Setting the Record Straight: Vinoshipper Did Not Lose Its Virginia Appeal

One page. Never filed. No ruling on the merits.

Let me start with the part that matters: Vinoshipper did not lose its appeal in Virginia. The case was dismissed because a single piece of paper was never filed.

I have been transparent on this Substack about our experience with the Virginia ABC, and I have written at length about the regulatory capture I’ve watched up close — the plenary power claim, the self-dealing structure, the walk-out arrangements with wholesalers. What I have not yet written about is what actually happened to the appeal itself, and why some commentators continue to claim Virginia “won.” They didn’t. The case was dismissed on a procedural failure that had nothing to do with the merits. Here is what occurred.

The Court Record, Briefly

The merits record is more favorable to Vinoshipper than most readers realize. The original Circuit Court ruling found that our drop-shipping model complied with Virginia law. The Court of Appeals reversed. We were preparing the next step — an appeal to the Supreme Court of Virginia — when the case ended in a way that had nothing to do with the strength of our argument and everything to do with one missed filing.

A Notice of Appeal That Was Never Filed

Filing an appeal in Virginia involves two documents: the appeal itself, and the notice of appeal. The notice is a single page. Its only purpose is to tell the lower court and the opposing party that an appeal is being pursued. Without it, there is no appeal — full stop.

Our then-attorney, Mark Shuford, had been on vacation in the run-up to the deadline. He scrambled to make the filing on time and, clearly distracted, missed the notice of appeal entirely. The opposing party — the Virginia ABC — did not even catch the omission initially. They proceeded to file their brief responding to the appeal, which means they too were operating on the assumption that the appeal had been properly noticed. The error was eventually flagged not by the ABC, not by Shuford, and not by Shuford’s selected appellate printer. It was flagged by the clerk’s office.

When confronted, Shuford blamed the printer. The printer — Gibson Moore Appellate Services of Richmond, Virginia, since acquired by Counsel Press in July 2025 — blamed Shuford. Neither offered an apology. I have requested all correspondence from the printer about the filing on more than one occasion. They have not responded. Not once.

That is the actual story of how Virginia “won” its appeal.

Why There Is No Malpractice Suit

The natural question is: why not bring a malpractice action against Shuford? The answer reveals something about how the legal system is built to protect itself.

Virginia, like many states, applies the “case-within-a-case” doctrine to legal malpractice claims. To prevail, a plaintiff must prove not only that the lawyer breached the standard of care — which in this instance is uncontested and a matter of public record — but also that the underlying case would have succeeded but for the breach, and that any resulting judgment would have been collectible. In other words, you have to win the case your lawyer failed to file, in the context of a different lawsuit, in order to recover.

This is the rule the lawyers wrote. A clear, documented failure of duty — a missing notice of appeal, an attorney scrambling after a vacation, a printer that has stopped responding to records requests — is, on its own, not enough. You have to prove the counterfactual. And the counterfactual is exactly the case the missing notice prevented from being heard.

It is worth adding that review by the Supreme Court of Virginia is discretionary, not a matter of right. The Court grants only a small fraction of the civil petitions filed each year. A malpractice plaintiff in our position would therefore have to prove three counterfactuals stacked on top of each other: that the Court would have agreed to hear the case at all, that it would have ruled in our favor on the merits, and that any resulting judgment would have been collectible. Shuford’s failure prevented even the first of those counterfactuals from being tested.

So no, there is no realistic malpractice suit on the way. Not because the failure isn’t obvious. Because the system is designed to make obvious failures unrecoverable.

What Has Happened Since

After the dismissal, the Virginia ABC told us, in effect: find us a way forward and we will support it. We did. We built a per-location licensing pathway that addresses the concerns the Court of Appeals identified, and an Administrative Law Judge (ALJ) agreed that the pathway gives the ABC what its statute requires.

The ABC is now appealing its own ALJ. I covered that move — and the broader claim of “plenary power” the agency is using to overturn its own findings — in my October post. I won’t re-litigate it here. I’ll only note that an agency that asks for a path forward, receives one, sees it ratified by its own judge, and then appeals against itself is not behaving like a regulator. It is behaving like a market participant defending its share — which, given that the ABC is also Virginia’s largest alcohol retailer, is not as ironic as it sounds.

The Wind Is Shifting

Two days ago, the Sixth Circuit Court of Appeals issued a unanimous 3-0 ruling in Block v. Canepa finding Ohio’s ban on out-of-state retailer wine shipments unconstitutional and remanding the case for the district court to actually demonstrate a public health justification — rather than simply invoking the three-tier system as a magic word. It is, in the words of one industry observer, “a tiny pin that eventually brings down the entire three-tier system in some states.” A similar Arizona case is pending before the Supreme Court.

Vinoshipper’s path forward — whether through Virginia’s own administrative process, the courts, or the General Assembly — has not narrowed. It has widened. And our position on what a workable national framework looks like has been on the record for two years in the National Direct Shipping Bill of Rights, supported by more than 150 producers and organizations across the country.

What I will not let stand is the suggestion that Virginia prevailed on the merits. They did not. The appeal was dismissed because of an unforgivable procedural failure by counsel since terminated, compounded by a printer that has refused to account for its role and an attorney malpractice doctrine that makes that failure functionally unrecoverable. Those are facts. They belong on the record. And now they are.

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