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Screaming Eagle removed mailing list members for flipping
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Originally posted by grossie:
There's got to be something illegal about what SE did. It's some sort of restraint of trade, isn't it? I guess they can choose who to sell to, but there's something weird and anti-capitalist in the whole thing.

Agreed. It will be interesting to see what happens when someone finally decides to sue them. And you can be sure, it will happen.


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A father is someone who has pictures where his money used to be.
 
Posts: 6786 | Location: Everett, WA | Registered: Mar 08, 2002Reply With QuoteReport This Post
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Originally posted by grossie:
There's got to be something illegal about what SE did. It's some sort of restraint of trade, isn't it? I guess they can choose who to sell to, but there's something weird and anti-capitalist in the whole thing.


I had similar thoughts about the legal aspects of cutting someone off. Remember this recent post from Manfred Krankl, at SQN?:

If we learn that someone is re-selling (a.k.a. flipping) the wines – their divine right from a legal or purely capitalist point of view mind you – we may decrease that person’s allocation in the future because if the person feels the pressure to SELL some of their wine, then we are apparently over-allocating.

Unless there are specific clauses in the agreement between seller and buyer covering this issue, it seems that prohibiting or punishing resale of a product in this matter may border on restraint of trade. Lawyers??

PH
 
Posts: 15062 | Location: Maryland, USA (DC suburbs) | Registered: Nov 22, 2003Reply With QuoteReport This Post
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Originally posted by PurpleHaze:
Remember this recent post from Manfred Krankl, at SQN?:

If we learn that someone is re-selling (a.k.a. flipping) the wines – their divine right from a legal or purely capitalist point of view mind you – we may decrease that person’s allocation in the future because if the person feels the pressure to SELL some of their wine, then we are apparently over-allocating.

PH

Excellent point from M Krankl and he has every right to take that position. It's his wine, his allocation, and there is no 'contract' with the buyer regarding agreed amounts. Completely his call.

Very well played Wink
 
Posts: 15478 | Location: Montreal, QC | Registered: Feb 17, 2007Reply With QuoteReport This Post
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Originally posted by PurpleHaze:
quote:
Originally posted by grossie:
There's got to be something illegal about what SE did. It's some sort of restraint of trade, isn't it? I guess they can choose who to sell to, but there's something weird and anti-capitalist in the whole thing.


I had similar thoughts about the legal aspects of cutting someone off. Remember this recent post from Manfred Krankl, at SQN?:

If we learn that someone is re-selling (a.k.a. flipping) the wines – their divine right from a legal or purely capitalist point of view mind you – we may decrease that person’s allocation in the future because if the person feels the pressure to SELL some of their wine, then we are apparently over-allocating.

Unless there are specific clauses in the agreement between seller and buyer covering this issue, it seems that prohibiting or punishing resale of a product in this matter may border on restraint of trade. Lawyers??

PH

It is absolutely not illegal nor actionable. They are not saying you can't resell your wines. They are just saying if we know you are flipping we won't sell any more wine to you... And they have the right to sell their wine to whomever they want.
I would do the same... If I let someone in on my allocation at cost, because they really wanted a particular wine, and I found out they did so just to turn around and flip it, I would never sell to that person again. What they did is not illegal, but I have the right as the seller to not do business with them again. The same holds true for SE.


The Dude abides.
 
Posts: 2991 | Location: San Francisco and Taipei | Registered: Jun 03, 2011Reply With QuoteReport This Post
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I dunno, KSC.

Frankly, I don't think most of those flipping SQN or SE are doing it under "pressure," although I'm sure there are some whose financial situations have changed over the years and who would like to stay active on the list until better times. If they're caught selling their wines at release price, would it make any difference to the winery? And so what if they sell for a profit?

Any folk on the SQN or SE lists, did you receive any warnings or make any agreements with the winery regarding resale?

PH
 
Posts: 15062 | Location: Maryland, USA (DC suburbs) | Registered: Nov 22, 2003Reply With QuoteReport This Post
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If you have ordered a Ferrari from a factory dealership, the moment you drive a 458 off the lot you can turn around and sell the car and pocket a cool $80G profit. However, Ferrari makes it very clear that if you flip our cars, you will NEVER get another Ferrari from any factory dealership. Is any judge going to hear that case for being blacklisted? Please.


The Dude abides.
 
Posts: 2991 | Location: San Francisco and Taipei | Registered: Jun 03, 2011Reply With QuoteReport This Post
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Originally posted by TPEwinedrinker:
....If I let someone in on my allocation at cost, because they really wanted a particular wine, and I found out they did so just to turn around and flip it, I would never sell to that person again. What they did is not illegal, but I have the right as the seller to not do business with them again. The same holds true for SE.


