Direct Marketing Association v. Huber

Filing 1

[9844034] Civil case docketed. Preliminary record filed. DATE RECEIVED: 02/28/2011. Fee is due by 03/14/2011 for Roxy Huber. Docketing statement, transcript order form and notice of appearance due 03/14/2011 for Roxy Huber. Notice of appearance due on 03/14/2011 for Direct Marketing Association.

Case 1:10-cv-01546-REB -CBS Document 87

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UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
OFFICE OF THE CLERK
GREGORY C. LANGHAM, CLERK

ROOM A-105
ALFRED A. ARRAJ U.S. COURTHOUSE
901 19TH STREET
DENVER, COLORADO 80294-3589
PHONE [phone]
www.cod.uscourts.gov

February 28, 2011
SEE NOTICE OF ELECTRONIC FILING
RE:

Direct Marketing Association v. Huber

District Court Case No. 10-cv-01546-REB-CBS
Notice of Appeal Filed by Roxy Huber on February 25, 2011
Fee Status: Fees Not Paid
Other Pending Appeals: none
Attached are the following documents for the parties in connection with the notice of appeal: Copy of the notice of
appeal and a copy of the docket sheet. The appellant only is directed to the U.S. Court of Appeals for the 10th Circuit website
(http://www.ca10.uscourts.gov) to obtain the Notice of Transcript Order form, Docketing Statement form and Docketing
Statement Instructions.
The appellant must carefully read the directions provided with the Notice of Transcript Order form. If a transcript
is being ordered, the appellant and the court reporter must complete the Notice of Transcript Order. The appellant must
complete a separate form for each court reporter and/or reporting service, indicating only the dates of the proceedings that
reporter is being requested to transcribe. Please contact the reporter or reporting services directly to obtain information and
make arrangements for the preparation of the necessary transcripts. Instructions and the names, addresses and telephone
numbers for most of the court reporters and reporting services can be found on the attached list.
File one copy of the Notice of Transcript Order with the U.S. District Court on CM/ECF, one copy with the U.S. Court
of Appeals on the Appellate CM/ECF and serve all parties pursuant to Fed. R. App. P. 10. If no transcript is being ordered,
or all necessary transcripts are presently on file, the appellant must complete the Notice of Transcript Order, including Section
A and file it as indicated above. If the entire transcript is not ordered by the appellant, the appellee should refer to Fed. R.
App. P. 10.
If you have any difficulty accessing the necessary appeal documents please contact the appeals clerk at the U.S.
District Court for the District of Colorado [phone].
Sincerely,
GREGORY C. LANGHAM, Clerk
by s/ B. Reed Deputy Clerk

cc:

Clerk, U.S. Court of Appeals (with copy of docket sheet, copy of notice of appeal and the preliminary record)

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FURTHER INSTRUCTIONS FOR ORDERING TRANSCRIPTS:
Please review the enclosed docket sheet and locate the docket entry for the minutes of the proceedings
you wish to have transcribed. In the entry will be either:
-the name of the court reporter,
-the name of the E.C.R. operator (meaning the proceeding was tape recorded before a District Court Judge),
-an indication of the tape number of the proceedings (meaning the proceeding was tape recorded before a
magistrate judge) or
-“FTR” (meaning the proceeding was digitially recorded before either a District Court Judge or a Magistrate
Judge).
If a name of a court reporter appears, please contact that reporter directly to make arrangements for
the preparation of the transcript. The names, addresses and phone numbers for the court reporters and some
of the contract reporters are on the attached sheet. If the name of the reporter is not on this list, please refer
to the attached certificate of mailing.
If the proceedings was before a District Court Judge (other than Judge Richard P. Matsch) and was
recorded by an E.C.R. operator or FTR, please contact Federal Reporting Service. Their address and phone
number is on the attached list.
If the proceedings was before Judge Richard P. Matsch (either tape recorded (E.C.R) or digitally
recorded (FTR) please contact Kathy Terasaki. Her address and phone number is on the attached list.
If the proceeding was held before a Magistrate Judge and was either tape recorded (E.C.R) or
digitally recorded (FTR) please contact Avery Woods Reporting Service. Their address and phone number
is on the attached list.

Case 1:10-cv-01546-REB -CBS Document 87

COURT REPORTERS
901 19th Street
Denver, Colorado 80294
Suzanne Claar
303-825-8874
Paul Zuckerman
303-629-9285
Gwen Daniel
303-571-4084
Therese Lindblom
303-628-7877
Kara Spitler
303-623-3080
Janet Coppock (fka Morrissey)
303-893-2835
Darlene Martinez
303-296-2008
Tracy Weir
303-298-1207
FTR OPERATOR
Kathy Terasaki
FTR Operator - (FTR-RPM)
901 19th Street
Denver, Colorado 80294
303-335-2095
DISTRICT COURT JUDGE - DIGITAL-FTR
Federal Reporting Service, Inc.
17454 East Asbury Place
Aurora, CO 80013
303-751-2777
MAGISTRATE JUDGE - DIGITAL-FTR
Avery Woods Reporting Service, Inc.
455 Sherman Street, Suite 250
Denver, CO 80203
303-825-6119

Filed 02/28/11 USDC Colorado Page 3 of 3

OTHER COURT REPORTERS
Adrienne Whitlow
8000 E. Girard Apt. 109
Denver, CO 80231
303-695-1121

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APPEAL, NDISPO

U.S. District Court
District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:10-cv-01546-REB -CBS

Direct Marketing Association, The v. Huber
Assigned to: Judge Robert E. Blackburn
Referred to: Magistrate Judge Craig B. Shaffer
Cause: 42:1983 Civil Rights Act

Date Filed: 06/30/2010
Jury Demand: None
Nature of Suit: 950 Constitutional State Statute
Jurisdiction: Federal Question

Plaintiff
Direct Marketing Association, The

represented by George Steven Isaacson
Brann & Isaacson
P.O. Box 3070
184 Main Street
Lewiston, ME 04243-3070
207-786-3566
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED
Matthew Peter Schaefer
Brann & Isaacson
P.O. Box 3070
184 Main Street
Lewiston, ME 04243-3070
207-786-3566
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED

V.
Defendant
Roxy Huber
in her capacity as Executive Director,
Colorado Department of Revenue

represented by Jack M. Wesoky
Colorado Attorney General's OfficeBusiness & Licensing
1525 Sherman Street
5th Floor
Denver, CO 80203
303-866-5512
Email: [e-mail]
ATTORNEY TO BE NOTICED
Karen Michelle McGovern
Colorado Attorney General's Office

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1525 Sherman Street
Denver, CO 80203
303-866-5455
Fax: [phone]
Email: [e-mail]
TERMINATED: 09/27/2010
Melanie J. Snyder
Colorado Attorney General's Office
1525 Sherman Street
Denver, CO 80203
303-866-5273
Email: [e-mail]
ATTORNEY TO BE NOTICED
Robert H. Dodd , Jr.
Colorado Attorney General's OfficeBusiness & Licensing
1525 Sherman Street
5th Floor
Denver, CO 80203
303-866-4589
Fax: [phone]
Email: [e-mail]
TERMINATED: 08/30/2010
Stephanie Lindquist Scoville
Colorado Attorney General's OfficeDepartment of Law
1525 Sherman Street
7th Floor
Denver, CO 80203
303-866-5241
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

06/30/2010

1

COMPLAINT against Roxy Huber ( Filing fee $ 350, Receipt Number
29213) Summons Issued, filed by Direct Marketing Association, The.
(Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(jak, ) (Entered:
06/30/2010)

07/01/2010

2

ORDER REFERRING CASE to Magistrate Judge Craig B. Shaffer, for
non-dispositive matters, by Judge Robert E. Blackburn on 7/1/10.
(rebsec, ) (Entered: 07/01/2010)

07/07/2010

3

ORDER setting a Scheduling Conference on 9/23/2010 at 10:00 a.m., in
Courtroom A 402, by Magistrate Judge Craig B. Shaffer on 7/7/10.

