Total Wine Futures - Nondelivery of '15 VCC - Happy Ending!

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Ian Dorin
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Re: Total Wine Futures - Nondelivery of '15 VCC

#51 Post by Ian Dorin » October 1st, 2018, 1:08 pm

Jayson Cohen wrote:
September 30th, 2018, 2:02 pm
Whether TW violated a contract as a legal matter depends on what the contract says. Which none of us know. That may be a different proposition than what TW should have done as an accommodation as a matter of customer service.
Not to sound snarky with you personally as I'm purely picking up on something you said, but paying for something, and not delivering it is illegal.

I hate to disparage another retailer, as it's not very becoming, but the fact that they didn't properly account for your case in whatever mistake they made, and then not making good on it....it's just completely wrong on every level. For a company of that size to 1) not have a state of the art inventory system and 2) not have enough clout with their suppliers (one of whom they apparently working directly with!) to get you a case at the right price to cover you is purely mind blowing. I know how easy this is to fix, and the fact that they didn't says one thing.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#52 Post by Mark Golodetz » October 1st, 2018, 1:12 pm

I think they figure most people won’t kick up too much of a fuss, but if you yell loudly enough they will probably do something. The OP did some damage by starting this thread; and I am glad he did.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#53 Post by Greg K » October 1st, 2018, 1:34 pm

Ian Dorin wrote:
October 1st, 2018, 1:08 pm
Jayson Cohen wrote:
September 30th, 2018, 2:02 pm
Whether TW violated a contract as a legal matter depends on what the contract says. Which none of us know. That may be a different proposition than what TW should have done as an accommodation as a matter of customer service.
Not to sound snarky with you personally as I'm purely picking up on something you said, but paying for something, and not delivering it is illegal.
The failure to abide by the terms of the contract is not a crime - otherwise every single builder who has done renovations on my parents' house would in prison today.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#54 Post by Jayson Cohen » October 1st, 2018, 2:00 pm

Ian Dorin wrote:
October 1st, 2018, 1:08 pm
Jayson Cohen wrote:
September 30th, 2018, 2:02 pm
Whether TW violated a contract as a legal matter depends on what the contract says. Which none of us know. That may be a different proposition than what TW should have done as an accommodation as a matter of customer service.
Not to sound snarky with you personally as I'm purely picking up on something you said, but paying for something, and not delivering it is illegal.

I hate to disparage another retailer, as it's not very becoming, but the fact that they didn't properly account for your case in whatever mistake they made, and then not making good on it....it's just completely wrong on every level. For a company of that size to 1) not have a state of the art inventory system and 2) not have enough clout with their suppliers (one of whom they apparently working directly with!) to get you a case at the right price to cover you is purely mind blowing. I know how easy this is to fix, and the fact that they didn't says one thing.
What I said is correct. People can agree to a variety of terms relating to purchase of goods to be delivered in the future, and the devil is in the details. I’m fairly certain the OP entered into a formal contract with TW, and whether TW breached depends on what the contract says. If the contract lacked certain terms that relate to the failure to deliver the product, then there are background rules of law that may vary by State (in the US) that would kick in. In the US however it is generally difficult to force specific performance of a contract although in this case where a very specific non-fungible good was involved, that may be possible - don’t know.

But contract is not the only possible theory of legal recovery one could consider—there would be various common law, equitable, and possibly statutory causes of (civil) action that may or may not apply under the circumstances.

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Re: Total Wine Futures - Nondelivery of '15 VCC

#55 Post by J a y H a c k » October 1st, 2018, 3:16 pm

J.Durham wrote:
September 30th, 2018, 7:51 am
Victor Hong wrote:
September 29th, 2018, 2:15 pm
What was the explanation if any?
Nope. Just boiler plate statement that they couldn’t get the wine. And I hadn’t just paid 50% deposit, but the whole bill

My first choice was to move to the 16 vintage, but that option was denied.
[stirthepothal.gif] Unfortunately, you are not the first, and will probably not be the last, to report this story on wine futures purchases. Bad sales behavior is rampant in the industry. Unfortunately, there are a lot of industry apologists on this BB who will give you lots of excuses and justifications. I take the opposite view. As a legal matter, you entered into a contract to purchase the wine. You satisfied all of your obligations under that contract and they did not deliver. Standard legal damage claim IS NOT for you to get your money back. The damage claim is the cost to cover - the cost to buy replacement wine of the same producer and vintage minus what you agreed to pay to them.

This happened to me once with a 2000 D'Issan futures purchase when the scores went up dramatically when it was in bottle. The store said they couldn't get the wine. My speech went like this, "You are full of shit and you know it and I know it. The wine was sold to someone else at a higher price and you are just going to stiff me on the deal. Here is how this is going to go. I will give you X [I don't remember but it was multiple months] to find the wine and deliver it to be at the agreed price. If not, I will place a call to the local alcohol regulators and tell them what happened and let them deal with you."

