# Amicus Curiae Brief — South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018) (No. 17-494)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

No. 17-494
—_—_—— EE .- —

IN THE
Supreme Court of the Wnited States

SOUTH DAKOTA,
Petitioner,
Vv.
WAYFAIR, INC., OVERSTOCK.COM, INC.,
AND NEWEGG, INC.,
Respondents.

On Writ of Certiorari
to the South Dakota Supreme Court

BRIEF FOR AMICI CURIAE
WASHINGTON STATE TAX PRACTITIONERS
IN SUPPORT OF RESPONDENTS

DIRK GISEBURT

Counsel of Record

Davis Wright Tremaine LLP
1201 Third Avenue, Ste.2200
Seattle, WA 98101

dirkgiseburt@dwt.com
207-757-8049

April 4, 2018
TE

QUESTION PRESENTED

Should this Court abrogate Qui//’s sales-tax only,
physical-presence requirement?

TABLE OF CONTENTS

SFE Ee OT BINED vic osccsceeccesesevensenesinevonsexedonies i
ee ee i incesessniscenscersesenensescessssncvineseses ii
TABLE OF AUTHORITIES .............0.:0cccccccccsssssssesees iv
INTEREST OF THE AMICT CURIAE................0.000+- 1
SUMMARY OF ARGUMENT ...............:.cccssececeeseeseees 3
PTE eictecitcresetninninnapneinemnsiemnasinetnaneenicietnaeen 7

lL. Complete Auto's Background Shows That
Nexus With The Activity Is An
Individualized Assessment, And This
Case Is Not Properly Framed Upon
I i cresiacesnsnsssietedpronstaneatcinbedsuns 7

A. The entire body of law on which
Complete Auto based its nexus test
focused on whether the taxpayer
conducted the taxed activity in the
i ibaidcaetinintindninienicinnntniameidanmmessatugnasrmmmens 7

B. The Court’s use-tax collection cases
show the collection obligation is
dependent on the taxpayer's
carrying on a directly taxable
activity in the State; mere
advertising was not seen as a
substantial part of making sales. ....... 17

C. South Dakota’s conclusive nexus
presumption based on __ sales
volumes does not comport with
Complete Autos as-applied test; if
“delivery” is the targeted activity of
online retailers, the State needs to

show the particular’ delivery
mechanism can be attributed to the

I cccisieespcietsticiithi eaten tachinaiiabaienamnmenian 22

Il. Confusion About The Nature Of The Tax
In Question Should Be Avoided..................... 25
I i 29

APPENDIX: List of Amnici Curiae ...............ccccccces000 la

Cases

Allied-Signal, Inc. v. Dir., Div. of
Taxation,

Pe GA: FU CRUD sncscescvssvesosecescsssensonees

American Oil Co. v. Neill,

FO Was GBS (EDGED cscccevecnsosscccessesccevsveses

Boston Stock Exch. v. State Tax
Comm'n,

Ge Es I GIG ED viesdiccccccasctecseserevevecess

Bowman v. Continental Oil Co.,

Pe Us GE GRIER D cv erccvicocstcnsssscoscccscveses

Clark v. Paul Gray, Inc.,

Ne BPs COED vncvsnssscsessoscccrssanessseses

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821)................

Colonial Pipeline Co. v. Traigle,

FS Sas Be OD tiivansseccassesesesessnsconcns

Complete Auto Transit, Inc. v. Brady,

SE GE PE COP TTD cscncnscisciassescevescsssevenie

Felt & Tarrant Mfg. Co. v. Gallagher,

Fs Es CD bccscesicceccsvsveccnsccecoversess

Freeman v. Hewit,

Os DP CRIED scroceccarsnsevseccnvececcosvens

Page(s)

aden passim

18, 19, 20

Gen. Motors Corp. v. Washington,

PT Cia, GI Ce vere ccsgcaccacstcieneiitashbicctisnessi 10, 11
Gen. Trading Co. v. State Tax Comm'n

of Iowa,

a Ne CI iicinccncessendedhpesvaerivnabedainabiceants 20

Henneford v. Silas Mason Co..,
canis 18, 25

Hinson v. Lott,
Se ees Ge NE, De 0 END sitisnostckinsnachevasesettescceoes 16

Illinois Cent. R. Co. v. Minnesota,
ee oo ocuanienncaneiaeanaes 10

Ingels v. Morr,
Rs Be CIE B vccchnisnitdnistechabaviindscesncnasessecaduiys 10

Irwin Naturals v. State,
382 P.3d 689 (Wash. Ct. App. 2016),

cert. denied, 138 S. Ct. 238 (2017).................064 26
McGoldrick v. Berwind-White Coal

Mining Co.,

ls leecounenaeeunle 15, 16

Memphis Natural Gas Co. v. Stone,
I ry Ba siidanateccnneninctacecseersessnatixaneies 12, 13

Miller Bros. Co. v. Maryland,
DOT UF. BED CIGD ovcsicicssccnsccepese 17, 21, 22, 23, 24

Monomator Oil Co. v. Johnson,
I ee nd no ai daceumesneuinel 18, 20

v1

Nat Bellas Hess, Inc. v. Dep't of
Revenue of Illinois,

as, CI CONE Darn svdernntasesssiccnccsscnss

Nat? Geographic Soc'v v. California Bd.
of Equalization,

Ge re Ge CE SP cenienecenssicviscicnrssorsces

Nelson v. Montgomery Ward & Co.,

Re Ge TO COED wieiccserccerstnsesseveocscens

Nelson v. Sears, Roebuck & Co..

BED UT GO URGED civciscscsscncoscosccesessoeee

Northwestern States Portland Cement
Co. v. Minnesota,

Be SFE CED vecenstirenntvccininttsccsazsem

Norton Co. v. Dep't of Revenue,

ee A ED Ses achaiesnesrenenieninsniossess

Oklahoma Tax Comm'n v. Jefferson
Lines, Inc..,

eS Bre CO CD cintasdnnccnsccsincsssennncees

Pike v. Bruce Church, Inc.,

gel | it Sea neneerere

Quill Corp. v. North Dakota,

a) reer

Scripto, Inc. v. Carson,

Be ek Ie CRD ccc csciressvisventsonsornasas

Sonneborn Bros. v. Cureton,

BE Fk Be I dcenensnesccsecsccceresessess

Spector Motor Serv., Inc. v. O'Connor,

yf ll eee 13, 16
Standard Pressed Steel Co. v.