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(cbssec) (Entered: 07/07/2010)
07/09/2010

4

NOTICE of Entry of Appearance by Robert H. Dodd, Jr on behalf of
Roxy Huber (Dodd, Robert) (Entered: 07/09/2010)

07/20/2010

5

SUMMONS Returned Executed by Direct Marketing Association, The.
Roxy Huber served on 7/2/2010, answer due 7/23/2010. (Schaefer,
Matthew) (Entered: 07/20/2010)

07/20/2010

6

CORPORATE DISCLOSURE STATEMENT by Plaintiff Direct
Marketing Association, The.. (Schaefer, Matthew) (Entered: 07/20/2010)

07/20/2010

7

Unopposed MOTION for Extension of Time to File Answer or Otherwise
Respond re 1 Complaint and Leave to Extend Page Limitation by
Defendant Roxy Huber. (Attachments: # 1 Proposed Order (PDF Only))
(Scoville, Stephanie) (Entered: 07/20/2010)

07/20/2010

8

MEMORANDUM regarding 7 Unopposed MOTION for Extension of
Time to File Answer or Otherwise Respond re 1 Complaint and Leave to
Extend Page Limitation filed by Roxy Huber.Motions referred to
Magistrate Judge Craig B. Shaffer by Judge Robert E. Blackburn on
7/20/10. TEXT ONLY ENTRY - NO DOCUMENT ATTACHED
(rebsec, ) (Entered: 07/20/2010)

07/21/2010

9

MINUTE ORDER granting 7 Motion for Extension of Time to Answer or
Otherwise Respond. Defendant has up to and including 7/30/10 to file a
responsive pleading, of no more than forty pages, to Plaintiff's 1
Complaint, by Magistrate Judge Craig B. Shaffer on 7/21/10.TEXT
ONLY ENTRY - NO DOCUMENT ATTACHED (cbssec) (Entered:
07/21/2010)

07/23/2010

10

FIRST AMENDED COMPLAINT against Roxy Huber, filed by Direct
Marketing Association, The.(Isaacson, George) Modified on 7/26/2010 to
note that the document is the First Amended Complaint (sah, ). (Entered:
07/23/2010)

07/26/2010

11

Docket Annotation re: 10 Amended Complaint. Entry modified on
7/26/2010 to note that the document is the First Amended Complaint.
TEXT ONLY ENTRY - NO DOCUMENT ATTACHED (sah, ) (Entered:
07/26/2010)

07/30/2010

12

Unopposed MOTION for Leave to File Excess Pages in connection with
motion for preliminary injunction by Plaintiff Direct Marketing
Association, The. (Attachments: # 1 Proposed Order (PDF Only))
(Schaefer, Matthew) (Entered: 07/30/2010)

07/30/2010

13

MINUTE ORDER granting in part 12 Motion for Leave to File Excess
Pages by Judge Robert E. Blackburn on 7/30/10. Plaintiff shall file their
motion for preliminary injunction that shall not exceed THIRTY (30)
pages. Defendant shall file a response to the motion for preliminary
injunction that shall not exceed THIRTY (30)pages.TEXT ONLY
ENTRY - NO DOCUMENT ATTACHED (rebsec, ) (Entered:
07/30/2010)

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07/30/2010

14

MOTION to Dismiss 10 Plaintiff's First Amended Complaint by
Defendant Roxy Huber. (Attachments: # 1 Exhibit A, # 2 Exhibit B)
(McGovern, Karen) Modified on 8/2/2010 to create linkage (sah2, ).
(Entered: 07/30/2010)

08/13/2010

15

MOTION for Preliminary Injunction with Incorporated Memorandum of
Law by Plaintiff Direct Marketing Association, The. (Attachments: # 1
Exhibit 1, # 2 Exhibit 2)(Isaacson, George) (Entered: 08/13/2010)

08/13/2010

16

DECLARATION of Jerry Cerasale regarding MOTION for Preliminary
Injunction with Incorporated Memorandum of Law 15 by Plaintiff Direct
Marketing Association, The. (Isaacson, George) (Entered: 08/13/2010)

08/13/2010

17

DECLARATION of Jeana M. Petillo regarding MOTION for Preliminary
Injunction with Incorporated Memorandum of Law 15 by Plaintiff Direct
Marketing Association, The. (Attachments: # 1 Exhibit A, # 2 Exhibit B,
# 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)
(Isaacson, George) (Entered: 08/13/2010)

08/13/2010

18

DECLARATION of Kevin Lane Keller regarding MOTION for
Preliminary Injunction with Incorporated Memorandum of Law 15 by
Plaintiff Direct Marketing Association, The. (Attachments: # 1 Exhibit A)
(Isaacson, George) (Entered: 08/13/2010)

08/13/2010

19

DECLARATION of Thomas J. Adler, PhD regarding MOTION for
Preliminary Injunction with Incorporated Memorandum of Law 15 by
Plaintiff Direct Marketing Association, The. (Attachments: # 1 Exhibit A,
# 2 Exhibit B)(Isaacson, George) (Entered: 08/13/2010)

08/13/2010

20

Unopposed MOTION for Extension of Time to File Response/Reply as to
14 MOTION to Dismiss Plaintiff's First Amended Complaint , and for
enlargement of page limitation for opposition by Plaintiff Direct
Marketing Association, The. (Attachments: # 1 Proposed Order (PDF
Only) for unopposed motion)(Schaefer, Matthew) (Entered: 08/13/2010)

08/19/2010

21

MINUTE ORDER. Plaintiffs Unopposed Motion For Extension of Time
and For Leave To Exceed Page Limitation in Opposition To Defendants
Motion To Dismiss Plaintiffs First Amended Complaint 14 , 20 is
GRANTED in part. Plaintiff shall have until 08/27/2010 to file its
response. The brief shall not exceed 36 pages. By Judge Robert E.
Blackburn on 08/19/2010.(sah, ) (Entered: 08/19/2010)

08/25/2010

22

NOTICE of Entry of Appearance by Jack M. Wesoky on behalf of Roxy
Huber (Wesoky, Jack) (Entered: 08/25/2010)

08/27/2010

23

BRIEF in Opposition to 14 MOTION to Dismiss Plaintiff's First Amended
Complaint filed by Plaintiff Direct Marketing Association, The. (Isaacson,
George) (Entered: 08/27/2010)

08/30/2010

24

Unopposed MOTION to Withdraw as Attorney for Defendant by
Defendant Roxy Huber. (Attachments: # 1 Proposed Order (PDF Only))
(Dodd, Robert) (Entered: 08/30/2010)

08/30/2010

25

MEMORANDUM regarding 24 Unopposed MOTION to Withdraw as

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Attorney for Defendant filed by Roxy Huber.Motions referred to
Magistrate Judge Craig B. Shaffer by Judge Robert E. Blackburn on
8/30/10. TEXT ONLY ENTRY - NO DOCUMENT ATTACHED
(rebsec, ) (Entered: 08/30/2010)
08/30/2010

26

MINUTE ORDER granting 24 Motion to Withdraw as Attorney. Attorney
Robert H. Dodd, Jr terminated, by Magistrate Judge Craig B. Shaffer on
8/30/10.TEXT ONLY ENTRY - NO DOCUMENT ATTACHED (cbssec)
(Entered: 08/30/2010)

09/01/2010

27

(WITHDRAWN)Unopposed MOTION for Order to ON DEFENDANTS
UNOPPOSED MOTION 1) FOR LIMITED EXPEDITED DISCOVERY,
2) TO CONSOLIDATE PRELIMINARY INJUNCTION
PROCEEDINGS WITH A TRIAL ON THE MERITS ON PLAINTIFFS
COMMERCE CLAUSE CLAIMS, 3) TO STAY PROCEEDINGS ON
PLAINTIFFS REMAINING CLAIMS, AND 4) IN THE
ALTERNATIVE, FOR AN EXTENSION OF TIME IN WHICH
DEFENDANT MAY RESPOND TO PLAINTIFFS MOTION FOR
PRELIMINARY INJUNCTION AND REPLY IN SUPPORT OF HER
MOTION TO DISMISS by Defendant Roxy Huber. (Attachments: # 1
Proposed Order (PDF Only))(Scoville, Stephanie) Modified on 10/5/2010
pursuant to the Minute Entry dated 10/01/2010 (sah2, ). (Entered:
09/01/2010)

09/16/2010

28

Unopposed MOTION for Extension of Time to File Response/Reply in
Support of her Motion to Dismiss by Defendant Roxy Huber.
(Attachments: # 1 Proposed Order (PDF Only))(Scoville, Stephanie)
(Entered: 09/16/2010)

09/16/2010

29

Proposed Scheduling Order (submitted jointly by the parties) by Plaintiff
Direct Marketing Association, The. (Attachments: # 1 Exhibit A, # 2
Exhibit B)(Schaefer, Matthew) (Entered: 09/16/2010)