About a month later they had the wine for me.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#56 Post by Karl F » October 1st, 2018, 3:38 pm

Good for you Jay!
That's exactly how this needs to be handled.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#57 Post by Victor Hong » October 1st, 2018, 3:57 pm

My suggestion is that the company re-name itself to Partial Wine.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#58 Post by ky1em!ttskus » October 1st, 2018, 6:54 pm

Victor Hong wrote:
October 1st, 2018, 3:57 pm
My suggestion is that the company re-name itself to Partial Wine.
Nice. [cheers.gif]

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Re: Total Wine Futures - Nondelivery of '15 VCC

#59 Post by Jeff Leve » October 1st, 2018, 10:05 pm

Tom Reddick wrote:
September 30th, 2018, 3:33 pm
Mark Golodetz wrote:
September 30th, 2018, 1:48 pm
alan weinberg wrote:
September 30th, 2018, 9:06 am
They should have bought on open market and made good your paid and confirmed purchase.
+1. If theycan’t Find the wines stateside Total wine is in contact with the European trade. I gather you don’t have much time, but you were sold wine as a future on the basis that you had locked wine in at a certain price. Now they are reneging on the contract. You are not only owed the original cost but any benefits that the early payment entitles you too.
Actually, Total Wine has a direct import relationship with Vieux Chateau Certan.
Sorry, but that is not true. If the chateau sells through the Place de Bordeaux. Like every other retailer, wholesaler etc., they are required to buy the wine through the negociant system. From there, they can direct import all of the wines they buy.

Josh... The problem is, it is harder to make large chains follow through. They owe you the wine. But there is not much you can do it about it, except blast them here, Facebook, Twitter etc and show them the links, telling them this bad press will continue, unless you receive your wine, or at least have it replaced with the 2016. That is a reasonable solution you should push for. If they placed the order, they should get the wine. But there is just not that much leverage you can exert. You can also report this to Winesearcher. If others have the same issue with TW, and also report it to Winesearcher, they will have a problem on their hands.

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Re: Total Wine Futures - Nondelivery of '15 VCC

#60 Post by Tom Reddick » October 1st, 2018, 10:16 pm

Good evening Jeff- my information is based on Total Wine's claim, and their indication on their website for all VCC listings, that they have a direct importing relationship with VCC, among other wineries. I am referring to the "Winery Direct" logo.

Yes- that does mean there are intermediary entities abroad for channeling purchases, and I have no knowledge to suggest some parent company of TW has an ownership stake in those entities- but the representation is that Total Wine has direct relationships with the wineries themselves. And that is why I gave the advice I did.

As you know, when Diageo got out of the game- things got very complicated when it comes to Bordeaux deliveries. Total Wine is doing a degree of volume such that they have effectively become a replacement for Diageo save that there is a wider range of players in the game overall. That is one reason I am so concerned about this post and others.

But yes- getting into the details of order flow, I have no reason to believe they are circumventing the process in Europe. Still, neither did Diageo and yet they always delivered on futures, and in fact even on their pre-arrival program I am not aware of any substantial issues. And I would further note that I and others I know have in the past dealt directly with chateaux and run everything through the system. Having to do that does not excuse TW from their representations of selling futures as well as having direct relationships which very much implies they will deliver on their promises.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#61 Post by Jeff Leve » October 1st, 2018, 10:38 pm

Tom Reddick wrote:
October 1st, 2018, 10:16 pm
Good evening Jeff- my information is based on Total Wine's claim, and their indication on their website for all VCC listings, that they have a direct importing relationship with VCC, among other wineries. I am referring to the "Winery Direct" logo.
Hey Tom, I have no idea what they are implying with their bloviating. Frankly, it is meaningless.

Today, they and other large merchants, even single store retailers Direct Import from BDX. But with few exceptions, they all need to procure their wine through the Negociant system. So, they, in essence, have a direct importing relationship with every chateau in Bordeaux they sell :)

There is no valid excuse or reason for not fulfilling the order from Josh. Not being a lawyer, there was an offer, acceptance and now they are refusing to perform.

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Re: Total Wine Futures - Nondelivery of '15 VCC

#62 Post by Mark Golodetz » October 2nd, 2018, 5:15 am

The Thienpoint family also own a negotiant house, so it is possible to have a “direct” relationship between Total Wine and a chateau. I would say deliberately confusing but not untrue.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#63 Post by Ian Dorin » October 2nd, 2018, 10:05 am

Jayson Cohen wrote:
October 1st, 2018, 2:00 pm
What I said is correct. People can agree to a variety of terms relating to purchase of goods to be delivered in the future, and the devil is in the details. I’m fairly certain the OP entered into a formal contract with TW, and whether TW breached depends on what the contract says. If the contract lacked certain terms that relate to the failure to deliver the product, then there are background rules of law that may vary by State (in the US) that would kick in. In the US however it is generally difficult to force specific performance of a contract although in this case where a very specific non-fungible good was involved, that may be possible - don’t know.