Washington Dep't of Revenue,

a, I TD eek cick backcnctekcpinonicbninsamvaanvanpueds 11
State v. Wayfair, Inc.,

901 N.W.2d 754, 766 (2O1G) ............ccccsveesceceees 6, 27
Trinova Corp. v. Michigan Dept of

Treasury,

es ED wis ccdetite tea stiscsiaciibcideadioacat 2, 25
Wisconsin v. J.C. Penney Co..,

ge a Ly re 6, 12, 19
Statutes
Cal. Civ. Code § 1656.1 (2016 and Supp.

Se iiasectiessiosdieitnsncducpsssanasiondinbbeaeciacsabeuasadoteunsdanuiieaeni 26
Cal. Rev. & Tax. Code § 6051 (2016 and

I MI ihc siascahascsecen rccceenvectapecegiacorvesiasbdictenslesnieaneatics 26
S.D. Codified Laws § 10-45-2 (Supp.

BF ihbicicapsetissicinniscmsennchapiocunisntéocennackinenmdenensisee 6, 26
S.D. Codified Laws § 10-45-22 (Supp.

BNE Da ciincasscecdicshaneciguiiepiniitedanineiaseniisiinsueoedstins 6, 26, 28
S.D. Codified Laws § 10-45-27.3...............000. 7, 27, 28

S.D. Codified Laws § 10-64-2 (Supp.

——

vill
Wash. Rev. Code § 82.08.020(1) (2016
I, Ie Pincecasantinsccscescinnsanscensecsvtessiacessicivacs 26

Wash. Rev. Code § 82.08.050(1) (2016
EE I TE Picts ecsepatennistsdiccsinisbehatelavestastortacinnds 26

Wash. Rev. Code § 82.08.120 (2016 and
I TID bictteench laces censnssenescieorsveininiconenanveniesnees 26
Other Authorities

S.B. 106, 91st Legis. Assemb. Session,
OE BEE), CPG, BO since inte ccnctcossneenvess 22, 23, 24

South Dakota Department of Revenue,
“Sales and Use Tax Guide” (July

2017), http://dor.sd.gov/Taxes/Busine

BRIEF OF AMICI CURIAE
WASHINGTON STATE TAX PRACTITIONERS
IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

Amici curiae (“Practitioners”)' are lawyers
practicing state and local tax law in Washington State.
Practitioners spend parts of nearly every working day
appl: ing this Court’s Commerce Clause and Due
Process Clause precedents in the representation of
U.S. and foreign individuals, families, charities, and
business organizations of every kind.

Practitioners join this brief solely as individuals
and not as representatives of the law firms with which
they are affiliated. Each is currently in private
practice. Among their number are practitioners who
have served in the past as President of the
Washington State Bar Association or as chair of the
Association’s State and Local Taxes Committee. Their
experience is not limited to representing taxpayers,
some having worked in the past for the Washington
State Department of Revenue as a former Assistant
Director for Interpretation and Appeals, a second
former appeals officer, and a legislative affairs officer.
A full list of amici appears in Appendix A.

Part of the challenge and satisfaction of

' No counsel for a party authored this brief in whole or in part
nor made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than
amici curiae or its counsel made a monetary contribution to its
preparation or submission. Petitioner and Respondents have
filed Blanket Consents to the filing of amicus curiae briefs with
the Clerk of the Court.

to

Practitioners’ job is explaining to clients and others
the not always scrutable ways in which this Court has
sought “to accommodate the necessary abstractions of
tax theory to the realities of the marketplace.”
Trinova Corp. v. Michigan Dept of Treasury, 498 U.S.
358, 372 (1991). As the Court itself repeatedly
acknowledges, clarity and consistency of doctrinal
statements in its opinions are sometimes wanting.
Legal advisors to the States, too, experience
uncertainty in applying the Court’s statements to
legislative proposals and legal strategy. See Br. of
Colorado, et al., at 17.

The Petitioner asks the Court to abrogate a long-
standing precedent, Quil/ Corp. v. North Dakota, 504
U.S. 298 (1992), but the Petitioner’s argument is based
on a shallow and inaccurate understanding of the
doctrinal framework for the case. In particular, while
the Petitioner and some supporting amici argue that
they are seeking a straightforward application of the
“substantial nexus” test of Complete Auto Transit, Inc.
v. Brady, 430 U.S. 274 (1977), in fact they ask the
Court to change the test fundamentally.

The new world of e-commerce clearly poses
challenges to public finance, but these challenges do
not excuse arguments that obscure the nature of the
tax in question or the content of applicable law.
Practitioners offer a review, not provided to the same
degree in the other briefing, of the development of this
Court’s relevant case law in order to show what is
more broadly at stake in this case.

SUMMARY OF ARGUMENT

1. The Petitioner presents the legal problem in this
case as a matter of simple inconsistency between the
rule in Quill Corp. v. North Dakota, 504 U.S. 298
(1992), and the fundamental nexus test of Complete
Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977). Pet’r’s
Br. at 21-23. This argument is mistaken because it
obscures the fact that there are two separate nexus
tests at work.

The genealogy of Complete Autos nexus
formulation shows that the test should be read as
sustaining a tax “when the tax is applied to an activity
lof the taxpayer with a substantial nexus with the
taxing State.” /d. at 279. This test grew out a body of
law addressing when a State could impose a tax on a
taxpayer itself. By contrast, the core holdings on use-
tax collection in Qui// and Nat? Bellas Hess, Inc. v.
Dep't of Revenue of Illinois, 386 U.S. 753 (1967), are
no-nexus counterpoints to a distinct line of cases that
upheld a tax-collection obligation as ancillary to an
otherwise taxable activity the retailer was conducting
within the State. Without saying so expressly, Qui//
reaffirmed that a tax-collection obligation could not be
imposed unless the State could already impose a tax
on an activity conducted by the business in the State.

Practitioners agree with the Petitioner that the
Court should be mindful in this case of Chief Justice
Marshall’s counsel on how to read “general
expressions” in the Court’s opinions:

It is a maxim not to be disregarded, that
general expressions, in every opinion, are
to be taken in connection with the case in
which those expressions are used.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821),
quoted in Pet’r’s Br. at 41. Just so in the case of
Complete Auto. The Petitioner, unfortunately, betrays
that very maxim by omitting discussion of the Court’s
application of the nexus rule in Complete Auto itself as
well as the rule’s antecedents.