09/16/2010

30

NOTICE re 14 MOTION to Dismiss Plaintiff's First Amended Complaint
(Partial Withdrawl of Motion to Dismiss) by Defendant Roxy Huber
(Scoville, Stephanie) (Entered: 09/16/2010)

09/17/2010

31

MINUTE ORDER. Defendants Unopposed Motion For Extension of
Time in Which To Reply in Support of Her Motion To Dismiss 28 filed
09/16/2010, is GRANTED on the terms stated in this order. By Judge
Robert E. Blackburn on 09/17/2010.(sah, ) (Entered: 09/17/2010)

09/20/2010

32

MINUTE ORDER sua sponte resetting the 9/23/10 Scheduling
Conference to 9/24/2010 at 2:30 p.m. in Courtroom A402, pursuant to a
conflict on the court's calendar. All of the deadlines set forth in the Court's
3 Order filed on 7/7/10 remain unchanged, by Magistrate Judge Craig B.
Shaffer on 9/20/10. TEXT ONLY ENTRY - NO DOCUMENT
ATTACHED(cbssec) (Entered: 09/20/2010)

09/21/2010

33

NOTICE of Entry of Appearance of Melanie J. Snyder by Melanie J.
Snyder on behalf of Roxy Huber (Snyder, Melanie) (Entered: 09/21/2010)

09/24/2010

34

COURTROOM MINUTES - Minute Entry for proceedings held before

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Magistrate Judge Craig B. Shaffer: A Scheduling Conference was held on
9/24/2010. ORDERED: A Further Scheduling Conference is set for
10/1/2010 at 08:00 AM before Magistrate Judge Craig B. Shaffer. Out of
town counsel may appear via phone by calling 303.844.2117 at the
scheduled time. (Court Reporter FTR - Linda Kahoe) (cbscd) (Entered:
09/24/2010)
09/27/2010

35

Joint MOTION to Withdraw as Attorney by Defendant Roxy Huber.
(Attachments: # 1 Proposed Order (PDF Only))(McGovern, Karen)
(Entered: 09/27/2010)

09/27/2010

36

MEMORANDUM regarding 35 Joint MOTION to Withdraw as Attorney
filed by Roxy Huber.Motions referred to Magistrate Judge Craig B.
Shaffer by Judge Robert E. Blackburn on 9/27/10. TEXT ONLY ENTRY
- NO DOCUMENT ATTACHED(rebsec, ) (Entered: 09/27/2010)

09/27/2010

37

MINUTE ORDER granting 35 Motion to Withdraw as Attorney. Attorney
Karen Michelle McGovern is terminated as counsel of record, by
Magistrate Judge Craig B. Shaffer on 9/27/10.TEXT ONLY ENTRY NO DOCUMENT ATTACHED (cbssec) (Entered: 09/27/2010)

10/01/2010

38

Proposed Scheduling Order (Plaintiff's Proposal) by Plaintiff Direct
Marketing Association, The. (Schaefer, Matthew) (Entered: 10/01/2010)

10/01/2010

39

Minute Entry for Scheduling Conference held before Magistrate Judge
Craig B. Shaffer on 10/1/2010; Court enters a schedule for resolution of
the Plaintiff's pending Motion for Preliminary Injunction and Incorporated
Memorandum of Law 15 . Counsel for defendants makes an oral motion
to withdraw the Unopposed Motion for Order. The oral motion to
withdraw 27 Defendants' Unopposed Motion for Order is GRANTED and
the motion is WITHDRAWN. See attached document for deadlines.
(Court Reporter FTR - Monique Wiles) (klmcd ) (Entered: 10/04/2010)

10/01/2010

40

SCHEDULING ORDER, by Magistrate Judge Craig B. Shaffer on
10/1/2010. (klmcd ) (Entered: 10/04/2010)

10/01/2010

41

Minute Entry for Telephonic Status Conference proceedings held before
Magistrate Judge Craig B. Shaffer on 10/1/2010; Defendants' Motion 22
to Stay Discovery is GRANTED. Discovery is stayed pending a ruling on
the Defendants' Motion to Dismiss 5 . (Court Reporter FTR - Monique
Wiles) (klmc, ) (Entered: 10/04/2010)

10/04/2010

42

Docket Annotation re: 41 Status Conference, Minute Entry was docketed
in the wrong case. TEXT ONLY ENTRY - NO DOCUMENT
ATTACHED (sah, ) (Entered: 10/04/2010)

10/12/2010

43

MINUTE ORDER setting a Telephonic Discovery Hearing on 10/14/2010
at 2:00 p.m., pursuant to an unopposed request made by counsel for
Defendant. Counsel shall coordinate to create a conference call among
themselves before contacting the court (303.844.2117) at the scheduled
time, by Magistrate Judge Craig B. Shaffer on 10/12/10. TEXT ONLY
ENTRY - NO DOCUMENT ATTACHED(cbssec) (Entered: 10/12/2010)

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10/14/2010

44

COURTROOM MINUTES - Minute Entry for proceedings held before
Magistrate Judge Craig B. Shaffer: A Telephonic Discovery Hearing was
held on 10/14/2010. ORDERED: The court will apply the current Rule 26
that is in effect, WITHOUT PREJUDICE to the Plaintiff's right to
withhold materials that they believe, consistent with the case law, Rule
501, and Rule 26, can be properly withheld. Consistent with Rule 26(b)
(5), the Plaintiff is REQUIRED to provide a privilege log of any materials
that are withheld. The court will allow the parties to decide whether or not
the privilege is properly asserted. By Magistrate Judge Craig B. Shaffer.
(Court Reporter FTR - Linda Kahoe) (cbscd) (Entered: 10/14/2010)

10/28/2010

45

Unopposed MOTION for Extension of Time to Produce Final Expert
Report by Defendant Roxy Huber. (Attachments: # 1 Proposed Order
(PDF Only))(Scoville, Stephanie) (Entered: 10/28/2010)

10/29/2010

46

MEMORANDUM regarding 45 Unopposed MOTION for Extension of
Time to Produce Final Expert Report filed by Roxy Huber.Motions
referred to Magistrate Judge Craig B. Shaffer by Judge Robert E.
Blackburn on 10/29/10. TEXT ONLY ENTRY - NO DOCUMENT
ATTACHED(rebsec, ) (Entered: 10/29/2010)

10/29/2010

47

MINUTE ORDER granting 45 Motion for Extension of Time. Defendant
has up to and including November 15, 2010 in which to produce a final
expert report for its expert on the issue of compliance costs, by Magistrate
Judge Craig B. Shaffer on 10/29/10.TEXT ONLY ENTRY - NO
DOCUMENT ATTACHED (cbssec) (Entered: 10/29/2010)

10/29/2010

48

AMENDED MINUTE ORDER granting 45 Motion for Extension of
Time. Defendant has up to and including November 10, 2010 in which to
produce a final expert report for its expert on the issue of compliance
costs, by Magistrate Judge Craig B. Shaffer on 10/29/10. TEXT ONLY
ENTRY - NO DOCUMENT ATTACHED(cbssec) (Entered: 10/29/2010)

11/08/2010

49

ORDER. This matter is before me on the Plaintiffs Motion for a
Preliminary Injunction and Incorporated Memorandum of Law 15 filed
08/13/2010. The defendants response to this motion is due to be filed on
11/19/2010, and the plaintiffs reply is due to be filed on 11/29/2010. On
or before 12/03/2010, the parties SHALL FILE a joint status report
specifying the amount of time each party estimates she or it will need to
present evidence and argument at any hearing on the plaintiffs motion for
preliminary injunction; by Judge Robert E. Blackburn on 11/08/2010.
(sah, ) (Entered: 11/08/2010)

11/19/2010

50

RESPONSE to 15 MOTION for Preliminary Injunction with Incorporated
Memorandum of Law filed by Defendant Roxy Huber. (Attachments: # 1
Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6
Exhibit 6, # 7 Exhibit 7, Part 1, # 8 Exhibit 7, Part 2, # 9 Exhibit 7, Part 3,
# 10 Exhibit 7, Part 4, # 11 Exhibit 7, Part 5, # 12 Exhibit 7, Part 6, # 13
Exhibit 7, Part 7, # 14 Exhibit 8, # 15 Exhibit 9, # 16 Exhibit 10, # 17
Exhibit 11, # 18 Exhibit 12, # 19 Exhibit 13, # 20 Exhibit 14, # 21 Exhibit
15, # 22 Exhibit 16, # 23 Exhibit 17)(Scoville, Stephanie) (Entered:
11/19/2010)

