By Seth Daniel
Business is going great for Total Wine & More – the large national alcohol retailer that came into the market about two years ago – planting one of its first Massachusetts stores at the Gateway Center in Everett.
And while business in Everett is going well, company officials said this week, the company is even happier with an exonerating decision rendered recently by the Superior Court in Boston regarding heavy penalties put on them by the state Alcoholic Beverages Control Commission (ABCC) for allegedly selling liquor below cost. It’s a practice sometime known as “loss leader” pricing, but in this case – which was prompted for the ABCC through an anonymous tipster – the courts beat back any notion the ABCC had of charging Total Wine with such practices.
“The Commission’s starchy construction of (the law), which limits ‘invoiced cost’ to the total reflected on a wholesaler’s original invoice, bears no rational relationship to the legislative policy of prohibiting anti-competitive pricing practices,” read the decision from Judge Robert Gordon. “There was clearly no predatory pricing carried out in this case – only a salutary effort by a retailer to pass along savings derived from volume purchasing at the wholesale level to its customers. This is something the law should promote rather than punish.”
That was only part of a decision that lambasted the ABCC for their interpretation of ‘invoice cost’ in the case against Total Wine, which played out at the Everett and Natick stores in 2016 and 2017.
“We took action against that in court and we did win,” said Ed Cooper of Total Wine. “We appealed to the courts and we prevailed…We’ll never sell below cost and some of our stores were cited for doing so and levied with penalties. We didn’t feel we sold below cost and the invoice said so. The court went along with us.”
The ABCC is apparently appealing the decision, but they were not available for comment on the matter in time for this story.
Judge Gordon indicated that it was clear Total Wine was not selling below cost, but rather getting further discounts from the manufacturer that were reflected on succeeding invoices.
Total Wine had been disciplined by the ABCC in the form of suspending its license and making its Everett and Natick stores close for eight days – with two days to be served and six to be held over if any further incidents would have happened.
Total Wine filed its case in February in Suffolk Superior Court.
Judge Gordon vacated the ABCC’s decision in late August.
“The Everett store is great,” Cooper said. “We’re extremely happy to be there and to have come to the Commonwealth. Business has gone really well in Everett. Part of it is about location and where you’re located. That location in the Gateway Center is terrific. It’s a central location not only for Everett residents, but also for residents of the surrounding areas…We are looking to expand in the Commonwealth.”
In addition to Everett and Natick, Total Wine now has stores in Danvers and Shrewsbury.