No argument TPE. I would feel the same way if someone I knew flipped a bottle for profit that I sold them at cost. Don't you think that there are different legal thresholds for an individual and a company when it comes to this kind of thing? I'm trying to come up with an analogous comparison in another industry but can't quite come up with one that's similar enough.

It seems that with most allocated wines, the only requirement that I'm aware of to continue to receive the product is continued purchases at certain levels. If someone decides to use their SE to christen ships as opposed to drinking it, would the winery be justified in cutting them off?

PH
 
Posts: 15062 | Location: Maryland, USA (DC suburbs) | Registered: Nov 22, 2003Reply With QuoteReport This Post
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Originally posted by PurpleHaze:
quote:
Originally posted by TPEwinedrinker:
....If I let someone in on my allocation at cost, because they really wanted a particular wine, and I found out they did so just to turn around and flip it, I would never sell to that person again. What they did is not illegal, but I have the right as the seller to not do business with them again. The same holds true for SE.


No argument TPE. I would feel the same way if someone I knew flipped a bottle for profit that I sold them at cost. Don't you think that there are different legal thresholds for an individual and a company when it comes to this kind of thing? I'm trying to come up with an analogous comparison in another industry but can't quite come up with one that's similar enough.

It seems that with most allocated wines, the only requirement that I'm aware of to continue to receive the product is continued purchases at certain levels. If someone decides to use their SE to christen ships as opposed to drinking it, would the winery be justified in cutting them off?

PH

Past patronage does in no way guarantee a person right to future goods in perpetuity. Just as there is no contract between SE and the customer that says "you cannot flip wines," there is also no contract that says, "if you have purchased from us in the past, you are guaranteed an allocation in the future." The argument cuts both ways. Even this year, people who had bought Rudius wines previously were shut out because the yields were low.
As a private business owner, I have rights too. If someone I knew who had been a previous customer decided to stand on a public street and legally exercise their First Amendment rights, but their message was incredibly offensive to me and other patrons, I have the right to not receive their business.
SE has that right too... I see no problem with them exercising it.


The Dude abides.
 
Posts: 2991 | Location: San Francisco and Taipei | Registered: Jun 03, 2011Reply With QuoteReport This Post
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While I was making a second cup of coffee, TPE posts an analogous comparison..... Red Face

I'm not sure whether the judge would have the option to hear or not hear the case if brought in civil court unless there was a legal basis to classify the claim as frivolous. I'd really like to hear some legal specifics on this from the attorneys on the board. It seems to me that if the only requirement to continue to receive product is continued purchases at certain levels, that there may be an actionable claim that could be made by resellers.

The auto analogy may or may not be comparable here. With many car stores, if they have product whose market value exceeds the MSRP of the vehicle they can (and often do) apply an "additional dealer markup" so that they can sell their vehicles at market value. Once the vehicle leaves their lot, I'm not sure what if any rights they have to restrict sales to resellers in the future, regardless of profit margin.

Typically, with rare vehicles, the buyer pays a substantial partial payment in advance to reserve a vehicle allocation. Unless there is contractual language barring resale, I'm just not sure if there is a legal justification for witholding future products. Let's say a buyer has deposits with a dealership for a 2012 <insert rare vehicle here> and another order for a 2013. The dealership finds out that the buyer flipped his 2012. If there were not contractual restrictions in the sale documents restricting resale and the dealership cancelled the 2013 order based on the logic TPE uses in the Ferarri example, I'm pretty sure the buyer would have a legal basis for a claim.

PH
 
Posts: 15062 | Location: Maryland, USA (DC suburbs) | Registered: Nov 22, 2003Reply With QuoteReport This Post
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I also think that there is a very clear difference between restricting allocation based on supply and restricting allocation based on what the consumer does with his or her property after the sale is complete.

Chick-Fil-A has the right to take a position on gay marriage, to publicly state that position and to donate to organizations that support their philosophy. They do not have the right to refuse service to a gay couple, regardless of how offensive the concept is to them.

PH
 
Posts: 15062 | Location: Maryland, USA (DC suburbs) | Registered: Nov 22, 2003Reply With QuoteReport This Post
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I have never understood why it is illegal to sell sports tickets above face value at the sporting event, but you buy from an online broker and pay 3-4 times and it is legel.

You will get busted at major sporting events in Texas. Roll Eyes
 
Posts: 30081 | Location: Dallas, TX & Santa Fe, NM | Registered: Feb 21, 2005Reply With QuoteReport This Post
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Originally posted by wine+art:
I have never understood why it is illegal to sell sports tickets above face value at the sporting event, but you buy from an online broker and pay 3-4 times and it is legel.