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11/23/2010

51

Unopposed MOTION for Leave to File Excess Pages for Reply to
Opposition to Motion for Preliminary Injunction by Plaintiff Direct
Marketing Association, The. (Attachments: # 1 Proposed Order (PDF
Only))(Schaefer, Matthew) (Entered: 11/23/2010)

11/23/2010

52

MOTION for Leave to File Excess Pages for her Reply Brief in Support of
Motion to Dismiss by Defendant Roxy Huber. (Attachments: # 1 Proposed
Order (PDF Only))(Scoville, Stephanie) (Entered: 11/23/2010)

11/23/2010

53

RESPONSE to 52 MOTION for Leave to File Excess Pages for her Reply
Brief in Support of Motion to Dismiss filed by Plaintiff Direct Marketing
Association, The. (Schaefer, Matthew) (Entered: 11/23/2010)

11/24/2010

54

MINUTE ORDER granting 51 Motion for Leave to File Excess Pages.
Plaintiff is granted leave to file a reply brief to defendant's response in
opposition to plaintiff's motion for preliminary injunction that shall not
exceed fifteen 15 pages. By Judge Robert E. Blackburn on
11/24/10.TEXT ONLY ENTRY - NO DOCUMENT ATTACHED
(rebsec, ) (Entered: 11/24/2010)

11/24/2010

55

MINUTE ORDER granting 52 Motion for Leave to File Excess Pages.
Defendant is permitted to file a reply brief in support of her motion to
dismiss not to exceed twenty 20 pages. By Judge Robert E. Blackburn on
11/24/10.TEXT ONLY ENTRY - NO DOCUMENT ATTACHED
(rebsec, ) (Entered: 11/24/2010)

11/29/2010

56

REPLY to Response to 15 MOTION for Preliminary Injunction with
Incorporated Memorandum of Law filed by Plaintiff Direct Marketing
Association, The. (Attachments: # 1 Affidavit Reply Exh A (Barry Decl.),
# 2 Deposition Excerpts Reply Exh B (Barry Deposition), # 3 Deposition
Excerpts Reply Exh C (Gable Deposition), # 4 Deposition Excerpts Reply
Exh D (Keller Deposition), # 5 Affidavit Reply Exh E (Adler Decl.), # 6
Deposition Excerpts Reply Exh F (Adler Deposition), # 7 Affidavit Reply
Exh G (Woock Decl.), # 8 Deposition Excerpts Reply Exh H (Fox
Deposition))(Isaacson, George) (Entered: 11/29/2010)

11/30/2010

57

REPLY to Response to 14 MOTION to Dismiss Plaintiff's First Amended
Complaint filed by Defendant Roxy Huber. (Attachments: # 1 Exhibit
Exhibit 1)(Snyder, Melanie) (Entered: 11/30/2010)

12/03/2010

58

Joint STATUS REPORT Regarding Hearing on Motion for Preliminary
Injunction by Plaintiff Direct Marketing Association, The. (Isaacson,
George) (Entered: 12/03/2010)

12/06/2010

59

ORDER. The Joint Status Report Regarding Hearing on Motion For
Preliminary Injunction 58 filed 12/03/2010, is APPROVED. The
stipulations stated in the joint status report concerning the composition of
the record relevant to plaintiffs motion 15 are APPROVED. The parties
request for oral argument is GRANTED. The court SHALL HEAR oral
argument relevant to the issues raised by and inherent to the plaintiffs
motion 15 on 01/13/2011, commencing at 10:00 a.m. (MST). By Judge
Robert E. Blackburn on 12/06/2010. (sah, ) (Entered: 12/06/2010)

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12/16/2010

60

Joint MOTION for Extension of Time to File Joint Designations of
Additional Deposition Testimony by One Day by Defendant Roxy Huber.
(Wesoky, Jack) (Entered: 12/16/2010)

12/16/2010

61

MINUTE ORDER granting 60 Motion for Extension of Time. Parties
shall have until 12/17/10 to file their Joint Designation of Additional
Deposition Testimony. By Judge Robert E. Blackburn on 12/16/10.TEXT
ONLY ENTRY - NO DOCUMENT ATTACHED (rebsec, ) (Entered:
12/16/2010)

12/16/2010

62

MOTION for Leave to File Excess Pages for Motion to Exclude Plaintiff's
Expert Witnesses by Defendant Roxy Huber. (Attachments: # 1 Proposed
Order (PDF Only))(Snyder, Melanie) (Entered: 12/16/2010)

12/16/2010

63

MOTION to Exclude the Testimony of Plaintiff's Expert Witnesses F.
Curtis Barry, Thomas Adler, and Kevin Lane Keller by Defendant Roxy
Huber. (Attachments: # 1 Exhibit A- Barry Dep., # 2 Exhibit B- Barry
Report, # 3 Exhibit C- Barry Dep. Exhs., # 4 Exhibit D- Adler Report and
Decl., # 5 Exhibit E-1of5- Adler Dep. Exhs, # 6 Exhibit E-2of5- Adler
Dep. Exhs, # 7 Exhibit E-3of5- Adler Dep. Exhs, # 8 Exhibit E-4of5Adler Dep. Exhs, # 9 Exhibit E-5of5- Adler Dep. Exhs, # 10 Exhibit FAdler Dep., # 11 Exhibit G- Lichtenstein Decl. and Report, # 12 Exhibit
H- Keller Dep., # 13 Exhibit I- Keller Report and Decl., # 14 Exhibit J1of3- Keller Dep. Exhs., # 15 Exhibit J-2of3- Keller Dep. Exhs., # 16
Exhibit J-3of3- Keller Dep. Exhs.)(Snyder, Melanie) (Entered:
12/16/2010)

12/17/2010

64

MINUTE ORDER. Defendants Unopposed Motion For Leave To Exceed
Page Limitation For Her Motion To Exclude The Testimony of Plaintiffs
Expert Witness 62 is GRANTED. Defendants Motion To Exclude The
Testimony of Plaintiffs Expert Witnesses F. Curtis Barry, Thomas Adler,
and Kevin Lane Keller 63 is accepted for filing. By Judge Robert E.
Blackburn on 12/17/2010.(sah, ) (Entered: 12/17/2010)

12/17/2010

65

DESIGNATION OF DEPOSITION TESTIMONY Joint Designation of
Additional Deposition Testimony Regarding Plaintiff's Motion for
Preliminary Injunction by Plaintiff Direct Marketing Association, The.
(Schaefer, Matthew) (Entered: 12/17/2010)

12/17/2010

66

DESIGNATION OF DEPOSITION TESTIMONY Excerpts from the
Transcript of the Deposition of F. Curtis Barry and accompanying
deposition exhibits by Plaintiff Direct Marketing Association, The.
(Attachments: # 1 Exhibit Dep. Ex. 1, # 2 Exhibit Dep. Ex. 3, # 3 Exhibit
Dep. Ex. 4, # 4 Exhibit Dep. Ex. 5, # 5 Exhibit Dep. Ex. 7, # 6 Exhibit
Dep. Ex. 8, # 7 Exhibit Dep. Ex. 9, # 8 Exhibit Dep. Ex. 10, # 9 Exhibit
Dep. Ex. 11, # 10 Exhibit Dep. Ex. 12, # 11 Exhibit Dep. Ex. 13, # 12
Exhibit Dep. Ex. 15)(Schaefer, Matthew) (Entered: 12/17/2010)

12/17/2010

67

DESIGNATION OF DEPOSITION TESTIMONY Excerpts from the
Transcript of the Deposition of Kevin Lane Keller and accompanying
deposition exhibits by Plaintiff Direct Marketing Association, The.
(Attachments: # 1 Exhibit Dep. Ex. 16, # 2 Exhibit Dep. Ex. 17, # 3

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Exhibit Dep. Ex. 18, # 4 Exhibit Dep. Ex. 19, # 5 Exhibit Dep. Ex. 20, # 6
Exhibit Dep. Ex. 21, # 7 Exhibit Dep. Ex. 22, # 8 Exhibit Dep. Ex. 23, # 9
Exhibit Dep. Ex. 24, # 10 Exhibit Dep. Ex. 25, # 11 Exhibit Dep. Ex. 26,
# 12 Exhibit Dep. Ex. 29, # 13 Exhibit Dep. Ex. 30, # 14 Exhibit Dep. Ex.
31, # 15 Exhibit Dep. Ex. 32, # 16 Exhibit Dep. Ex. 33, # 17 Exhibit Dep.
Ex. 34, # 18 Exhibit Dep. Ex. 35, # 19 Exhibit Dep. Ex. 36, # 20 Exhibit
Dep. Ex. 37, # 21 Exhibit Dep. Ex. 38)(Schaefer, Matthew) (Entered:
12/17/2010)
12/17/2010

