U.S. Supreme Court Denies Certiorari for Direct Marketing Association v. Brohl

The U.S. Supreme Court (“Court”) denied hearing the appeal from the Tenth Circuit Court of Appeals decision in Direct Marketing Association v. Brohl, which held that Colorado’s notice and reporting requirements did not unduly burden or discriminate against interstate commerce.¹ Please refer to our previous analysis of the Tenth Circuit Court of Appeals decision, Online Retailers Must Provide State of Colorado with Customer Information; U.S. Court of Appeals Issues Judgment in Direct Marketing Association v. Brohl.

The Court also denied certiorari for a conditional cross petition by the Colorado Department of Revenue (DOR). The DOR wanted to reframe the question presented by Direct Marketing Association as whether a state law that seeks to enforce the existing and constitutional use tax within the limitations of Quill v. North Dakota, 504 US 298 (1992) runs afoul of the anti-discrimination principles of the dormant Commerce Clause. The DOR wanted the Quill decision to be overturned, as it gives competitive advantage to online retailers.²

It’s important to note that unlike other state online nexus cases, this denial by the Court requires retailers to obtain and disclose to the Department of Revenue much of the detailed nature of the purchases. We have not seen other states take this form of compliance, but with the Court denying certiorari, it may buoy other states to whittle away at Quill’s power by enacting laws similar to Colorado. While this method of bypassing Quill is an anomaly, we hope this does not portend a trend in 2017.  

¹ Direct Marketing Association v. Brohl, No. 12-1175 (10^th Cir. 2016), cert. denied (U.S. December 12, 2016) (No. 16-267).
² Direct Marketing Association v. Brohl, No. 12-1175 (10^th Cir. 2016), conditional cross-petition for cert. denied (U.S. December 12, 2016) (No. 16-458).