Eyes on Ecom Law

Brann & Isaacson Wins Major Tax Injunction Act Case In U.S. Supreme Court

On March 3, 2015, the Supreme Court ruled unanimously in favor of the Direct Marketing Association in the case of DMA v. Brohl. Senior Partner George Isaacson and Partner Matthew Schaefer represented the DMA, and Isaacson argued the case in the Supreme Court.  In an opinion by Justice Thomas, the Court held that the Tax...

A Recent Wave of Click Through Nexus Activity in the States

Online retailers, welcome to the 2015 state legislative season. No fewer than six states have new developments in the area of online “click through” affiliate nexus legislation, with most of the activity reflecting negative developments for remote sellers. These click through laws remain, in our view, constitutionally suspect, despite the decision of the New York...

As Michigan Goes, So Goes Vermont: Michigan Adopts a Click-Through Nexus Law

Since we write this blog from Maine, we can take some liberty with this political observation and apply it to sales tax, as we discuss in this article. On Thursday, January 15, Governor Rick Snyder signed legislation, Senate Bill 658 (MI 97th Legislature, 2014), which is a click-through nexus law.  In particular, the recently-enacted statute,...

New Jersey Legislature Considers “Do Not Mail” Law

The holiday season is upon us and for many readers of this blog – direct marketers and consumers alike – holiday season is catalog season.   If a state legislator from Cape May, NJ has his way, however, retailers may soon need to take extra precautions when mailing to residents of the Garden State. Earlier this...

Direct Marketing Association Oral Argument Update

Oral argument in the case of Direct Marketing Association v. Brohl occurred on December 8, 2014.   For  readers who are following the case, we thought it would be useful not only to recap some of the high points of the argument, but also to provide a list of resources and press reactions.  Both a...

Colorado’s Amazon Law: US Supreme Court Weighs In

On Monday, December 8, 2014, the United States Supreme Court will take up an important case for multichannel retailers.  It will hear argument in Direct Marketing Association, Inc. v. Brohl, a case brought to challenge a Colorado law that sought to impose notice and reporting obligations on out-of-state retailers only, including the annual filing of...

The Super Bowl: Nominative Fair Use and Famous Trademarks

As the holidays arrive, Americans settle in for Turkey, gift-giving, and a lot of football watching.  This cultural phenomenon begins with NFL games on Thanksgiving, rolls right into college football conference championships, the college football bowl season,  and NFL playoffs.  The coup de grace, coming this year on February 1, 2015, in Glendale, Arizona, is...

ROSCA: The Restore Online Shoppers’ Confidence Act

As we head into the holiday and then the most intense shopping days of the year, we want to wish everyone a safe and happy Thanksgiving.  It’s a last chance to rest and indulge before the “all hands on deck” holiday retailing season. But, we’d be remiss if we didn’t take this time — just...

FTC Updates Mail Order Rule for Internet Age

For decades, direct marketers have been subject to the Federal Trade Commission’s Mail Order Merchandise Rule, 16 C.F.R. 435, sometimes referred to informally as the “30 Day Rule.”  Generally speaking, the Rule prohibits sellers from soliciting mail, Internet or telephone order sales unless they have a reasonable expectation that they will be able to ship...

Some Good News For Retailers Regarding False Claims Act Cases

It has become increasingly common that private parties have filed qui tam actions against retailers under state false claims act cases, seeking large damage recoveries against the retailers based on the claim that the retailers have failed to remit sales and use taxes and escheat amounts to the states.  We have previously reported on qui...