The “general expression” of the Commerce Clause
nexus standard in Complete Auto is this: a tax will be
sustained “when the tax is applied to an activity with
a substantial nexus with the taxing State.” /d. at 279.
How did this Court apply the “general expression” of
its nexus test in Complete Auto itself?

First, the Court identified the tax in question in its
own words as a “sales tax” imposed, as a statutory
matter, as “privilege taxes for the privilege of engaging

. in business . . . within this state” measured by
gross income from the operation of a “transportation
business for the transportation of persons or property.”
/d. at 275 (quoting Miss. Code Ann., 1942 § 10105
(1972 Supp.)) (quotation marks omitted). Then the
Court observed that the company “did not allege that
its activity which Mississippi taxes does not have a
sufficient nexus with the State.” 430 U.S. at 277-78
(emphasis added). And indeed the company did
engage in transporting property within the State.
Hence there was no basis for invalidating the
assessment on the nexus ground.

Moreover, every precedent cited in Complete Auto
as sources for its synthesis of the Commerce Clause
tests — every one — concerned a tax on the activity of
the taxpayer in the State.

By contrast, the Court was quite clear in the
opinions upholding tax-collection obligations that it
distinguished in Nat? Bellas Hess, Inc. v. Dept of

Revenue of I/linois, 386 U.S. 753 (1967), that the Court
was not evaluating a tax imposed on the business
itself. Instead, that line of cases established that, if a
use-tax collection obligation could be imposed, it was
because the State a/ready had a predicate right to
impose a tax on an activity of the business in that
State. In other words, if the Complete Auto standard
is satisfied, then it follows that a use-tax collection
obligation can be imposed. This analytical template
was followed by the Court in Nat? Geographic Soc’y v.
California Bd. of Equalization, 430 U.S. 551 (1977).

Complete Auto does not authorize imposing a tax
on a business because of someone else’s activity in the
State. Because Complete Auto nexus is properly
understood as an individualized question based on the
taxpayer's activities, as to South Dakota’s sales tax —
the only tax in question in this case — the issue under
Complete Auto is whether a specific remote retailer's
activity, in selling at retail, has a “substantial nexus
with the taxing State.” Does a sufficient part of the
retailer's activity occur in the State? It appears the
record is insufficient to resolve that issue.

Given that the Petitioner acknowledges the Court
can retain the specific holdings of Bellas Hess and
Quill, Pet’r’s Br. at 42, what is really at stake (though
not acknowledged by the Petitioner) is whether the
nexus test of Complete Auto should be revised.
Because the Petitioner has not come to grips with the
real import of Complete Auto, and because South
Dakota’s conclusive presumption of in-state activity
based on transaction volumes is inconsistent with
Complete Auto, the Petitioner's argument should be

rejected.

6

2. Deciding this case requires first deciding
whether the Complete Auto test or the Bellas
Hess/National Geographic framework applies. For
this purpose, the Court should exercise skepticism
about the ways Petitioner, its supporting amici, and
the South Dakota Supreme Court have characterized
the tax in question. See Wisconsin v. J.C. Penney Co.,
311 U.S. 435, 443 (1940) (“[T)|he descriptive pigeon-
hole into which a state court puts a tax is of no
moment in determining the constitutional significance
of the exaction.”).

Here, the concept of “sales tax” propounded by the
Petitioner is any “tax collected or remitted by the
seller,” regardless whether the legislature imposed the
tax on sellers or consumers or on sales or use. Pet’r’s
Br. at 3 n.1. This abstracted approach is not faithful
to South Dakota’s own sales tax enactment, let alone
the diverse transactional and consumption taxes
enacted by the various States. South Dakota’s tax is
imposed “upon the privilege of engaging in business as
a retailer . . . upon the gross receipts from all sales.”
S.D. Codified Laws § 10-45-2 (Supp. 2017). Seeking
reimbursement from the customer is optional at the
discretion of the retailer. /d. § 10-45-22. The tax is
imposed on the seller and is paid by the seller,
whether or not the tax amount is added to the selling
price. This means Complete Autos nexus formula
applies, and this formula asks whether a particular
taxpayer is engaged in retailing activity in South
Dakota.

Notwithstanding the text of South Dakota's
statute, the South Dakota Supreme Court said below,
“Generally, sellers selling merchandise in South
Dakota have an obligation to collect and remit sales
tax on each transaction.” State v. Wayfair, Inc., 901

~l

N.W.2d 754, 756 (2016) (citing S.D. Codified Laws §
10-45-27.3). However, this statute does not require
tax collection by the retailer. Instead, it says any
“person whose receipts are subject to the tax .. . shall .

. file a return, and pay any tax due... .” Nothing in
the opinion suggests that the Court was intentionally
construing the statutory text rather than simply
misunderstanding it.

Having reached this critical pivot-point’§ in
Commerce Clause jurisprudence, when the Petitioner
asks the Court to abrogate a long-standing precedent
affecting billions of dollars, the Court should take even
more than ordinary care in describing what the object
of South Dakota’s sales tax is and which taxes are
governed by the Court’s resolution of this case.

ARGUMENT

I. Complete Autos Background Shows That Nexus
With The Activity Is An _ Individualized
Assessment, And This Case Is Not Properly
Framed Upon Individualized Facts.

A. The entire body of law on which Complete Auto
based its nexus test focused on whether the
taxpayer conducted the taxed activity in the
State.

1. When a petitioner asks the Court to abrogate one
of its decisions, consideration of the deeper background
of that decision in the Court’s precedents is essential.
Complete Auto Transit, Inc. v. Brady, 430 U.S. 274
(1977), is an excellent example of such a historical

review. See id. at 279-87. The Petitioner in this case
obscures the background of both Qui// and Complete
Auto by taking the Comp/ete Auto formula as a simple
and encompassing doctrinal starting point.

The Petitioner asks the Court to reject the rule in
Quill Corp. v. North Dakota, 504 U.S. 298 (1992),
simply by applying the nexus test of Complete Auto as
written. If “an activity” has substantial nexus with
the taxing State, as the Petitioner alleges a sale
consummated by delivery to the purchaser in the State
does, it supposedly does not matter whether the
taxpayer has a substantial nexus with the taxing
State. See Pet’r’s Br. at 22-23 (quoting Quill, 504 U.S.
at 311 (quoting Complete Auto, 430 U.S. at 279))
(emphasis altered). Certain supporting amici curiae
follow this line of argument. ?