68

DESIGNATION OF DEPOSITION TESTIMONY Excerpts From the
Transcript of the Deposition of Thomas J. Adler and accompanying
deposition exhibits by Plaintiff Direct Marketing Association, The.
(Attachments: # 1 Exhibit Dep. Ex. 21, # 2 Exhibit Dep. Ex. 39, # 3
Exhibit Dep. Ex. 42, # 4 Exhibit Dep. Ex. 44, # 5 Exhibit Dep. Ex. 47, # 6
Exhibit Dep. Ex. 48, # 7 Exhibit Dep. Ex. 49, # 8 Exhibit Dep. Ex. 52, # 9
Exhibit Dep. Ex. 53, # 10 Exhibit Dep. Ex. 54, # 11 Exhibit Dep. Ex. 55,
# 12 Exhibit Dep. Ex. 56, # 13 Exhibit Dep. Ex. 57, # 14 Exhibit Dep. Ex.
58, # 15 Exhibit Dep. Ex. 60, # 16 Exhibit Dep. Ex. 61, # 17 Exhibit Dep.
Ex. 62, # 18 Exhibit Dep. Ex. 63, # 19 Exhibit Dep. Ex. 65, # 20 Exhibit
Dep. Ex. 66, # 21 Exhibit Dep. Ex. 67, # 22 Exhibit Dep. Ex. 68, # 23
Exhibit Dep. Ex. 69, # 24 Exhibit Dep. Ex. 70, # 25 Exhibit Dep. Ex. 72,
# 26 Exhibit Dep. Ex. 74, # 27 Exhibit Dep. Ex. 76, # 28 Exhibit Dep. Ex.
79, # 29 Exhibit Dep. Ex. 80, # 30 Exhibit Dep. Ex. 82, # 31 Exhibit Dep.
Ex. 86, # 32 Exhibit Dep. Ex. 87, # 33 Exhibit Dep. Ex. 88, # 34 Exhibit
Dep. Ex. 90, # 35 Exhibit Dep. Ex. 92, # 36 Exhibit Dep. Ex. 93)
(Schaefer, Matthew) (Entered: 12/17/2010)

12/17/2010

69

DESIGNATION OF DEPOSITION TESTIMONY Excerpts from the
Transcript of the Deposition of William F. Fox and accompanying
deposition exhibits by Plaintiff Direct Marketing Association, The.
(Attachments: # 1 Exhibit Dep. Ex. 95, # 2 Exhibit Dep. Ex. 96, # 3
Exhibit Dep. Ex. 98, # 4 Exhibit Dep. Ex. 99, # 5 Exhibit Dep. Ex. 100, #
6 Exhibit Dep. Ex. 101)(Schaefer, Matthew) (Entered: 12/17/2010)

12/17/2010

70

DESIGNATION OF DEPOSITION TESTIMONY Excerpts from the
Transcript of the Deposition of Dieter G. Gable by Plaintiff Direct
Marketing Association, The. (Schaefer, Matthew) (Entered: 12/17/2010)

12/20/2010

71

Amended MOTION to Exclude Testimony of Plaintiff's Expert Witnesses
F. Curtis Barry, Thomas Adler, and Kevin Lane Keller by Defendant
Roxy Huber. (Attachments: # 1 Exhibit A, Barry Dep., # 2 Exhibit B,
Barry Report, # 3 Exhibit C, Barry Dep. Exhs., # 4 Exhibit D, Adler
Report and Decl., # 5 Exhibit E1of5, Adler Dep. Exhs., # 6 Exhibit E2of5,
Adler Dep. Exhs., # 7 Exhibit E3of5, Adler Dep. Exhs., # 8 Exhibit
E4of5, Adler Dep. Exhs., # 9 Exhibit E5of5, Adler Dep. Exhs., # 10
Exhibit F, Adler Dep., # 11 Exhibit G, Lichtenstein Decl. and Report, # 12
Exhibit H, Keller Dep., # 13 Exhibit I, Keller Report and Decl., # 14
Exhibit J1of3, Keller Dep. Exhs., # 15 Exhibit J2of3, Keller Dep. Exhs., #
16 Exhibit J3of3, Keller Dep. Exhs.)(Snyder, Melanie) (Entered:
12/20/2010)

12/22/2010

72

MOTION to Strike 71 Amended MOTION to Exclude Testimony of

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Plaintiff's Expert Witnesses F. Curtis Barry, Thomas Adler, and Kevin
Lane Keller (as Untimely, Non-Conforming, and Additional, Surreply
Briefing on Planitff's Motion for Preliminary Injunction) by Plaintiff
Direct Marketing Association, The. (Schaefer, Matthew) (Entered:
12/22/2010)
01/05/2011

73

RESPONSE to 72 Plaintiffs Motion to Strike Defendants Additional,
Surreply Briefing on Plaintiffs Motion for Preliminary Injunction, Filed
by the Defendant As an Untimely and Non-Conforming Motion to
Exclude the Testimony of Plaintiffs Expert Witnesses filed by Defendant
Roxy Huber. (Wesoky, Jack) Modified on 1/6/2011 to create linkage
(sah, ). (Entered: 01/05/2011)

01/06/2011

74

REPLY to Response to 72 Plantiff's Motion to Strike filed by Plaintiff
Direct Marketing Association, The. (Schaefer, Matthew) Modified on
1/6/2011 to create linkage (sah, ). (Entered: 01/06/2011)

01/10/2011

75

RESPONSE to 71 Amended MOTION to Exclude Testimony of Plaintiff's
Expert Witnesses F. Curtis Barry, Thomas Adler, and Kevin Lane Keller
filed by Plaintiff Direct Marketing Association, The. (Attachments: # 1
Deposition Excerpts Ex A)(Schaefer, Matthew) (Entered: 01/10/2011)

01/13/2011

76

Minute Entry for Preliminary Injunction proceedings held before Judge
Robert E. Blackburn on 1/13/2011. Taking under advisement 15 Motion
for Preliminary Injunction. (Court Reporter: Suzanne Claar)(babia)
(Entered: 01/13/2011)

01/24/2011

77

REPLY to Response to 71 Amended MOTION to Exclude Testimony of
Plaintiff's Expert Witnesses F. Curtis Barry, Thomas Adler, and Kevin
Lane Keller filed by Defendant Roxy Huber. (Attachments: # 1 Exhibit
Exh K, Gable Rep and Ex, # 2 Exhibit Exh L, Keller Dep Cites, # 3
Exhibit Exh M, Keller Dep Cites)(Snyder, Melanie) (Entered: 01/24/2011)

01/26/2011

78

ORDER. Defendants Amended Motion To Exclude the Testimony of
Plaintiffs Expert Witnesses F. Curtis Barry, Thomas Adler, and Kevin
Lane Keller 71 filed 12/20/2010, is DENIED as moot. The Plaintiffs
Motion to Strike Defendants Additional, Surreply Briefing on Plaintiffs
Motion for Preliminary Injunction, Filed by the Defendant as an Untimely
and Non-conforming Motion to Exclude the Testimony of Plaintiffs
Expert Witnesses 71 72 filed 12/22/2010, is DENIED. By Judge Robert E.
Blackburn on 1/26/2011.(sah, ) (Entered: 01/26/2011)

01/26/2011

79

ORDER. Plaintiffs Motion for a Preliminary Injunction and Incorporated
Memorandum of Law 15 filed 8/13/2010, is GRANTED. See order for
details. By Judge Robert E. Blackburn on 1/26/2011.(sah, ) (Entered:
01/26/2011)

01/26/2011

80

MINUTE ORDER setting a Telephonic Status Conference on 2/10/2011
at 10:00 a.m., in light of the 79 Order Granting Motion for Preliminary
Injunction. Counsel shall coordinate to create a conference call among
themselves before contacting the court (303.844.2117) at the scheduled
time, by Magistrate Judge Craig B. Shaffer on 1/26/11. TEXT ONLY
ENTRY - NO DOCUMENT ATTACHED(cbssec) (Entered: 01/26/2011)