You will get busted at major sporting events in Texas. Roll Eyes


I'm thinking there are a couple reasons, w+a. In the case of scalpers, there are usually laws in place that govern this activity. I know in the DC area, one of the restrictions is proximity to the venue. Agree or disagree, there are laws that cover the behaviour. Another reason might be that the online sellers are required to pay tax on the transaction while the "independents" are circumventing tax laws? Just a guess.

PH
 
Posts: 15062 | Location: Maryland, USA (DC suburbs) | Registered: Nov 22, 2003Reply With QuoteReport This Post
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Originally posted by PurpleHaze:
I also think that there is a very clear difference between restricting allocation based on supply and restricting allocation based on what the consumer does with his or her property after the sale is complete.

Chick-Fil-A has the right to take a position on gay marriage, to publicly state that position and to donate to organizations that support their philosophy. They do not have the right to refuse service to a gay couple, regardless of how offensive the concept is to them.

PH

That is 100% true, but that is a form of legally protected discrimination.
Would anyone have a problem with SE removing a member who had bought wines in the past, and then videotaped themselves smashing the bottles with a sledgehammer and poating themup on YouTube to protest the escalating prices of Napa "cult" cabs? SE simply says we want our wine to go to those who really want it, so we removed that person from our mailing list. Well the person who is flipping wine, also does not really want the wine either, so why not remove them from the mailing list?


The Dude abides.
 
Posts: 2991 | Location: San Francisco and Taipei | Registered: Jun 03, 2011Reply With QuoteReport This Post
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In short. IMHO once you buy a product you can do with it what ever you want. Once sales is complete, the ownership passes to the buyer.


Live simply, Laugh often, Wine a lot!!!
 
Posts: 6320 | Location: Palm Beach Gardens FL | Registered: Nov 05, 2001Reply With QuoteReport This Post
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Originally posted by PurpleHaze:
quote:
Originally posted by wine+art:
I have never understood why it is illegal to sell sports tickets above face value at the sporting event, but you buy from an online broker and pay 3-4 times and it is legel.

You will get busted at major sporting events in Texas. Roll Eyes


I'm thinking there are a couple reasons, w+a. In the case of scalpers, there are usually laws in place that govern this activity. I know in the DC area, one of the restrictions is proximity to the venue. Agree or disagree, there are laws that cover the behaviour. Another reason might be that the online sellers are required to pay tax on the transaction while the "independents" are circumventing tax laws? Just a guess.

PH


Good points... I thought about the taxes, but you can sell them at face value and no taxes collect.

E-commerce is still far ahead of our current laws.

Hell, look at snail mail, our gov't is clueless and pisses away billions of our taxes on a dying business model. Our current president has refused to address the issue due to his STRONG union ties, and I am not confident the next president will address the issue either, regardless of the outcome in November.
 
Posts: 30081 | Location: Dallas, TX & Santa Fe, NM | Registered: Feb 21, 2005Reply With QuoteReport This Post
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Originally posted by Ed Bowers [i.e. FlWino]:
In short. IMHO once you buy a product you can do with it what ever you want. Once sales is complete, the ownership passes to the buyer.

Yes, but the seller can still make sure that no FUTURE ownership passes your way by limiting your ability to buy. LV restricts purchasing of goods in American stores by Japanese nationals to a maximum of 3 of the same piece because they know they will resell them in Japan... Still haven't been sued. Hermes will not allow you to buy a Birkin if you have been caught flipping one in the past. As long as the goods are still in their possession, they can choose whether they want to sell them.


The Dude abides.
 
Posts: 2991 | Location: San Francisco and Taipei | Registered: Jun 03, 2011Reply With QuoteReport This Post
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Originally posted by TPEwinedrinker:

That is 100% true, but that is a form of legally protected discrimination.

So is the right to sell your property for a profit.

Would anyone have a problem with SE removing a member who had bought wines in the past, and then videotaped themselves smashing the bottles with a sledgehammer and poating themup on YouTube to protest the escalating prices of Napa "cult" cabs?

The question isn't whether anyone would understand the reaction of SE in your bottle smashing example, most would. The question is if there is a legal basis for removal based on that criterion alone.

SE simply says we want our wine to go to those who really want it, so we removed that person from our mailing list. Well the person who is flipping wine, also does not really want the wine either.

If the buyers didn't want the wine, they wouldn't purchase it. It's their right to do with it as they please. If the 458 owner decided he wants to fill his vehicle with potting soil and plant daisies in it, is the Ferrari agency legally permitted to restrict future trade with this consumer based on what they do with their property after they have fulfilled their contractual obligations with the dealership?