This position does not accurately reflect the
substance of the Complete Auto test in light of either
the Court’s analysis in that case or the legacy of case
law on which the test was based. The Petitioner, in
other words, betrays Chief Justice Marshall’s counsel
to take the “general expression” of the Complete Auto
nexus test “in connection with the case in which |that!
expression| is} used.” Cohens v. Virginia, 19 U.S. (6
Wheat.) 264, 399 (1821).

* See Br. of National Governors’ Association, et al., at 20
(Court should “simply apply the Complete Auto test as it was
originally articulated”). See also Br. for Colorado, et al., at 1
(urging Court to adhere to Complete Auto); Br. of Brill, et al., at
17 (agreeing with Petitioner that the tax satisfies nexus test of
Complete Auto). Contra Br. of Retail Litigation Center, et al., at
28 (“South Dakota’s law focuses on a retailer's sales activity.”)
‘emphasis altered)

9

In Complete Auto, the tax was imposed on the
privilege of doing business measured by gross income,
specifically under a subsection applicable to providing
transportation of persons or property between points
within the State. 430 U.S. at 275. The taxpayer
admitted providing such transportation but claimed it
could not be taxed because it “was but one part of an
interstate movement.” /d. at 277. Before getting to
Complete Autdés oft-cited four-prong test, the Court
articulated how che test applied to the taxpayer in
question. The taxpayer—

did not allege that its activity which
Mississippi taxes does not have a
sufficient nexus with the State; or that
the tax discriminates against interstate
commerce; or that the tax is unfairly
apportioned; or that it is unrelated to
services provided by the State.

/d. at 277-78 (emphasis added) (footnote omitted). In
other words, in this sentence the Court articulated
what the taxpayer must allege in order to plead a
Commerce Clause violation. As to nexus, it must
allege and then show that its own activity, being the
object of the tax, is not conducted in the State. This is
an “as-applied” test.

Then, having recited the gaps in the taxpayer's
pleading, the Court proceeded to synthesize the
relevant precedents relied upon by Mississippi in
almost exactly the same terms. This synthesis has
become the foundational “general expression” of
Commerce Clause requirements:

These decisions have considered not the
formal language of the tax statute but

10

rather its practical effect, and have
sustained a tax against Commerce Clause
challenge when the tax is applied to an
activity with a substantial nexus with the
taxing State, is fairly apportioned, does
not discriminate against interstate
commerce, and is fairly related to the
services provided by the State.

/d. at 279 (emphasis added; footnote omitted).

In this way, the “general expression” of Commerce
Clause requirements was explicitly grounded on the
decisions of the Court that had been brought to the
argument by the State of Mississippi, cited in footnote
8 of the Complete Auto opinion. So, too, did the Court
ground its description of what Complete Auto Transit
failed to plead to show a Commerce Clause violation in
specific prior opinions, cited in footnote 6 of the
opinion. These prior decisions show that the “general
expression” of the nexus test focuses not on a
disembodied “activity” without an actor, but on
whether the taxpayer's activity, to which the tax is
applied, is conducted in a substantial way within the
State.

Taking the nexus decisions in footnote 6 first:*

¢ Gen. Motors Corp. v. Washington, 377 U.S.
436 (1964), involved a gross receipts tax on

* In footnote 6, the Court also cited two discrimination cases,
Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318 (1977);
Clark v. Paul Gray, Inc., 306 US. 583 (1939), and two “fair
relationship” cases, ///inois Cent. R. Co. v. Minnesota, 309 U.S.
157 (1940); Ingels v. Morf, 300 U.S. 290 (1937). Each of these
taxes or fees was imposed on in-state activities or property of the
burdened taxpayer.

1]

wholesaling. The Court held there was a
sufficient “local incident” to support the tax,
because General Motors had “employees who
were residents of the State and who
performed substantial services in relation to
General Motors’ functions therein,
particularly with relation to the
establishment and maintenance of sales,
upon which the tax was based.” /d. at 477
(emphasis added).

Standard Pressed Steel Co. v. Washington
Dept of Revenue, 419 U.S. 560 (1975),
involved the same gross receipts tax. In its
due process analysis, the Court held the
taxpayer's “in-state activities’ were sufficient
to uphold nexus to tax, “(flor appellant’s
employee, Martinson, with a full-time job
within the State, made _ possible’ the
realization and continuance of valuable
contractual relations between appellant and
Boeing.” /d. at 562 (emphasis added).

Taking next the nexus cases cited in footnote 8:

General Motors (see above).

Northwestern States Portland Cement Co. v.
Minnesota, 358 U.S. 50 (1959), involved the
State’s corporate net income tax. The Court
hela that such a tax is generally permissible
if, among other things, it “is properly
apportioned to local activities within the
taxing State forming sufficient nexus to
support the same.” /d. at 452 (emphasis
added). The Court then found the imposition
in question permissible because the taxpayer
had “activities in Minnesota consist|ing] of a

12

regular and systematic course of solicitation
of orders for the sale of its products” through
four employed salespersons. /d. at 454.

e Memphis Natural Gas Co. v. Stone, 335 U.S.
80 (1948), involved a franchise or excise tax
on doing business in the State levied on
capital employed within the State. /d. at 81-
82. The taxpayer operated a gas pipeline
running through Mississippi. The Court
relied on the _ state supreme _ court’s
interpretation that the local incidents of the
tax were maintaining, keeping in repair, and
otherwise attending to the pipeline facilities
in the State and held these local activities
validated the tax because they could not
form the basis for taxation by another State.
Id. at 86, 88.

e Wisconsin v. J.C. Penney Co., 311 U.S. 435
(1940), involved a due process challenge to a
tax on the privilege of declaring dividends
out of income derived from property located
and business transacted in Wisconsin. /d. at
439 & n.1. Notwithstanding the fact that the
tax was formally triggered by an action
(declaring dividends) that, in this case,
occurred outside Wisconsin, the Court
upheld the tax because the “substantial
privilege of carrying on business _ in
Wisconsin,” id. at 444-45 — “within its
borders,” jd. at 442 — supported it.

