of compliance holder
who is located in Colorado and California making a purchase
and having sales relationships with an Austrian brewery
that has nothing to do with Massachusetts.
It's not until the section 18B certificate
of compliance holder makes a sale
to the section 18 licensed wholesaler
that it comes within the Massachusetts market
and then within the regulatory authority of the commission.
-: Why can't a licensed wholesaler under 25E
include 18B certificate holders?
Because to be a certificate holder, you have to be licensed
to sell in Massachusetts.
-: I'm sorry, Your Honor,
I'm not sure I understand your question.
-: So it's convoluted, but, and I don't have a voice today,
but licensed wholesaler, right, as a term
could arguably include an 18B certificate holder
because an 18B certificate holder
is somebody who's has a license.
-: I understand that that could be an interpretation,
Your Honor, but it wouldn't be a reasonable interpretation
here because it would require the commission
to regulate activity outside of the state
and that would first off create the risk of inconsistent.
-: So when we read licensed wholesaler,
it has to be a wholesaler licensed in Massachusetts.
-: Yes, Your Honor. And if you look at the language
of section 18B where the legislature intended to refer
to licensees that had licenses granted in other states,
they indicated that.
The first section of, the first sentence
of section 18B says you can issue a certificate
of compliance to a licensee having a place
of business located and a license granted
outside the commonwealth.
Your Honor, I see I've exceeded my time,
but if I could just briefly address one more point.
Judge Kafker: All right, you've got
the same minute he did.
-: Thank you, Your Honor.
I just wanna direct Your Honor's attention
to the Anheuser-Busch case,
which is 75 Mass App Court 203, that's cited in the brief.
And in that case there's a discussion of the interpretation
of the phrase a license under section 18.
And in interpreting that section, the appeals court
referenced specifically that section 18 wholesaler licenses,
there's different types.
If you look in section 18,
there's one for all alcoholic beverages
and there's some for just malt beverages and wine.
And the court, the appeals court in that case said
if the legislature had intended to include both types
of licensed wholesalers under section 18,
they would've used the word any license under section 18.
So it's completely plausible
and reasonable that the phrase any licensed wholesaler here
is simply referring to the two types
of wholesalers under section 18.
And that would avoid the impermissible construction
proffered by the appellants.
And for those reasons, we'd ask the court to affirm.
-: Thank you. -: Thank you.
-: Good afternoon, Your honors.
May I please the court?
Dennis McKenna, representing the other appellees,
Winittoo Global Beer and Stiegl.
In my time, I wanted to address the two questions
Justice Wolohojian had, and that was the timing
of the termination versus the timing of the filing.
The notice of termination was January, 2019.
The filing of the 25 petition was December, 2019.
And the second question was, I believe referring
to why can't the language of 25E meaning,
actually it might have been Justice Wendlandt,
be a certificate compliance holder
who is a wholesaler in some other state.
And that is because it, you have to be a wholesaler
in Massachusetts for the three levels.
So in this case, S&H was at the supplier level.
They purchased from my client, Stiegl, an Austrian brewer.
They purchased it to go somewhere else,
not into Massachusetts.
Stiegl would ship not into Massachusetts
depending on whether it was east or west,
but neither east nor west ever sold to a retailer.
And in Massachusetts the three tiers are supplier,
wholesaler, and then retail with-
-: I guess my question was a little more basic
and maybe unreasonable as your council on your side said.
But 18B talks about people who are licensed, right?
And then 25E also talks about people who are licensed.
And my question was really why can't that license
in 18B refer to the same license as 25E?
-: Because- -: And you're saying it's
because of this three tier system?
Is that your answer?
-: Right, it's any licensed wholesaler,
meaning wholesaler in Massachusetts
because a wholesaler in Massachusetts is selling
to the retail level sections 12 and 15.
So section 18 at level two.
-: Right, but it doesn't have to be that way.
Maybe it's the most reasonable interpretation,
but it could be any licensed wholesaler
is somebody like S&H East or West who has a license
and is a wholesaler, they're not really the supplier.
Your client is the supplier, right?
-: No, my client's the manufacturer
who would be an 18B certificate
of compliance holder.
So they can sell to another certificate
of compliance holder being their importer,
which is S&H, not a wholesaler.
So my client can't sell to a wholesaler.
Okay, my client, my client sells to an importer,
which is the certificate of compliance holder being S&H.
And the other reason I came to, we joined the brief
of the ABCC, we have nothing to add to the amicus.
The real world implication is
that which is particularly emphasized by the amicus,
which is expanding the ABCC's interpretation
in the jurisdiction, it becomes extraterritorial.
And what's happening in the Superior Court
between not including the ABCC,
but including my clients, is exactly what's the threat,
which is the claim in the Superior court against Stiegl
by the S&H East and West is based upon 25E.
You could not terminate us,
even though from my Austrian brewer's perspective,
they saw S&H as an at will relationship.
There was no written contract terminable at will.
And that's what happened
after several years according to the theory
that's bootstrapped in the Superior Court case,
but which is being argued in this court,
that breach by the Austrian brewer gives rise to a breach
of contract claim and treble damages exposing Stiegl
to millions of dollars of alleged damages.
That's the real world implication.
If there are no further questions, I rest.
Thank you.