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01/28/2011

81

BOND for Preliminary Injunction posted by Plaintiff Direct Marketing
Association, The. (Schaefer, Matthew) (Entered: 01/28/2011)

01/28/2011

82

RECEIPT (COX034787) for 5,000.00 by Plaintiff Direct Marketing
Association, The re: 79 Order on Motion for Preliminary Injunction.
(sah, ) (Entered: 01/28/2011)

02/01/2011

83

MINUTE ORDER resetting a hearing pursuant to an unopposed request
made by counsel for Defendant. ORDERED that a Telephonic Status
Conference will be held on 2/14/2011 at 9:00 a.m. Counsel shall
coordinate to create a conference call among themselves before
contacting the court (303.844.2117) at the scheduled time, by Magistrate
Judge Craig B. Shaffer on 2/1/11. TEXT ONLY ENTRY - NO
DOCUMENT ATTACHED(cbssec) (Entered: 02/01/2011)

02/14/2011

84

COURTROOM MINUTES/MINUTE ORDER for proceedings held
before Magistrate Judge Craig B. Shaffer: A Telephonic Status
Conference was held on 2/14/2011. (FTR: Linda Kahoe) (cbscd) (Entered:
02/14/2011)

02/16/2011

85

Joint STATUS REPORT and Proposed Order by Plaintiff Direct
Marketing Association, The. (Attachments: # 1 Proposed Order (PDF
Only))(Schaefer, Matthew) (Entered: 02/16/2011)

02/25/2011

86

NOTICE OF APPEAL as to 79 Order on Motion for Preliminary
Injunction by Defendant Roxy Huber (Wesoky, Jack) (Entered:
02/25/2011)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-01546-REB-CBS
THE DIRECT MARKETING ASSOCIATION,
Plaintiff,
v.
ROXY HUBER, in her capacity as Executive Director, Colorado Department of
Revenue,
Defendant.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
Blackburn, J.
This matter is before me on the Plaintiff’s Motion for a Preliminary Injunction
and Incorporated Memorandum of Law [#15]1 filed August 13, 2010. The defendant
filed a response [#50], and the plaintiff filed a reply [#56]. Having considered the
evidence, the parties’ written arguments, the relevant law, and the oral arguments
presented by counsel for the parties at a hearing held on January 13, 2011, I find and
conclude that the motion for preliminary injunction should be granted.
I. JURISDICTION & STANDING
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
Although the defendant challenges the plaintiff’s standing to pursue certain of its claims
in this case, the defendant does not challenge the plaintiff’s standing to present its
claims under the Commerce Clause. The plaintiff seeks a preliminary injunction based
1

“[#15]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

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only on its Commerce Clause claims. Therefore, I need not and do not address
standing.
II. BACKGROUND
The plaintiff, The Direct Marketing Association (DMA), asks the court to enjoin
the defendant from enforcing the notice and reporting obligations imposed on many outof-state retailers under a new Colorado law, now codified at §39-21-112(3.5), C.R.S.
(2010) (the Act), and under the concomitant regulations promulgated by the Colorado
Department of Revenue (DOR) to implement the Act, 1 Colo. Code Regs. § 201-1:3921-112.3.5 (2010) (the Regulations). A copy of the Regulations is attached to the
DMA’s motion [#15] as Exhibit 2. In general, the Act and Regulations require retailers
that sell products to customers in Colorado, but do not collect and remit Colorado sales
tax on those transactions, to report certain information about the customers’ purchases
from the retailer to each customer and to the Colorado Department of Revenue. DMA is
an association of businesses and organizations that market products directly to
consumers via catalogs, magazine and newspaper advertisements, broadcast media,
and the internet. The Act and the Regulations will affect many members of the DMA.
The defendant, Roxy Huber, is the Executive Director of the Colorado Department of
Revenue, the state agency charged with enforcing the Act and the Regulations. The
DMA alleges that certain requirements of the Act and the Regulations violate the
constitutional rights of many members of the DMA. In its motion for preliminary
injunction, the DMA relies on its allegation that the Act and the Regulations violate the
rights of many of its members under the Commerce Clause of the United States
Constitution. U.S. Const. art. I, § 8. The DMA asserts other claims in its complaint, but
the DMA does not rely on those claims as bases for its motion for preliminary injunction.
2

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The Act and the Regulations establish three new obligations for retailers who sell
products to customers in Colorado, but do not collect and remit Colorado sales tax on
those transactions. First, such retailers must notify their Colorado customers that the
retailer does not collect Colorado sales tax and, as a result, the purchaser is obligated
to self-report and pay use tax to the DOR (Transactional Notice). Second, such
retailers must provide to each of their Colorado customers an annual report detailing
that customer’s purchases from the retailer in the previous calendar year, informing the
customer that he or she is obligated to report and pay use tax on such purchases, and
informing the customer that the retailer is required by law to report the customer’s name
and the total amount of the customer’s purchases from that retailer to the DOR (Annual
Purchase Summary). The Annual Purchase Summary must be provided only the
customers who spend more than 500 dollars in the calendar year with a particular
retailer. Third, such retailers must provide the DOR with an annual report concerning
each of the retailer’s Colorado customers stating the name, billing address, shipping
addresses, and the total amount of purchases from the retailer by each of the retailer’s
Colorado customers (Customer Information Report). The Law exempts retailers with
less than 100,000 dollars in gross annual sales in Colorado. In its motion for
preliminary injunction, the DMA asks the court preliminarily to enjoin Huber from
enforcing those provisions of the Act and the Regulations that require retailers to
provide Transactional Notices, Purchase Summaries, and Customer Information
Reports.
III. STANDARD OF REVIEW
FED. R. CIV. P. 65 authorizes federal courts to issue preliminary injunctions.
Because a preliminary injunction is an extraordinary remedy, the plaintiff’s right to such
3

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relief must be clear and unequivocal. See Federal Lands Legal Consortium ex rel.
Robart Estate v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999). The plaintiff is
entitled to a preliminary injunction only if it proves (1) that there is a substantial
likelihood that it will prevail on the merits; (2) that it will suffer irreparable harm unless
the preliminary injunction is issued; (3) that the threatened injury to the plaintiff
outweighs the harm the preliminary injunction might cause defendant; and (4) that the
preliminary injunction is in the public interest. Prairie Band of Potawatomi Indians v.
Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001).
IV. ANALYSIS
A. LIKELIHOOD OF SUCCESS
To secure a preliminary injunction, the plaintiff first must establish a substantial
likelihood that it is likely to prevail on the merits of the substantive claims that are the
basis for its motion. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234,
1246 (10th Cir. 2001). “The determination of a motion for a preliminary injunction and a
decision on the merits are different.” Valdez v. Applegate, 616 F.2d 570, 572 (10th Cir.
1980). “It is not necessary that plaintiffs show positively that they will prevail on the
merits before a preliminary injunction may be granted.” Atchison, Topeka and Santa
Fe Railway. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981). Rather, plaintiff need
only establish “a reasonable probability of success, . . . not an ‘overwhelming’ likelihood
of success[.]” Id.
The plaintiff asserts two claims under the Commerce Clause of the United States
Constitution and argues that it has demonstrated a substantial likelihood of success on
both of these claims. The Commerce Clause expressly authorizes Congress to
“regulate Commerce with foreign Nations, and among the several States.” U.S. Const.
4

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art. I, § 8. The Commerce Clause long has been read as having a negative or dormant
sweep as well. The clause, “‘by its own force’ prohibits certain state actions that
interfere with interstate commerce.” Quill Corp. v. North Dakota By and Through
Heitkamp, 504 U.S. 298, 309 (1992) (quoting South Carolina State Highway Dept. v.
Barnwell Brothers, Inc., 303 U.S. 177, 185 (1938)). The negative Commerce Clause
“denies the States the power unjustifiably to discriminate against or burden the
interstate flow of articles of commerce.” Oregon Waste Systems, Inc. v. Department
of Environmental Quality of State of Or., 511 U.S. 93, 98 (1994). A state law
violates the discrimination aspect of the dormant Commerce Clause if it discriminates
against interstate commerce either facially or in practical effect. Hughes v. Oklahoma,
441 U.S. 322, 336 (1979). If a law discriminates against interstate commerce, then the
state has the burden to demonstrate a legitimate local purpose served by the law which
cannot be achieved through reasonable nondiscriminatory alternatives. Id. at 336 - 337.
If the law in question regulates evenhandedly among in-state and out-of-state interests,
“and its effects on interstate commerce are only incidental, [the law] will be upheld
unless the burden imposed on [interstate] commerce is clearly excessive in relation to
the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
i. Discrimination Claim
In its first claim for relief, the DMA alleges that the Act and the Regulations
discriminate against out-of-state retailers who do not collect Colorado sales tax,
because the Act and the Regulations impose on those retailers notice and reporting
obligations that are not imposed on Colorado retailers. Under Colorado law, all retailers
doing business in Colorado and selling to Colorado purchasers must obtain a sales tax
license and must collect and remit the sales tax applicable to each sale. §§39-26-103,
5