But contract is not the only possible theory of legal recovery one could consider—there would be various common law, equitable, and possibly statutory causes of (civil) action that may or may not apply under the circumstances.
OK, so I'm not a lawyer at all, but if I'm reading this correctly, all I have to do is cover my a$$ with language that says if we take your money up front, and can't deliver it, tough cookies?
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Re: Total Wine Futures - Nondelivery of '15 VCC

#64 Post by Neal.Mollen » October 2nd, 2018, 10:17 am

Ian Dorin wrote:
October 2nd, 2018, 10:05 am
Jayson Cohen wrote:
October 1st, 2018, 2:00 pm
What I said is correct. People can agree to a variety of terms relating to purchase of goods to be delivered in the future, and the devil is in the details. I’m fairly certain the OP entered into a formal contract with TW, and whether TW breached depends on what the contract says. If the contract lacked certain terms that relate to the failure to deliver the product, then there are background rules of law that may vary by State (in the US) that would kick in. In the US however it is generally difficult to force specific performance of a contract although in this case where a very specific non-fungible good was involved, that may be possible - don’t know.

But contract is not the only possible theory of legal recovery one could consider—there would be various common law, equitable, and possibly statutory causes of (civil) action that may or may not apply under the circumstances.
OK, so I'm not a lawyer at all, but if I'm reading this correctly, all I have to do is cover my a$$ with language that says if we take your money up front, and can't deliver it, tough cookies?
It is called freedom of contract. You can enter into an agreement where Total promises only to use its best reasonable efforts and to refund if the wine turns out to be unavailable on defined terms. So yeah, if that is what the deal says. I doubt it does though.

To the contraty:
Why should you buy Bordeaux Futures from Concierge Sales? Because no other retailer offers all of the advantages that we have:



We guarantee delivery of your wines - We are an established company, with over 150 stores nationwide and more opening every year. Our customers come first and the delivery of your wines is our top priority.



We offer some of the lowest prices available in the United States - Total Wine & More is acutely aware of the market and will work hard to pass along the best pricing available to us.



Just 50% down - We are the only retailer that offers this in the country. Everyone else requires a 100% payment up front for their futures. This deposit will reserve your wines until they are released by the châteaux in the fall of 2018 or spring of 2019.



No minimum purchase, no bottle markup - Your order may be as small as one bottle, and you may reserve your choices in any of four sizes (as available from the Chateau) – 375ml, standard 750ml, 1.5L or 3L – with no inflated markup for non-standard sizes.



No shipping fee - Your wines will be delivered to your preferred Total Wine & More store.


https://concierge.totalwine.com/how-it-works
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Re: Total Wine Futures - Nondelivery of '15 VCC

#65 Post by J a y H a c k » October 2nd, 2018, 11:11 am

WARNING: Lawyer's thread drift.
Neal.Mollen wrote:
October 2nd, 2018, 10:17 am
. . . best reasonable efforts . . .
I once negotiated a contract in which the other side offered that phrase. I thought it was ridiculous so I had one of those junior associates that we always make fun of find me all the cases decided by the courts of New York in which that phrase was used or analyzed by the court. ANSWER: NONE. The phrase appears once, and that is a quotation from a contract not otherwise relevant to the decision. It's either best efforts or reasonable efforts, but can't be both, at least not in New York.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#66 Post by Mark Golodetz » October 2nd, 2018, 12:21 pm

Looks like they have absolutely no choice but to go out into the market place and secure you your case. Coincidentally I do happen to have a case coming in, and I will sell to our friends at Total for $500 a bottle.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#67 Post by Ian Dorin » October 2nd, 2018, 12:50 pm

Neal.Mollen wrote:
October 2nd, 2018, 10:17 am
To the contraty:
Why should you buy Bordeaux Futures from Concierge Sales? Because no other retailer offers all of the advantages that we have:



We guarantee delivery of your wines - We are an established company, with over 150 stores nationwide and more opening every year. Our customers come first and the delivery of your wines is our top priority.



We offer some of the lowest prices available in the United States - Total Wine & More is acutely aware of the market and will work hard to pass along the best pricing available to us.



Just 50% down - We are the only retailer that offers this in the country. Everyone else requires a 100% payment up front for their futures. This deposit will reserve your wines until they are released by the châteaux in the fall of 2018 or spring of 2019.



No minimum purchase, no bottle markup - Your order may be as small as one bottle, and you may reserve your choices in any of four sizes (as available from the Chateau) – 375ml, standard 750ml, 1.5L or 3L – with no inflated markup for non-standard sizes.