In sum, all of the cases relied on by the Court in
Complete Auto as the sources of its Commerce Clause
template rested their nexus holdings on the local
activities ofthe taxpayer in the State.

13

The balance of the Complete Auto opinion traced
the themes of practicality and realism evoked in the
Court’s prior opinions in order, ultimately, to justify
overruling Spector Motor Serv., Inc. v. O'Connor, 340
U.S. 602 (1951). These opinions, too, focused on/y on
situations where the tax was imposed on activities of
the taxpayer in the State.

In Freeman v. Hewit, 329 U.S. 249 (1946), the tax
was imposed on the gross income of residents and
domiciliaries. In this case it was imposed on the sale
of stock by an estate trustee domiciled in Indiana. /d.
at 250. Justice Rutledge’s concurrence, discussed in
Complete Auto, 430 U.S. at 280-81, highlighted that
the Indiana domiciliary’s activity in selling the stock
had sufficient factual connections to Indiana to satisfy
due process. 329 U.S. at 271.

The Court then rehearsed the facts and analysis of
Memphis Natural Gas, which it had already cited as a
source of its Commerce Clause synthesis in footnote 8
of the Complete Auto opinion. 430 U.S. at 281-82. The
Court reiterated that it had found reasonable the state
court’s position that Mississippi had not sought to
“secure anything from the corporation by this statute
except compensation for the protection of” the
taxpayers “enumerated local activities." Memphis
Natural Gas, 33 U.S. at 93.

The Court in Complete Auto then identified the
significant nexus factor in Northwestern States as the
fact that the tax was properly apportioned “to local
activities within the taxing State” (i.e., the taxpayer's
systematic solicitation of sales) that formed the basis
for nexus to support the tax. 430 U.S. at 285 (citing
Northwestern States, 358 U.S. at 464).

ae |
ll .

14

Finally, the Court recited a prior summary of its
own cases in the opinion in Colonial Pipeline Co. v.
Traigle, 421 U.S. 100 (1975), where it said its decisions
had “sustained . . . state corporate taxes upon foreign
corporations doing an exclusively interstate business
when the tax is related to a corporation's \ocal
activities,” among other criteria. Complete Auto, 430
U.S. at 287 (quoting Colonial Pipeline, 421 U.S. at 108)
(quotation marks omitted) (emphasis added).

To repeat, all the decisions on which Complete Auto
relied for the oft-cited nexus formulation, in finding a
sufficient nexus, rested on the fact that the tax was
justified by a consequential, local activity of the
taxpayer in the State. None of them said or even
implied that the Court would uphold a tax in the
absence of a “local” activity of the taxpayer. In light of
how Complete Auto applied its “general expression” of
the nexus prong in Complete Auto itself, and in light of
the entire history behind it, the “general expression”
necessarily implies that a tax will be sustained “when
the tax is applied to an activity |of the taxpayer] with
a substantial nexus with the taxing State,” and this
“substantial nexus” rests on the fact that a
consequential element of the taxpayer's activity occurs
in the State.‘

4 See also Allied-Signal, Inc. v. Dir., Div. of Taxation, 504 U.S.
768 (1992). In that case, the Court observed that the Commerce
Clause nexus limitation is grounded in part on the understanding
that “to permit each State to tax activities outside its borders
would have drastic consequences for the national economy.” /d.
at 777-78 (emphasis added). This concern is allied, said the
Court, to Due Process Clause jurisdictional limitations, and “we
have not abandoned the requirement that, in the case of a tax on
an activity, there must be a connection to the activity itself,

15

2. The Petitioner's claim that Complete Auto is
satisfied in this case appears based on the idea that
the “sale” itself is the activity taxed by South Dakota’s
statute, and the “sale” itself has the necessary nexus
with the State. The Petitioner’s brief draws support
from another “general expression,” this one in
Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514
U.S. 175 (1995): “a sale of tangible goods has a
sufficient nexus to the State in which the sale is
consummated to be treated as a local transaction
taxable by that State.” /d. at 184, quoted in Pet’r’s Br.
at 22. However, the Court in Jefferson Lines obviously
did not mean by this statement to undermine Qui//, as
the Jefferson Lines opinion itself cited @Qui// as
representing its dormant Commerce Clause
jurisprudence. See 514 U.S. at 179.

The facts in Jefferson Lines and in the lineage of
cases that lay behind the Petitioner's quotation are
entirely consistent with reading Complete Auto as
allowing a tax on a seller only when the seller is
conducting at least some portion of the taxable activity
in the State. As the Court said, the facts justifying
nexus in Jefferson Lines were that Oklahoma was the
State where Jefferson Lines originated service to
customers who bought tickets there. 514 U.S. at 184.

The Petitioner’s brief does not identify the case
Jefferson Lines cited in support of its general
expression, McGoldrick v. Berwind-White Coal Mining
Co., 309 U.S. 33 (1940). That case involved a New
York City sales tax, and the Court noted, Berwind-
White maintained a sales office in New York City, and

rather than a connection only to the actor the State seeks to tax.”
Id. at 778 (citing Quil/, 504 U.S. at 306-08) (emphasis added).

16

“lajll the sales contracts with the New York customers
in question were entered into in New York City.” /d.
at 44. But in that case, the tax was imposed expressly
upon the purchaser, 4 at 42, and not on the activity of
the seller.

The Court in Berwind-White cited a number of
prior decisions in support of the principle that a sale is
a local event notwithstanding that the goods had an
out-of-state origin. See id. at 50. For example, Hinson
v. Lott, 75 U.S. (8 Wall.) 148 (1868), involved an
Alabama tax imposed on an Alabama merchant with
respect to liquors brought into the State for sale from
elsewhere. Sonneborn Bros. v. Cureton, 262 U.S. 506
(1923), involved a Texas tax on wholesale dealers in oil
measured by sales within the State. It was upheld
against a New York corporation, having an office in
Dallas and warehouses elsewhere in Texas, on oil
imported from outside the State for sale and delivery
in Texas. See id. at 507-08.

In most if not all of these cases, the Court upheld
the tax, in the face of arguments that the tax was
imposed unlawfully upon interstate commerce,
because the sales were sufficiently “local” events.
Thus, the “general expression” in Jefferson Lines arose
directly from the now-obsolete concern to distinguish
taxes on local events from taxes on “interstate
commerce” itself, which had animated the position of
the Court in Freeman v. Hewitt and Spector Motor
Service. Neither the “general expression” in Jefferson
Lines nor its origins in prior opinions impeach the
understanding of Complete Auto discussed above

17

B. The Court’s use-tax collection cases show the
collection obligation is dependent on the
taxpayer’s carrying on a directly taxable activity
in the State; mere advertising was not seen as a
substantial part of making sales.