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104, C.R.S. Under the Act and the Regulations, retailers who collect and remit
Colorado sales tax are not obligated to provide the Transactional Notice, the Annual
Purchase Summary, and the Customer Information Report otherwise required by the
Act and the Regulations. Under the law established in Quill and related cases,
Colorado may not impose any duty to collect sales and use taxes on out-of-state
retailers whose only connection to Colorado is by common carrier or the U.S. mail.
Quill, 504 U.S. at 315. Thus, out-of-state retailers that do not have a physical presence
in Colorado generally are not obligated to collect and remit sales tax on their sales in
Colorado. The plaintiff contends that the Act and the Regulations discriminate against
this group of out-of-state retailers by imposing on those retailers burdens that need not
be borne by in-state retailers.
In the context of the dormant Commerce Clause, a law discriminates against
interstate commerce if it imposes “differential treatment of in-state and out-of-state
economic interests that benefits the former and burdens the latter.” Oregon Waste
Systems, Inc. v. Department of Environmental Quality of State of Or., 511 U.S. 93,
99 (1994). In Oregon Waste Systems, for example, the Supreme Court concluded
that Oregon’s two dollar and twenty-five cent per ton surcharge on out-of-state solid
waste brought into Oregon for disposal was discriminatory in violation of the dormant
Commerce Clause, when compared to the eighty-five cents per ton surcharge imposed
on in-state solid waste. Id. at 100. The Oregon Waste Systems Court noted that the
degree of a differential burden or charge on interstate commerce “is of no relevance to
the determination whether a State has discriminated against interstate commerce.” Id.
at n. 4 (internal quotation and citation omitted).
The text of the Act and the Regulations does not explicitly target out-of-state
6

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retailers as opposed to in-state retailers. The defendant argues that the plain language
of the Act and the Regulations applies to all retailers, in-state and out-of-state, that sell
to Colorado purchasers but do not collect Colorado sales tax. Accordingly, the
defendant contends that the Act and the Regulations are not discriminatory. I note,
however, that under Colorado law, in-state retailers long have been required to collect
and remit Colorado sales tax and are subject to civil and criminal penalties if they fail to
do so. §§39-26-103 (4); 39-21-118(2), C.R.S. Unless they defy these legal
requirements, these retailers are not subject to the notice and reporting requirements of
the Act and the Regulations. Evidence submitted by the defendant indicates that the
Tax Compliance Section of the Colorado Department of Revenue discovers each year
only a very small number of Colorado retailers who are not complying with their legal
obligation to collect and remit sales tax. Response [#50], Exhibit 16 (Reiser Affidavit).
Under Colorado law, any retailer who is not subject to the statutory obligation to
collect and remit Colorado sales tax necessarily is an out-of-state retailer. The Act and
the Regulations impose a notice and reporting burden on these out-of-state retailers
and that burden is not imposed on in-state retailers, except for the very few in-state
retailers who defy their statutory sales tax obligations. Given these circumstances, I
conclude that the plaintiff has shown a substantial likelihood that it will succeed in
showing that the Act and the Regulations are discriminatory because, in practical effect,
they impose a burden on interstate commerce that is not imposed on in-state
commerce.
If the DMA succeeds in showing that the Act and the Regulations are
discriminatory, then “the burden falls on the State to justify [them] both in terms of the
local benefits flowing from the statute and the unavailability of nondiscriminatory
7

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alternatives adequate to preserve the local interests at stake.” Hughes v. Oklahoma,
441 U.S. 322, 336 (1979). However, it is exceedingly difficult to meet this standard. “If
a restriction on commerce is discriminatory, it is virtually per se invalid.” Oregon Waste
Systems, 511 U.S. at 99. In this case, the defendant asserts Colorado’s need to collect
tax revenue as the local benefit that justifies the Act and the Regulations. Without
question, this is a legitimate local interest. However, the DMA has noted the availability
of non-discriminatory alternatives. For example, like other states, Colorado might
collect use tax from Colorado taxpayers via the Colorado income tax form. Given this
and other alternatives, I conclude that it is unlikely that the defendant will be able to
show a lack of nondiscriminatory alternatives to the Act and the Regulations.
Regardless of the state’s salutary local purposes, its enactment of a statutory
scheme and concomitant regulations that produce, in effect, a geographic distinction
between in-state and out-of-state retailers discriminates patently against interstate
commerce, id. at 100, which triggers the virtually per se rule of facial invalidity that has
not been surmounted by a demonstration by the state of a legitimate local purpose that
can not be served adequately by reasonable nondiscriminatory alternatives. Id. (internal
quotation and citations omitted). Thus, on the current record, I conclude that the DMA
has demonstrated a substantial likelihood of success on its discrimination claim under
the dormant Commerce Clause.
ii. Undue Burden Claim
In its second claim for relief, the DMA alleges that the Act and the Regulations
impose improper and burdensome regulation of interstate commerce. The DMA relies
heavily on the law established in Quill Corp. v. North Dakota By and Through
Heitkamp, 504 U.S. 298, 309 (1992) to support its undue burden claim. In Quill, the
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Court concluded that undue burdens on interstate commerce sometimes may be
avoided by the application of a bright line rule. The Quill court concluded that the
dormant Commerce Clause and the Court’s earlier holding in National Bellas Hess,
Inc. v. Department of Revenue of State of Ill., 386 U.S. 753, 758 (1967) create a
bright line rule with regard to the collection of sales and use tax. This law creates a
“safe harbor for vendors whose only connection with customers in the [taxing] State is
by common carrier or the United States mail. Under Bellas Hess, such vendors are
free from state-imposed duties to collect sales and use taxes.” Quill, 504 U.S. at 315
(internal quotation omitted).
The Quill Court examined and applied the quadripartite test enunciated in
Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977). Under Complete
Auto, a state tax will be sustained against a Commerce Clause challenge as long as the
tax (1) is applied to an activity with a substantial nexus with the taxing state; (2) is fairly
apportioned; (3) does not discriminate against interstate commerce; and (4) is fairly
related to the services provided by the state. Complete Auto, 430 U.S. at 279.
Complete Auto rejected the previously applied distinction between direct and indirect
taxes on interstate commerce “because that formalism allowed the validity of statutes to
hinge on legal terminology, draftsmanship and phraseology.” Quill, 430 U.S. at 310
(internal quotation, citation, and brackets omitted). The Complete Auto test
emphasizes the importance of looking past the formal language of a tax statue to its
practical effect. Quill, 504 U.S. at 310. The first and fourth prongs of the Complete
Auto test “limit the reach of state taxing authority so as to ensure that state taxation
does not unduly burden interstate commerce.” Quill, 504 U.S. at 313. The safe harbor