No shipping fee - Your wines will be delivered to your preferred Total Wine & More store.


https://concierge.totalwine.com/how-it-works
Not only do they guarantee, but they also throw their entire reputation on the line, and still didn't deliver. Unreal.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#68 Post by Kasey Dubler » October 2nd, 2018, 1:01 pm

I just recently started buying wine futures, so this has been a very helpful thread to me. I still plan on buying wines on future, but I now know to avoid Total Wine.

Thank you for letting everybody know!

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Re: Total Wine Futures - Nondelivery of '15 VCC

#69 Post by Brian G r a f s t r o m » October 2nd, 2018, 1:02 pm

Oh boy.

Yeah, now seeing those terms spelled-out, I'd be asking them, What part of "guarantee delivery" do you not understand?!?
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Re: Total Wine Futures - Nondelivery of '15 VCC

#70 Post by Alan Gottlieb » October 2nd, 2018, 2:21 pm

To the lawyers

Can't one go to small claims court sue them and ask to pay the difference between what they charged and you having to source the wines for a higher price. Cost is minimal They will not want to hassle with this

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Re: Total Wine Futures - Nondelivery of '15 VCC

#71 Post by John Glas » October 2nd, 2018, 2:44 pm

I know every market is different. The only thing I would buy from them is wines under $20. Minneapolis has a lot of really good independent shops that caring interesting wines. Total wine over $20 in our market is not competitive at all and their sales people are terrible.

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Re: Total Wine Futures - Nondelivery of '15 VCC

#72 Post by Jim F » October 2nd, 2018, 2:49 pm

Has anyone copied this thread and sent it over to the TW concierge malbox? OP? Sure makes me reluctant to use them....
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Re: Total Wine Futures - Nondelivery of '15 VCC

#73 Post by Ian Dorin » October 2nd, 2018, 3:32 pm

Jim F wrote:
October 2nd, 2018, 2:49 pm
Has anyone copied this thread and sent it over to the TW concierge malbox? OP? Sure makes me reluctant to use them....
Despite ALL the data Todd can spew, you wouldn't believe how many industry people put zero stock in this site. It's fascinating.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#74 Post by Jim Brennan » October 2nd, 2018, 3:46 pm

Victor Hong wrote:
October 1st, 2018, 3:57 pm
My suggestion is that the company re-name itself to Partial Wine.
Sounds more like Maybe Wine, Maybe Not Wine.

Or maybe No Wine For You.

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Re: Total Wine Futures - Nondelivery of '15 VCC

#75 Post by Chr!s G|@rn3r » October 2nd, 2018, 3:49 pm

Jim Brennan wrote:
October 2nd, 2018, 3:46 pm
Victor Hong wrote:
October 1st, 2018, 3:57 pm
My suggestion is that the company re-name itself to Partial Wine.
Sounds more like Maybe Wine, Maybe Not Wine.

Or maybe No Wine For You.
Maybe we should focus on changing the “wine” part of the name, since that is the part that is missing in all of this mess. “Total Crock”?

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Re: Total Wine Futures - Nondelivery of '15 VCC

#76 Post by ky1em!ttskus » October 2nd, 2018, 3:59 pm

Ian Dorin wrote:
October 2nd, 2018, 3:32 pm
Jim F wrote:
October 2nd, 2018, 2:49 pm
Has anyone copied this thread and sent it over to the TW concierge malbox? OP? Sure makes me reluctant to use them....
Despite ALL the data Todd can spew, you wouldn't believe how many industry people put zero stock in this site. It's fascinating.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#77 Post by Yao C » October 2nd, 2018, 4:04 pm

Ian Dorin wrote:
October 2nd, 2018, 3:32 pm
Jim F wrote:
October 2nd, 2018, 2:49 pm
Has anyone copied this thread and sent it over to the TW concierge malbox? OP? Sure makes me reluctant to use them....
Despite ALL the data Todd can spew, you wouldn't believe how many industry people put zero stock in this site. It's fascinating.
Well I was on the fence about using Total for futures and this thread moved me firmly into f*ck no territory

But seriously I imagine it's not informed consumers that TW wants to serve; we're probably more trouble than we're worth
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Re: Total Wine Futures - Nondelivery of '15 VCC

#78 Post by Jim Brennan » October 2nd, 2018, 5:31 pm

This isn't like wine generally where the vast majority of "wine drinkers" are buy crap like Apothic Red and Cupcake from the selves of the local supermarket, or at TGI Fridays.

Once you get into the world of selling "futures", we become a notable component of the crowd they're interested in.