In Quill, this Court said that “Bellas Hess is not
inconsistent with Complete Auto and our recent
cases.” 504 U.S. at 311. Further, as to Complete
Autos nexus test, the Court said Nat? Bellas Hess,
Inc. v. Dep't of Revenue of Illinois, 386 U.S. 753
(1967)—

stands for the proposition that a vendor
whose only contacts with the taxing State
are by mail or common carrier lacks the
“substantial nexus” required by the
Commerce Clause.

Id. A look “under the hood” at the case law
distinguished by Bellas Hess shows what this meant.

The Illinois tax at issue in Bellas Hess was a use
tax. The State sought to enforce the use-tax collection
obligation against National Bellas Hess because it fit
the statutory definition of a “retailer doing business in
this State” by virtue of “|e|ngaging in soliciting orders
within this State from users by means of catalogues or
other advertising.” 386 U.S. at 754, 755 (quoting III.
Rev. Stat. c. 120, § 439.2 (1965)) (quotation marks
omitted).

The Court in Bellas Hess ultimately rejected what
it called “advertising nexus,” id. at 758 n. 11, partly in
reliance on the facts and holding of Miller Bros. Co. v.
Maryland, 347 U.S. 340 (1954). See id. at 758-59. In
doing so, the Court distinguished five other
precedents, making clear that use-tax collection

18

obligations were not considered “direct” taxes on the
seller and that the power of the State to enforce such
an obligation had to be based on some activity of the
seller in the State — not consumption by the customer
~— that established a baseline nexus.

In Felt & Tarrant Mfg. Co. v. Gallagher, 306

U.S. 62 (1939), the Court addressed whether

California could compel a retailer “to serve

as an agent for collecting the [use| tax.” /d.

at 64. The seller hired two “general agents”

to solicit sales and leased an office in the

State for their use in the business. The

Court did not rely expressly on the seller's

activities in the State in upholding the

obligation, but rather upon a prior decision

having the same flavor, see id. at 66-68:

o In Monomator Oil Co. v. Johnson, 292
U.S. 86 (1934), lowa imposed a use tax
on motor fuel. The corporation in
question bought and sold, manufactured
and blended gasoline and _ similar
products, including at a refinery in
lowa. Id. at 90-91. “Instead of
collecting the tax from the user through
its own officers, the state makes the
distributor its agent for that purpose.
This is a common and entirely lawful
arrangement.” /d. at 93 (citations
omitted). The Court concluded that “the
statutes properly construed lay no tax
whatever upon distributors.” /d. at 95.°

* The Court in Fe/t & Tarrant also relied, in points not
germane to the argument, on Henneford v. Silas Mason Co., 300

19

e In Nelson v. Sears, Roebuck & Co., 312 U.S.
359 (1941), the taxpayer had retail stores in
lowa and also conducted mail-order sales by
use of a catalogue. Like California’s statute
in Felt & Tarrant, lowa imposed a use-tax
collection obligation on retailers that
maintained a place of business in the State.
Id. at 361. Per the Court, “the nub of the
controversy centers on the use of respondent
as the collection agent of lowa.” On the
facts, the Court held that the mail orders
“are still part of respondent's lowa
business,” and because lowa had extended
Sears the privilege of conducting business
within the State, “Iowa can exact this
burden as a price of enjoying the full
benefits flowing from its lowa business.” /d.
at 364 (citing Wisconsin v. J.C. Penney Co.,
311 U.S. 435 (1940)). The Court
distinguished pure mail-order houses as “not
doing business in the state as foreign
corporations.” /d. at 365.

e Nelson v. Montgomery Ward & Co., 312 U.S.
373 (1941), was a companion case to Sears,
Roebuck and involved the same lowa tax.
Given that employees at local stores
conducted activities in lowa “pursuant to its
permit to do business in that state,” the fact
that other employees outside lowa handled
mail-order sales did “not permit respondent
to escape the burden which lowa has
exacted as a price of enjoying the full

U.S. 577 (1937), and Bowman v. Continental Oil Co., 256 U.S. 642
(1921).

20

benefits flowing from its aggregate lowa
business.” Id. at 375 (citing Sears,
Roebuck). An additional factor was present
~ the placement of advertisements by the
local stores regarding mail-order products as
well as in-store merchandise. To the Court,
this fact meant that Montgomery Ward
solicited mail-order sales “in lowa” through
“local advertising” that was no different, in
constitutional terms, from _local-agent
solicitations as in Fe/t & Tarrant. Td. at
376.

Gen. Trading Co. v. State Tax Commn of
Jowa, 322 U.S. 335 (1944), involved the
same use-tax collection statute as in Sears,
Roebuck and Montgomery Ward, but in this
case the corporation had not qualified to do
business in lowa and solicited orders via
traveling “salesmen.” /d. at 337. The Court
observed that the Fe/t & Tarrant case was
“indistinguishable” — “nothing [could] turn
on” variation in the means of soliciting
orders within the State. /d. at 337. “To
make the distributor the tax collector for the
State is a familiar and sanctioned device.”
Id. at 338 (citing Monamotor and Felt &
Tarrant).

Finally, in Seripto, Inc. v. Carson, 362 U.S.
207 (1960), Florida imposed the use-tax
collection duty on dealers who solicited
business either by representatives or by the
distribution of advertising matter. /d. at
207 & n.1 (citing and quoting Fla. Stat. §
212.06). Scripto solicited sales through 10
broker/salespersons operating in the State

21

designated as independent contractors. /d.
at 209. Noting that the company “is charged
with no tax—save when, as here, [it] fails or
refuses to collect it from the Florida
customer,” id. at 211, the Court held that
the test for compelling use-tax collection “is
simply the nature and extent of the
activities of the appellant in Florida.” /d. at
211-12 (emphasis added). The Court
distinguished Miller Bros. on this fact:
“Marylanders went to Delaware to make
purchases—AMiller did not go to Maryland
for sales.” /d. at 212.

