Direct Marketing Association, The v. Huber

Filing 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)

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.

PLAINTIFF’S UNOPPOSED MOTION FOR LEAVE
TO EXCEED PAGE LIMITATION
______________________________________________________________________

The Plaintiff, the Direct Marketing Association (“the DMA”), moves for leave to
exceed the Court’s page limitation for motions set forth in REB Civ. Practice Standard
V.B.1., in connection with the DMA’s motion for a preliminary injunction, which the DMA
expects to file within the next ten (10) business days. As grounds therefor, the DMA
states as follows:
1.

Pursuant to D.C.COLO.LCivR. 7.1A., counsel for the DMA has conferred

with counsel for the Defendant. The Defendant has no objection to the DMA’s request
to file a Motion for Preliminary Injunction that is no more than 40 pages in length, as
requested in this motion.

2.

The DMA brings this action, on behalf of its affected members and their

customers, challenging the constitutionality of provisions of a new Colorado statute,
House Bill 10-1193, “An Act Concerning The Collection Of Sales And Use Taxes On
Sales Made By Out-Of-State Retailers, And Making An Appropriation Therefor” (“the
Act”), and the regulations adopted by the Colorado Department of Revenue
(“Department”) to implement the Act, which impose notice and reporting requirements
solely on out-of-state retailers who do not collect Colorado sales tax. The Act and
regulations require each affected out-of-state retailer to inform its purchasers of their
obligation to pay Colorado use tax and to file a report annually with the Department
disclosing the name, billing address, shipping address, and dollar amount of products
purchased of each of the retailer’s customers.
3.

The DMA contends in its complaint that the notice and reporting

requirements of the Act, and of the regulations promulgated thereunder by the
Department, violate both the United States Constitution and the Colorado Constitution
by: (a) imposing discriminatory treatment on out-of-state retailers lacking any physical
presence in the state; (b) trampling the right to privacy of Colorado residents, as well as
certain non-residents; (c) chilling the exercise of free speech by certain purchasers and
vendors of products that have expressive content; (d) exposing confidential information
regarding consumers and their purchases to the risk of data security breaches; and (e)
depriving retailers, without due process or fair compensation, of both the value of their
proprietary customer lists and the substantial investment made to protect such lists from
disclosure.

The DMA challenges the Act’s constitutionality under the Commerce

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Clause, the First, Fifth and Fourteenth Amendments, and similar provisions of Article II
of the Colorado Constitution.
4.

Affected DMA members and out-of-state retailers, as well as their

customers, face imminent and irreparable harm as a result of the unconstitutional
requirements imposed by the Act and regulations.
5.

Because the Complaint raises many important constitutional issues, the

DMA anticipates this action will be closely followed by many other states and parties.
6.

Given the significance and complexity of the issues presented in this case,

the DMA requests leave to exceed the page limitations for motions set forth in this
Court’s Practice Standards for Civil Actions, REB Civ. Practice Standard V.B.1., and to
file a Motion for Preliminary Injunction that is no more than 40 pages in length. Counsel
for the DMA will make every attempt to ensure that the DMA’s motion is concise and
helpful to the Court’s determination of whether to grant a preliminary injunction.
7.

For these reasons, good cause exists for an enlargement of this Court’s

page limitation for motions.
8.

In accordance with D.C.COLO.LCivR. 7.1F. and REB Civ. Practice

Standard V.D.1., the DMA submits with this motion a proposed form of Order Regarding
Plaintiff’s Unopposed Motion For Leave To Exceed Page Limitation.

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WHEREFORE, the DMA requests this Court enter an Order granting it leave to
file a motion for preliminary injunction not to exceed 40 pages.

Respectfully submitted this 30th day of July, 2010.

/s/ Matthew P. Schaefer
George S. Isaacson
Matthew P. Schaefer
BRANN & ISAACSON
184 Main Street, P. O. Box 3070
Lewiston, ME 04243−3070
Tel.: (207) 786−3566
Fax: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for The Direct Marketing
Association

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CERTIFICATE OF SERVICE
I hereby certify that on July 30, 2010, I electronically filed the foregoing, Plaintiff’s
Unopposed Motion For Leave To Exceed Page Limitation, with accompanying proposed
order, using the CM/ECF system, which will send notification of such filing to counsel of
record:
Stephanie Lindquist Scoville
Senior Assistant Attorney General
State of Colorado
1525 Sherman Street, 7th Floor
Denver, CO 80203
[e-mail]
Robert H. Dodd, Jr.
Senior Assistant Attorney General
State of Colorado
1525 Sherman Street, 7th Floor
Denver, CO 80203
[e-mail]
Attorneys for Defendant

/s/ Matthew P. Schaefer
Matthew P. Schaefer

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