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Re: Total Wine Futures - Nondelivery of '15 VCC

#79 Post by Jayson Cohen » October 2nd, 2018, 6:37 pm

Neal.Mollen wrote:
October 2nd, 2018, 10:17 am
Ian Dorin wrote:
October 2nd, 2018, 10:05 am
Jayson Cohen wrote:
October 1st, 2018, 2:00 pm
What I said is correct. People can agree to a variety of terms relating to purchase of goods to be delivered in the future, and the devil is in the details. I’m fairly certain the OP entered into a formal contract with TW, and whether TW breached depends on what the contract says. If the contract lacked certain terms that relate to the failure to deliver the product, then there are background rules of law that may vary by State (in the US) that would kick in. In the US however it is generally difficult to force specific performance of a contract although in this case where a very specific non-fungible good was involved, that may be possible - don’t know.

But contract is not the only possible theory of legal recovery one could consider—there would be various common law, equitable, and possibly statutory causes of (civil) action that may or may not apply under the circumstances.
OK, so I'm not a lawyer at all, but if I'm reading this correctly, all I have to do is cover my a$$ with language that says if we take your money up front, and can't deliver it, tough cookies?
It is called freedom of contract. You can enter into an agreement where Total promises only to use its best reasonable efforts and to refund if the wine turns out to be unavailable on defined terms. So yeah, if that is what the deal says. I doubt it does though.

To the contraty:
Why should you buy Bordeaux Futures from Concierge Sales? Because no other retailer offers all of the advantages that we have:



We guarantee delivery of your wines - We are an established company, with over 150 stores nationwide and more opening every year. Our customers come first and the delivery of your wines is our top priority.



We offer some of the lowest prices available in the United States - Total Wine & More is acutely aware of the market and will work hard to pass along the best pricing available to us.



Just 50% down - We are the only retailer that offers this in the country. Everyone else requires a 100% payment up front for their futures. This deposit will reserve your wines until they are released by the châteaux in the fall of 2018 or spring of 2019.



No minimum purchase, no bottle markup - Your order may be as small as one bottle, and you may reserve your choices in any of four sizes (as available from the Chateau) – 375ml, standard 750ml, 1.5L or 3L – with no inflated markup for non-standard sizes.



No shipping fee - Your wines will be delivered to your preferred Total Wine & More store.


https://concierge.totalwine.com/how-it-works
There’s the teaser. And then there’s the contract itself that likely says all prior oral and written representations are null and void, and the contract is the entire agreement between the parties. Still if the agreement doesn’t align with this quoted teaser, TW could open itself to other liability, like false advertising. I just don’t know.

Yes, us lawyers are annoying folks.

BUT to answer Ian’s question, there are other possible legal and equitable remedies in principle even if there is technically no breach (which I don’t know if there was or wasn’t). Those other possible remedies again may depend on what the actual contract says.

Practically Tom’s idea to go to VCC and Jay’s vision of the strong arm credible threat seem like the best courses of action. Even if TC gave the money back.

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Re: Total Wine Futures - Nondelivery of '15 VCC

#80 Post by Alan Rath » October 2nd, 2018, 7:03 pm

Jayson Cohen wrote:
October 2nd, 2018, 6:37 pm
Yes, us lawyers are annoying folks.
I've been thinking a lot lately why the country is so screwed up. This occurred to me as one possible tiny little reason neener
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Re: Total Wine Futures - Nondelivery of '15 VCC

#81 Post by Alan Eden » October 2nd, 2018, 7:19 pm

Why not just hassle TW until they are sick of it, find the email of every exec you can find then phone or email until they make good, make their lives miserable. They will make good just to get rid of you. Ask at the store for the corporate directory and go for it, make special effort to find finance guys, compliance guys and general counsel these people cannot ignore stiffing customers. Just be thick skinned as you need to be.

Start here https://www.totalwine.com/about-us/our-leadership

Then here https://www.totalwine.com/about-us/board-of-directors

Believe me they will make good
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Re: Total Wine Futures - Nondelivery of '15 VCC

#82 Post by Mark Golodetz » October 2nd, 2018, 7:43 pm

Edited for politics. Warning issued
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Re: Total Wine Futures - Nondelivery of '15 VCC

#83 Post by Alan Eden » October 2nd, 2018, 7:54 pm

Most of them are on linked in so easy to find. David Trone one of the owners is running for congress so hassle him officially !!
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Re: Total Wine Futures - Nondelivery of '15 VCC

#84 Post by Neal.Mollen » October 3rd, 2018, 4:30 am

Jayson Cohen wrote:
October 2nd, 2018, 6:37 pm

There’s the teaser. And then there’s the contract itself that likely says all prior oral and written representations are null and void, and the contract is the entire agreement between the parties. Still if the agreement doesn’t align with this quoted teaser, TW could open itself to other liability, like false advertising. I just don’t know.

Yes, us lawyers are annoying folks.