In all these situations, this Court said in Bellas
Hess, “the out-of-state seller was plainly accorded the
protection and services of the taxing State.” 386 U.S.
at 757.® In other words, had the State framed a tax
imposed directly on the out-of-state sellers in these
cases on account of their own activities in the State (as
it had done in some of the cases), it could have
enforced that tax, too — so the potentiality of a State
tax consistent with Complete Auto existed. The
absence of such a potentiality in Bellas Hess — given
that the Court did not accept the validity of an
“advertising nexus,” id. at 758 n.11 — defeated Illinois’s
attempt to enforce the use-tax collection obligation.

* See also Nat? Geographic Soc'y v. California Bd. of
Equalization, 430 U.S. 551, 556 (1977) (advertising sales activity
at two offices in the State established “a relationship or ‘nexus’
between the Society and the State,” which rendered derivative
use-tax collection obligations constitutional).

C. South Dakota’s conclusive nexus presumption
based on sales volumes does not comport with
Complete Autos as-applied test; if “delivery” is
the targeted activity of online retailers, the State
needs to show the particular delivery mechanism
can be attributed to the retailer.

1. South Dakota enacted a conclusive presumption
of a “substantial nexus” between the State and the
selling activities of remote retailers based on sales
volumes — either an annual level of gross revenue from
sales “delivered into” the State of $100,000 or more, or
an annual number of taxable transactions “for delivery
into” the State of 200 or more. S.B. 106, 91* Legis.
Assemb. Session, §§ 1(1), (2) (S.D. 2016). This
“economic nexus” approach may have an attractive
simplicity, but it does not comport with the
requirement of Complete Auto, properly understood,
that the tax be applied to an activity of the taxpayer
conducted in consequential part in the State.

The reason the nexus prong of Complete Auto is
properly conceived as an as-applied test is that, if the
State is not taxing an activity of the taxpayer in the
State, it is improperly taxing an activity occurring
somewhere else. See Allied-Signal, Inc. v. Dir., Div. of
Taxation, 504 U.S. 768, 777-78 (1992).

South Dakota’s approach attempts to avoid the
fundamental factual question underlying this Court’s
cases about nexus over selling activities. The opinion
in Scripto captured the issue most clearly in
distinguishing that case from Miller Bros. In Miller
Bros., the Court said, “Marylanders went to Delaware
to make purchases—Miller did not go to Maryland for
sales.” Scripto, 362 U.S. at 212. The same question
obtains for sales on the Web: did the South Dakotan

23

go to the retailer to make a purchase, or did the
retailer go to South Dakota to make the sale? This
question is not answered by arbitrary volume

thresholds.

What is at stake in adopting a conclusive economic
nexus presumption is therefore not only overthrowing
Quill but also whether the Court will discard the
meaning of the “activity” test of Complete Auto and
push aside the underlying concern of the Commerce
Clause about the consequences of allowing one State to
tax activities that take place in other States, as
exemplified by Miller Bros. and Allied-Signal.

2. The South Dakota statute might be interpreted
as trying to meet the Complete Auto test by
attributing the activity of “delivery” of tangible
personal property, electronically transferred property,
and services “into South Dakota” to the seller. See
S.B. 106, §§ 1(1), (2) (Pet’r’s Br. App.la) (limiting the
gross receipts or transactions counting toward the
conclusive-presumption thresholds to products
delivered into South Dakota). That is, should the
statute be understood as ascribing the delivery process
to the remote seller and treating the delivery process,
part of which necessarily occurs in South Dakota, as
an integral component of making sales at retail?

Treating a remote seller's management of delivery
mechanisms in a State as a “local incident” of
retailing, sufficient to serve as a “substantial nexus”
with the retailing activity, would not be consistent
with this Court’s tradition, as shown by Bellas Hess
and such cases as American Oil Co. v. Neill, 380 U.S.
451 (1965), and Norton Co. v. Dept of Revenue, 340
U.S. 534 (1951). Regardless whether it might be a
legitimately debatable question within the Complete

24

Auto framework, the text of the statute does not
support a finding that South Dakota’s legislature
intended to base its taxing authority on a “delivery
nexus” apart from sales volumes, and the issue was
not argued or decided below.’

Moreover, delivery methods for tangible personal
property, electronically transferred property, and
services are diverse. The latter two classes, in
particular, raise the Miller Bros. question whether
South Dakotans went “to” the seller to make their
purchases. In any event, Practitioners are not aware
of adequate data in the record about Respondents’
delivery methods that could support a conclusion at
this stage that they are engaged “in business as a
retailer” in South Dakota.

3. The question presented by the Petitioner is not
well framed. Rather than “abrogate” Qui//, the
Petitioner now tells this Court that it can retain
Quills holding as far as it goes. Instead, the
Petitioner asks the Court to validate a conclusive
nexus presumption for e-commerce based on sales
volumes. This request actually asks the Court to
abrogate the more fundamental, as-applied nexus test
of Complete Auto. To be faithful to Complete Auto and
the body of law it represents, the Court should reject
the Petitioner's argument and affirm the decision

below.

? Also, nothing in S.B. 106 indicates any intent by South
Dakota to rely on an “advertising nexus,” cf Bellas Hess, 386 U.S.
at 758 n.11, by treating advertising in the State as an integral
component of making sales at retail. The South Dakota Supreme
Court also said nothing about considerin: advertising or delivery
as in-state components of the retail business in the decision

below.

II. Confusion About The Nature Of The Tax In
Question Should Be Avoided.

The Petitioner asks the Court to rest its decision in
this case on a new, nationwide abstraction of the
diverse taxes that may be implicated by conclusive
economic nexus presumptions. Ostensibly “(flor
clarity,” the Petitioner uses “sales tax” to mean “a tax
collected and remitted by the seller” and “use tax” to
mean “a tax remitted by the consumer.” Pet’r’s Br. at
3n.1.

Reimagining state taxes with this typology
undermines the “substantial nexus” test of Complete
Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977),
because it necessarily confuses the issue whether “the
tax is applied to an activity” of the taxpayer. /d. at
279 (emphasis added). Each tax, whether well framed
by the legislature or not, has an object or incident. It
is “applied” to an object or incident. Fashioning a
constitutional rule based on abstracted mechanisms of
collection and remittance rather than concrete state
legislative enactments would step away from the
“realities” the Court is trying to reflect. See Trinova
Corp. v. Michigan Dept of Treasury, 498 U.S. 358, 372
(1991). A use tax, even if collected by a retailer, is
typically applied to “the privilege of use after
commerce is at an end.” Henneford v. Silas Mason Co.,
300 U.S. 577, 582 (1937). What good would it
accomplish suddenly to call use taxes “sales taxes,”
when the Court has been clear for many decades that
it is not the case?