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established in Quill is a meant to delineate and define the limits of the substantial nexus
requirement of the Complete Auto test to ensure that a state tax law does not impose
an undue burden on interstate commerce. Id.
The Act and the Regulations do not require out-of-state retailers to collect sales
and use taxes. However, they do require out-of-state retailers to gather, maintain, and
report information, and to provide notices to their Colorado customers and to the
defendant about their Colorado customers. The sole purpose of these requirements is
to enhance the collection of use taxes by the State of Colorado. I conclude that these
requirements likely impose on out-of-state retailers use tax-related responsibilities that
trigger the safe-harbor provisions of Quill. Although the burden of the notice and
reporting obligations imposed by the Act and the Regulations may be somewhat
different than the burden of collecting and remitting sales and use taxes, the sole
purpose of the burdens imposed by the Act and the Regulations is the ultimate
collection of use taxes when sales taxes cannot be colleted. Looking to the practical
effect of the Act and the Regulations, I conclude that the burdens imposed by the Act
and the Regulations are inextricably related in kind and purpose to the burdens
condemned in Quill. The Act and the Regulations impose these burdens on out-ofstate retailers who have no connection with Colorado customers other than by common
carrier or the United States mail. Those retailers likely are protected from such burdens
on interstate commerce by the safe-harbor established in Quill.
iii. Conclusion
I find and conclude that the DMA has demonstrated a substantial likelihood of
success on both its discrimination claim and its undue burden claim under the dormant
Commerce Clause. Thus, consideration of this first factor weighs in favor of the
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issuance of a preliminary injunction.
B. IRREPARABLE INJURY
The parties dispute whether or not a deprivation of the Commerce Clause rights
at issue here, without more, constitutes irreparable injury. In a recent case, the United
States Court of Appeals for the Tenth Circuit indicated that violation of Commerce
Clause rights constitutes irreparable injury. American Civil Liberties Union v.
Johnson, 194 F.3d 1149, 1163 (10th Cir. 2010) (citing American Libraries Ass’n v.
Pataki, 969 F.Supp. 160, 168 - 183 (S.D.N.Y. 1997)). Although the Tenth Circuit’s
statement in Johnson is dicta, I conclude that violation of the constitutional Commerce
Clause rights of DMA’s members constitutes irreparable injury.
In addition, it is undisputed that many DMA members will face compliance costs
if they are required to comply with the Act and the Regulations in the future. The
amount of those costs is disputed. Huber’s expert concludes that the smallest retailers
affected by the Act and the Regulations will incur first-year compliance costs ranging
from about 3,100 dollars to 7,000 dollars. Response [#50], Exhibit 6 (Report of Dieter
G. Gable), p. 2. If, in the end, the Act and the Regulations are found to be
unconstitutional because they violate the Commerce Clause, the affected retailers
would be unable to recover these compliance costs from the State of Colorado. Under
the Eleventh Amendment, Colorado is immune from suit for such damages. Under
these circumstances, the compliance costs faced by retailers subject to the Act and the
Regulations constitute irreparable injury. Chamber of Commerce of U.S. v.
Edmondson, 594 F.3d 742, 770 - 771 (10th Cir. 2010) (compliance costs of more than a
thousand dollars per year per business constitute irreparable injury if such costs cannot
later be recovered because of sovereign immunity). Thus, consideration of this second
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factor weighs also in favor of the issuance of a preliminary injunction.
C. BALANCE OF HARMS
When considering the balance of harms, a court must balance “the competing
claims of injury and must consider the effect on each party of the granting or withholding
of the requested relief.” Amoco Prod. Co. v. Gambill, 480 U.S. 531, 542 (1987). The
DMA argues that the need to protect the constitutional rights of certain of its members
outweighs the interest of the State of Colorado in enforcing a law that likely is
constitutionally infirm. In addition, absent an injunction, some DMA members will incur
compliance costs that cannot later be recovered. Huber argues that these
considerations do not outweigh Colorado’s interest in enforcing a state law that will
provide revenue to its strapped coffers.
If, ultimately, the Act and the Regulations are upheld against the DMA’s
challenge, the reports and notices required by the Act and the Regulations can be
prepared and delivered. This might delay the state’s collection of some use taxes, but it
will not prevent the ultimate collection of those taxes. On the other hand, preserving the
status quo with a preliminary injunction will prevent the irreparable injuries discussed
above while the issues raised by the DMA are resolved completely. Given these
circumstances and considerations, I find and conclude that the balance of harms favors
the DMA, and thus, the issuance of a preliminary injunction.
D. PUBLIC INTEREST
Generally, the public interest is served by enjoining the enforcement of a law that
likely violates the Constitution. Chamber of Commerce of U.S. v. Edmondson, 594
F.3d 742, 771 (10th Cir. 2010). Huber argues that it is not in the public interest to enjoin
the enforcement of a law which has the primary goal of raising revenue to ensure the
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fiscal well-being of the state. As Huber notes, a court of equity must “pay particular
regard for the public consequences in employing the extraordinary remedy of
injunction.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, ___, 129
S.Ct. 365, 376 -377 (U.S. 2008). I find and conclude that the public’s interest in
revenue raising by the state will not be impaired substantially by the issuance of a
preliminary injunction. At most, the state may suffer some delay in implementing its
new technique for enforcing its use tax laws, if the Act and the Regulations are upheld
against the DMA’s challenge. On the other hand, the enforcement of a law that likely is
unconstitutional, even if the goal of the law is important and legitimate, does not serve
the public interest. Thus, the public interest factor weighs in favor of the issuance of a
preliminary injunction.
V. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Plaintiff’s Motion for a Preliminary Injunction and Incorporated
Memorandum of Law [#15] filed August 13, 2010, is GRANTED on the following terms;
2. That effective forthwith defendant Roxy Huber, in her capacity as Executive
Director, Colorado Department of Revenue, together with her agents, servants,
employees, attorneys-in-fact, or anyone acting on their behalf, are ENJOINED AND
RESTRAINED from enforcing the provisions of §39-21-112(3.5), C.R.S. (2010) (the Act)
and the regulations promulgated thereunder, 1 Colo. Code Regs. § 201-1:39-21-112.3.5
(2010) (the Regulations), to the extent that the Act and the Regulations require
A. that a retailer must notify their Colorado customers that the
retailer does not collect Colorado sales tax and, as a result, the purchaser
is obligated to self-report and pay use tax to the Colorado Department of
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Revenue (Transactional Notice); and
B. that a retailer must provide to each of its Colorado customers an
annual report detailing that customer’s purchases from the retailer in the
previous calendar year, informing the customer that he or she is obligated
to report and pay use tax on such purchases, and informing the customer
that the retailer is required by law to report the customer’s name and the
total amount of the customer’s purchases from that retailer to the Colorado
Department of Revenue (Annual Purchase Summary); and
C. that a retailer must provide the Colorado Department of
Revenue with an annual report concerning each of the retailer’s Colorado
customers stating the name, billing address, shipping addresses, and the
total amount of purchases from the retailer by each of the retailer’s
Colorado customers (Customer Information Report);
3. That this preliminary injunction SHALL LIMIT the enforcement of the Act and
the Regulations against retailers who sell to customers in Colorado, but whose only
connection to the State of Colorado is by common carrier or the United States Mail;
4. That this preliminary injunction SHALL NOT LIMIT the enforcement of the Act
and the Regulations against retailers who do not fall into the class of retailers defined in
paragraph three (3), above;
5. That under FED. R. CIV. P. 65(c), the plaintiff, the Direct Marketing
Association, SHALL POST with the Clerk of the Court a bond in the amount of five
thousand (5,000) dollars on or before Friday, January 28, 2011, at 12:00 p.m. (mountain
standard time); and

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6. That this preliminary injunction SHALL REMAIN IN EFFECT until modified or
rescinded by further order of the court.
Dated January 26, 2011, at Denver, Colorado.
BY THE COURT:

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01546-REB-CBS
The Direct Marketing Association,
Plaintiff,
v.
Roxy Huber, in her capacity as Executive Director, Colorado Department of Revenue,
Defendant.
NOTICE OF APPEAL
Notice is hereby given that Roxy Huber, in her capacity as Executive Director,
Colorado Department of Revenue, Defendant in the above named case, hereby appeals
to the United States Court of Appeals for the Tenth Circuit from the Order Granting
Motion for Preliminary Injunction entered in this action on the 26th day of January, 2011.
Respectfully submitted this 25th day of February, 2011.
JOHN W. SUTHERS
Attorney General
s/ Jack M. Wesoky
JACK M. WESOKY, 6001*
Senior Assistant Attorney General
MELANIE J. SNYDER, 35835*
Assistant Attorney General
Business & Licensing Section
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
Telephone: [phone] (Wesoky)
Telephone: [phone] (Snyder)
FAX: [phone]
E-Mail: [e-mail]
E-Mail: [e-mail]

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STEPHANIE LINDQUIST SCOVILLE*
Senior Assistant Attorney General
Civil Litigation and Employment Law Section
Attorneys for State Defendants
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
Telephone: [phone]
FAX: [phone]
E-Mail: [e-mail]

*Counsel of Record

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CERTIFICATE OF SERVICE
I hereby certify that on February 25, 2011I electronically filed the foregoing
NOTICE OF APPEAL with the Clerk of the Court using the CM/ECF system which will
send notification of such filing to the following e-addresses:
[e-mail]
[e-mail]
Attorneys for Plaintiff
s/ Jack M. Wesoky

3