BUT to answer Ian’s question, there are other possible legal and equitable remedies in principle even if there is technically no breach (which I don’t know if there was or wasn’t). Those other possible remedies again may depend on what the actual contract says.

Practically Tom’s idea to go to VCC and Jay’s vision of the strong arm credible threat seem like the best courses of action. Even if TC gave the money back.
I poked around on heir website for a bit and saw no more extensive agreement. And to be part of the agreement between buyer and seller, there has to be a meeting of the minds, and if they don't make further terms conspicuous it would be hard for them to enforce them.

As someone mentioned above, a trip to small claims court would be illuminating and likely productive.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#85 Post by Robert.A.Jr. » October 3rd, 2018, 4:50 am

Small claims court is a wonderful process. Easy to do, no lawyer necessary. And the filing fee is low. I had a close friend that I encouraged to take on one of the big auto manufacturers, and he crushed them in small claims. Showed up with an easel and 3 poster boards, while the company had their big bad lawyer.

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Re: Total Wine Futures - Nondelivery of '15 VCC

#86 Post by R. Frankel » October 3rd, 2018, 4:58 am

ky1em!ttskus wrote:
October 1st, 2018, 6:54 pm
Victor Hong wrote:
October 1st, 2018, 3:57 pm
My suggestion is that the company re-name itself to Partial Wine.
Nice. [cheers.gif]
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Re: Total Wine Futures - Nondelivery of '15 VCC

#87 Post by A Songeur » October 3rd, 2018, 5:00 am

Surprised they did not repair by now. This story is really damaging for them and they should have reacted without delay... This is strange
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Re: Total Wine Futures - Nondelivery of '15 VCC

#88 Post by Dennis Borczon » October 3rd, 2018, 5:05 am

J a y H a c k wrote:
October 1st, 2018, 3:16 pm
J.Durham wrote:
September 30th, 2018, 7:51 am
Victor Hong wrote:
September 29th, 2018, 2:15 pm
What was the explanation if any?
Nope. Just boiler plate statement that they couldn’t get the wine. And I hadn’t just paid 50% deposit, but the whole bill

My first choice was to move to the 16 vintage, but that option was denied.
[stirthepothal.gif] Unfortunately, you are not the first, and will probably not be the last, to report this story on wine futures purchases. Bad sales behavior is rampant in the industry. Unfortunately, there are a lot of industry apologists on this BB who will give you lots of excuses and justifications. I take the opposite view. As a legal matter, you entered into a contract to purchase the wine. You satisfied all of your obligations under that contract and they did not deliver. Standard legal damage claim IS NOT for you to get your money back. The damage claim is the cost to cover - the cost to buy replacement wine of the same producer and vintage minus what you agreed to pay to them.

This happened to me once with a 2000 D'Issan futures purchase when the scores went up dramatically when it was in bottle. The store said they couldn't get the wine. My speech went like this, "You are full of shit and you know it and I know it. The wine was sold to someone else at a higher price and you are just going to stiff me on the deal. Here is how this is going to go. I will give you X [I don't remember but it was multiple months] to find the wine and deliver it to be at the agreed price. If not, I will place a call to the local alcohol regulators and tell them what happened and let them deal with you."

About a month later they had the wine for me.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#89 Post by Mark Golodetz » October 3rd, 2018, 5:07 am

Pity there is no way of accessing customer list of people who have not received futures. Class action suit, millions of dollars champagne.gif
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Re: Total Wine Futures - Nondelivery of '15 VCC

#90 Post by Brian Gilp » October 3rd, 2018, 5:17 am

Neal.Mollen wrote:
October 3rd, 2018, 4:30 am
Jayson Cohen wrote:
October 2nd, 2018, 6:37 pm

There’s the teaser. And then there’s the contract itself that likely says all prior oral and written representations are null and void, and the contract is the entire agreement between the parties. Still if the agreement doesn’t align with this quoted teaser, TW could open itself to other liability, like false advertising. I just don’t know.

Yes, us lawyers are annoying folks.

BUT to answer Ian’s question, there are other possible legal and equitable remedies in principle even if there is technically no breach (which I don’t know if there was or wasn’t). Those other possible remedies again may depend on what the actual contract says.

Practically Tom’s idea to go to VCC and Jay’s vision of the strong arm credible threat seem like the best courses of action. Even if TC gave the money back.
I poked around on heir website for a bit and saw no more extensive agreement. And to be part of the agreement between buyer and seller, there has to be a meeting of the minds, and if they don't make further terms conspicuous it would be hard for them to enforce them.