We can continue to kick this around ad nauseum. Neither of us are lawers (at least I'm not) so why don't we let the lawyers chime in on this? I'd be fascinated to hear what they have to say.

PH
 
Posts: 15062 | Location: Maryland, USA (DC suburbs) | Registered: Nov 22, 2003Reply With QuoteReport This Post
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PH- I am a lawyer. Smile


The Dude abides.
 
Posts: 2991 | Location: San Francisco and Taipei | Registered: Jun 03, 2011Reply With QuoteReport This Post
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What's your area of specialty?

PH
 
Posts: 15062 | Location: Maryland, USA (DC suburbs) | Registered: Nov 22, 2003Reply With QuoteReport This Post
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All this discussion over an average wine at best that I have never seen even place towards the top in blind tastings. Big Grin
 
Posts: 30081 | Location: Dallas, TX & Santa Fe, NM | Registered: Feb 21, 2005Reply With QuoteReport This Post
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Originally posted by wine+art:
All this discussion over an average wine at best that I have never seen even place towards the top in blind tastings. Big Grin


Ah....but the discussion isn't about the wine. It's about property rights, and retaliatory restraint of trade!! I've never tasted SE, and probably never will. At least not on my dime!

PH
 
Posts: 15062 | Location: Maryland, USA (DC suburbs) | Registered: Nov 22, 2003Reply With QuoteReport This Post
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Originally posted by PurpleHaze:
quote:
Originally posted by wine+art:
All this discussion over an average wine at best that I have never seen even place towards the top in blind tastings. Big Grin


Ah....but the discussion isn't about the wine. It's about property rights, and retaliatory restraint of trade!! I've never tasted SE, and probably never will. At least not on my dime!

PH


...but no such discussion about property rights in reference to two buck chuck. Wink
 
Posts: 30081 | Location: Dallas, TX & Santa Fe, NM | Registered: Feb 21, 2005Reply With QuoteReport This Post
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I think too many people are getting caught up in thinking SE is saying you can not sell their wine. There is nothing they can do about it legally..nothing at all. And the fact is, they're not attempting to stop you...

But on the other hand, there is nothing, absolutely NOTHING that requires that they offer to sell you their wine.

There are a good number of places that have made it known they dislike flippers...so if it is so blatantly obvious you're a flipper, that is just not what they want for their product. Right or wrong, that is not the type of hype or marketing etc, that they want from their product (although ironically, they have benefited from it, at least early on).

Personally, I agree with that type of policy. Allocations should go to the people that want to drink the wine. I have no issues with people flipping their wine...but I also don't feel bad for them if they lost their allocation.
 
Posts: 67 | Registered: Apr 27, 2010Reply With QuoteReport This Post
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Originally posted by Polymer:
I think too many people are getting caught up in thinking SE is saying you can not sell their wine. There is nothing they can do about it legally..nothing at all. And the fact is, they're not attempting to stop you...

I don't think anyone has claimed that SE can prevent people from reselling their wine. The question is, can they legally pre-empt an ongoing business arrangement once the offer has been made and continued without a contractual violation occurring. I would have no problem if there was a no-flip or a no-using our wine for christening boat clause in an agreement between SE and their clients. Legally, where could you draw the line? Consumer A sells his wine for $10 profit. Consumer B sells his wine for $500 profit. Consumer C flips his wine for a $50 loss. All are reselling the product. Who do you think SE is going to target? Is this legally justified solely based on the profit margin?

But on the other hand, there is nothing, absolutely NOTHING that requires that they offer to sell you their wine.

Yes, but once an offer has been made and there is a pattern and a history of sales based on publicly established criteria, can resale for substantial profit be a legally justifiable reason for termination of the arrangement?


Typically, the reason sellers adhere to a set list price on rare product as opposed to a market driven pricing model is for public relations or customer loyalty reasons. If SE chooses to sell their wine for less than the ultimate market value for their product, they have that right. I'm just not sure if they have the right to cancel ongoing business relationships based on what the consumer does with their property after they've taken possession of it.

PH
 
Posts: 15062 | Location: Maryland, USA (DC suburbs) | Registered: Nov 22, 2003Reply With QuoteReport This Post
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You're not sure or you don't agree with it?

They absolutely have the right to sell to whomever they wish.

I'm pretty sure they don't publish any criteria and there is no implied contract at all. I'm pretty sure they have all stated they can allocate however they want to.
 
Posts: 67 | Registered: Apr 27, 2010Reply With QuoteReport This Post
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