According to the statutory text, South Dakota
“applies” its sales tax to the retailer alone. The tax is
imposed “upon the privilege of engaging in business as
a retailer ... upon the gross receipts from all sales.”

26

S.D. Codified Laws § 10-45-2 (Supp. 2017). Seeking
reimbursement from the customer is optional at the
discretion of the retailer. /d. § 10-45-22. This means
Complete Autos nexus formula asks whether the
particular person is engaging in retailing activity in
South Dakota.

A different model is exemplified by Washington
State, where the “sales tax” is imposed “on each retail
sale in this state” of specified goods and services,
Wash. Rev. Code § 82.08.020(1), and the statute
requires the tax “must be paid by the buyer to the
seller.” /d. § 82.08.050(1). Indeed, in contrast to South
Dakota, Washington generally prohibits sellers from
directly or indirectly paying the tax owed by the buyer,
on pain of a misdemeanor. /d. § 82.08.120.°

The Court does not need to treat these different
models the same way in order to sustain a coherent
Commerce Clause framework. Complete Auto controls
the one (South Dakota) and the seller’s obligation to
collect the tax in the other (Washington) is not treated
as a direct tax but instead can be triggered by non-
retailing activities of the seller in the State. See /rwin
Naturals v. State, 382 P.3d 689, 695-96 (Wash. Ct.
App. 2016) (relying on Nat? Geographic Soc’y v.

®* The differences in how these state legislatures have selected
the object of taxation are not merely a matter of “formal
language,” cf Complete Auto, 430 U.S. at 279, but instead they
have real-life consequences. For example, California’s sales tax is
generally in the South Dakota model — a tax imposed on a
retailer's gross receipts for the privilege of selling tangible
personal property, Cal. Rev. & Tax. Code § 6051 (2016 and Supp.
2018) — except that a California retailer’s right to obtain
reimbursement of the sales tax from a customer depends on the
customer's express or implied consent as a matter of contract.
See Cal. Civ. Code § 1656.1 (2016 and Supp. 2018).

California Bd. of Equalization, 430 U.S. 551 (1977)),
cert. denied, 138 S. Ct. 238 (2017).

The South Dakota situation is confused, however,
by the South Dakota Supreme Court’s apparent error
in stating that state law requires the retailer to collect
sales tax from the purchaser. See State v. Wayfair,
Inc., 901 N.W.2d 754, 756 (2016) (citing S.D. Codified
Laws § 10-45-27.3). However, this section does not
require tax collection by the retailer. Instead, it says
any “person whose receipts are subject to the tax...
shall ... file a return, and pay any tax due... .”
Nothing in the opinion suggests that the Court was
construing the statutory text rather than simply
misunderstanding it.

The website of the State’s Department of Revenue
contains statements also indicating the Court’s
statement was a casual error. Per the Department of
Revenue’s Sales and Use Tax Guide, “South Dakota
law allows the seller to add the tax to the price of the
product or service. However, the seller is liable for the
sales tax due, whether or not it is collected.” “Sales
and Use Tax Guide” at 3 (July 2017) (emphasis

added), A blic
atione/Males Taxa ( we visited April 3, 2018).

These facts are inconvenient also for the argument
of the United States as amicus curiae supporting the
Petitioner. It argues that Complete Auto does not
control this case, but instead the Court should apply
the Commerce Clause balancing framework of Pike v.
Bruce Church, Inc., 397 U.S. 137 (1970). Br. of United
States at 8. It claims that “|t|his case concerns the
application of the dormant Commerce Clause to a state
tax-collection requirement.” /d. at 1. Perhaps based
on the section title of S.D. Codified Laws § 10-64-2

28

(Supp. 2017), it argues that remote sellers are
required “to collect taxes on the sales of goods or
services into the State.” /d. at 6. In fact, the cited
statutory text does not impose this requirement, but
instead requires remote sellers to “remit the sales tax
and |[to! follow all applicable procedures and
requirements of law as if the seller had a physical
presence in the state.” S.D. Codified Laws § 10-64-2
(Supp. 2017) (emphasis added). This remittance
requirement, as noted above, is in fact a payment
requirement, with no obligation to seek any kind of
reimbursement from the customer. /d. §§ 10-45-22,
10-45-27.3.

It may be tempting to say South Dakota’s sales tax
is a sales tax like any other (according to the
Petitioner) or is a tax-collection obligation like any
other (according to the United States), but these
positions are rather like calling an apple a banana.
Unless the Court wants to fundamentally alter the
scope and meaning of the nexus text of Complete Auto,
it should treat the tax as imposed on the retailer's
retailing activity, just exactly as the statute says.
South Dakota’s conclusive nexus presumptions do not
establish the fact of an in-state activity of the retailer,
as required by Complete Auto, and should be rejected
by this Court.

* The brief for the United States does not cite to the South
Dakota Supreme Court decision.

29

CONCLUSION

For the foregoing reasons, Amici Curiae
Washington State Tax Practitioners respectfully
request that the Court affirm the decision below.

Respectfully submitted,

DIRK GISEBURT*
Counsel of Record
Davis Wright Tremaine LLP

1201 Third Avenue, Suite 2200
Seattle, WA 98101

206-757-8049
* Counsel of Record

April 4, 2018

APPENDIX

la
APPENDIX A

LIST OF AMICI CURIAE
WASHINGTON STATE TAX PRACTITIONERS

Norman J. Bruns, Garvey Schubert Barer P.C.,
Seattle, Washington

Michelle DeLappe, Garvey Schubert Barer P.C.,
Seattle, Washington

Garry G. Fujita, Eisenhower Carlson PLLC,
Tacoma, Washington

Dirk Giseburt, Davis Wright Tremaine LLP,
Seattle, Washington

David Maas, Davis Wright Tremaine LLP, Seattle,
Washington

George C. Mastrodonato, Carney Badley Spellman,
P.S., Seattle, Washington

Michele G. Radosevich, Davis Wright Tremaine
LLP, Seattle, Washington

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0787%3A70. Public record. Not legal advice.