As someone mentioned above, a trip to small claims court would be illuminating and likely productive.
Bui there are terms and conditions on their website. I copied part of it below. Emphasis added by me.
Validating Your Order
After you place an order using our shopping cart, we will check the information you give us for validity and compliance with state laws and regulations, by verifying your method of payment or shipping address. We reserve the right to reject any order you place with us, and/or to limit quantities on any order, without giving any reason. If we reject your order, we will attempt to notify you using the e-mail address you have given us with the order. Your credit or debit card will normally not be charged if we reject an order, but we will process a refund if the charge has been made against your card.

Order Acceptance/Confirmation
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. The Total Wine & More Web site reserves the right at any time after receipt of your order to accept or decline your order for any reason.

Return Policy
All sales made through our Web site are subject to our return policy. For a complete description and explanation of our return policy, please see the section about Returns in our Customer Service section.

Order Limitations
We reserve the right to reject any order you place with us and/or or to limit quantities in any order, without giving any reason or for no reason, if we determine it is in our best interests to do so. If we reject your order or reduce the quantities of any items in your order, we will attempt to notify you using the e-mail and/or billing address you gave us when you placed the order.

Order Limitations/Limited Quantities
We may, at our own discretion, limit or cancel quantities purchased per person, per household or per order. We also reserve the right to reject any order you place with us. These restrictions may include orders placed by the same Web site account, the same credit card, and orders that use the same billing and/or shipping address. In the event we make a change to an order, we will attempt to notify you by contacting the e-mail and/or billing address provided at the time the order was made. We reserve the right to limit or prohibit sales to dealers.

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Re: Total Wine Futures - Nondelivery of '15 VCC

#91 Post by Neal.Mollen » October 3rd, 2018, 5:38 am

Thanks Brian. Can you post a link?
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Re: Total Wine Futures - Nondelivery of '15 VCC

#93 Post by Neal.Mollen » October 3rd, 2018, 6:06 am

Thanks. I'd say two things.

1. This "terms and conditions" page is not on, or linked to, the bdx futures page. I did not click through all the way to the end of the purchase process, of course, and it is possible that a link appears later in the purchase process, but the futures page has its own "how it works" page and these limitations aren't there.

2. There is a lot of language in what you posted about the right to limit or cancel "orders," but it seems to me that the OP is not about a canceled "order" but the non-delivery of a "purchase." That is, Total reserved the right to "reject any order you place with us, and/or to limit quantities on any order, without giving any reason," but they continue that "[y]our credit or debit card will normally not be charged if we reject an order, but we will process a refund if the charge has been made against your card." Here, they hit the card for the agreed 50% and kept it; at that point, it ceased to be an "order" subject to rejection.

Anyway, that would be my argument, both to Total and to a small claims judge, and yes, I most definitely would take this to small claims court. Because the wine is not unique, specific performance (delivery of the wine) is not likely to be an available remedy, but if you bought the wine elsewhere I think it very likely that they would be liable for the difference in price paid.

I hasten to add, I have done zero research w/r/t the law of any jurisdiction, am not offering legal, so much as linguistic, advice, and offer no expressed warranties and none are implied. [cheers.gif]
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Re: Total Wine Futures - Nondelivery of '15 VCC

#94 Post by YacobovE » October 3rd, 2018, 6:11 am

Dennis Borczon wrote:
October 3rd, 2018, 5:05 am
J a y H a c k wrote:
October 1st, 2018, 3:16 pm
J.Durham wrote:
September 30th, 2018, 7:51 am


Nope. Just boiler plate statement that they couldn’t get the wine. And I hadn’t just paid 50% deposit, but the whole bill

My first choice was to move to the 16 vintage, but that option was denied.
[stirthepothal.gif] Unfortunately, you are not the first, and will probably not be the last, to report this story on wine futures purchases. Bad sales behavior is rampant in the industry. Unfortunately, there are a lot of industry apologists on this BB who will give you lots of excuses and justifications. I take the opposite view. As a legal matter, you entered into a contract to purchase the wine. You satisfied all of your obligations under that contract and they did not deliver. Standard legal damage claim IS NOT for you to get your money back. The damage claim is the cost to cover - the cost to buy replacement wine of the same producer and vintage minus what you agreed to pay to them.

This happened to me once with a 2000 D'Issan futures purchase when the scores went up dramatically when it was in bottle. The store said they couldn't get the wine. My speech went like this, "You are full of shit and you know it and I know it. The wine was sold to someone else at a higher price and you are just going to stiff me on the deal. Here is how this is going to go. I will give you X [I don't remember but it was multiple months] to find the wine and deliver it to be at the agreed price. If not, I will place a call to the local alcohol regulators and tell them what happened and let them deal with you."

About a month later they had the wine for me.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#95 Post by Brian Gilp » October 3rd, 2018, 6:39 am

1. This "terms and conditions" page is not on, or linked to, the bdx futures page. I did not click through all the way to the end of the purchase process, of course, and it is possible that a link appears later in the purchase process, but the futures page has its own "how it works" page and these limitations aren't there.
The link is on the bottom of every screen and all go to the same terms and conditions
2. There is a lot of language in what you posted about the right to limit or cancel "orders," but it seems to me that the OP is not about a canceled "order" but the non-delivery of a "purchase." That is, Total reserved the right to "reject any order you place with us, and/or to limit quantities on any order, without giving any reason," but they continue that "[y]our credit or debit card will normally not be charged if we reject an order, but we will process a refund if the charge has been made against your card." Here, they hit the card for the agreed 50% and kept it; at that point, it ceased to be an "order" subject to rejection.
The futures page refers to each of them as orders "This offer is made pre-arrival, with wines estimated to be delivered to your preferred store in 2020, depending on the release by the chateau. To secure your order, a 50% payment made by credit card is required."

I am not saying its right.

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Re: Total Wine Futures - Nondelivery of '15 VCC

#96 Post by YacobovE » October 3rd, 2018, 6:47 am

Brian Gilp wrote:
October 3rd, 2018, 6:39 am
1. This "terms and conditions" page is not on, or linked to, the bdx futures page. I did not click through all the way to the end of the purchase process, of course, and it is possible that a link appears later in the purchase process, but the futures page has its own "how it works" page and these limitations aren't there.
The link is on the bottom of every screen and all go to the same terms and conditions
2. There is a lot of language in what you posted about the right to limit or cancel "orders," but it seems to me that the OP is not about a canceled "order" but the non-delivery of a "purchase." That is, Total reserved the right to "reject any order you place with us, and/or to limit quantities on any order, without giving any reason," but they continue that "[y]our credit or debit card will normally not be charged if we reject an order, but we will process a refund if the charge has been made against your card." Here, they hit the card for the agreed 50% and kept it; at that point, it ceased to be an "order" subject to rejection.
The futures page refers to each of them as orders "This offer is made pre-arrival, with wines estimated to be delivered to your preferred store in 2020, depending on the release by the chateau. To secure your order, a 50% payment made by credit card is required."

I am not saying its right.
And how do you reconcile that with the page describing the Bdx futures program as guaranteed wine after a customer puts a 50% deposit down?
Last edited by YacobovE on October 3rd, 2018, 7:07 am, edited 1 time in total.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#97 Post by J a y H a c k » October 3rd, 2018, 6:57 am

For all the lawyers out there, I have only one word in response to all the references to the terms and conditions that vary from the advertised guaranty, and the fact that they take your money and have zero contractual obligation to do anything other than give it back:

UDAP.

I guess that's actually four words, six if you count the "or"s.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#98 Post by Greg K » October 3rd, 2018, 7:18 am

J a y H a c k wrote:
October 3rd, 2018, 6:57 am
For all the lawyers out there, I have only one word in response to all the references to the terms and conditions that vary from the advertised guaranty, and the fact that they take your money and have zero contractual obligation to do anything other than give it back:

UDAP.

I guess that's actually four words, six if you count the "or"s.
As a transactional lawyer, I had to google that. [snort.gif]
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Re: Total Wine Futures - Nondelivery of '15 VCC

#99 Post by David_K » October 3rd, 2018, 7:19 am

They failed to deliver for me on some 2014 halves, too. I think it was Barton and Calon-Segur. Offered 750s, but that's not what I ordered. Thanks but no thanks to their futures program.
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Re: Total Wine Futures - Nondelivery of '15 VCC

#100 Post by Neal.Mollen » October 3rd, 2018, 7:27 am

Brian Gilp wrote:
October 3rd, 2018, 6:39 am
1. This "terms and conditions" page is not on, or linked to, the bdx futures page. I did not click through all the way to the end of the purchase process, of course, and it is possible that a link appears later in the purchase process, but the futures page has its own "how it works" page and these limitations aren't there.
The link is on the bottom of every screen and all go to the same terms and conditions
2. There is a lot of language in what you posted about the right to limit or cancel "orders," but it seems to me that the OP is not about a canceled "order" but the non-delivery of a "purchase." That is, Total reserved the right to "reject any order you place with us, and/or to limit quantities on any order, without giving any reason," but they continue that "[y]our credit or debit card will normally not be charged if we reject an order, but we will process a refund if the charge has been made against your card." Here, they hit the card for the agreed 50% and kept it; at that point, it ceased to be an "order" subject to rejection.
The futures page refers to each of them as orders "This offer is made pre-arrival, with wines estimated to be delivered to your preferred store in 2020, depending on the release by the chateau. To secure your order, a 50% payment made by credit card is required."

I am not saying its right.
Well, no the “terms and conditions “ link appears under the heading FOR THE TRADE. No reason for a retail customer even to notice that.

Also, it is an “order” until it is secured with payment. I’d like my chances

And no clue what UDAP means and not interested enough to look.
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