Here are the materials in SEC v. Sugarman (S.D. N.Y.):
Details on the scheme from the order: Continue reading
Southern District of New York
United Parcel Service Inc. v. New York Cert Petition
Here:
Questions presented:
1. The Contraband Cigarette Trafficking Act prohibits the knowing transportation of “a quantity” of more than 10,000 untaxed cigarettes in the “possession” of unauthorized persons. 18 U.S.C. § 2341(2). The first question presented is whether multiple shipments from different shippers may be aggregated to satisfy the 10,000-cigarette threshold.
2. The Prevent All Cigarette Trafficking Act of 2009 exempts UPS by name if its tobacco-delivery agreement with New York is “honored” nationwide. 15 U.S.C. § 376a(e)(3)(B)(ii)(I). The second question presented is whether substantial compliance is a prerequisite to this statutory exemption.
Second Circuit materials here:
DCT materials here.
Federal Court Holds UPS Liable for Transporting Indian Smokes
Here is the 200+ page order in State of New York v. United Parcel Service (S.D. N.Y.):
Prior post here.
New York Prevails over UPS in Indian Country Smokes Case
Here are the materials in State of New York v. United Parcel Service (S.D. N.Y.):
An excerpt:
The fundamental reason why plaintiffs are entitled to summary judgment and defendant is not is that when UPS was transporting unstamped cigarettes (how many is “TBD”), it was transporting contraband. Pre-amendment § 471 confirms that stamps were required, that taxability was presumed, and that the burden of proving otherwise was on UPS. UPS has not carried this burden. UPS is not entitled to rely on the judicially imposed injunctions or stays of enforcement obtained by Indian tribes, nor is it entitled to rely upon forbearance. It is also of no moment that there were difficulties in determining when tax was required to be paid or not, and it is also of no moment that the State had stood down on collection from reservation retailers altogether. At the end of the day, the situation — which may have advantaged reservation retailers — placed UPS in a precarious position; without its own statutory exemption or legal assurance, and in the absence of information as to ultimately taxability of the cigarettes they were shipping, transporting shipments was a risky business indeed. But this was a business risk. UPS could choose to undertake such risk or not. One thing has [38] always been clear: UPS has never had exemption from the CCTA.
Second Circuit Affirms Otoe-Missouria Tribe v. New York Dept. of Financial Regulation
Here is the opinion:
From the court’s syllabus:
Plaintiffs‐appellants (“plaintiffs”) appeal from the denial of a preliminary injunction by the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge). Plaintiffs are two Native American tribes, tribal regulatory agencies, and companies owned by the tribes that offered high interest, short‐term loans over the internet. The interest rates on the loans exceeded caps imposed by New York State law. When the New York State Department of Financial Services sought to bar out‐of‐state lenders from extending such loans to New York residents, the plaintiffs sued for a preliminary injunction, claiming that New York’s ban violated the Indian Commerce Clause. But plaintiffs bore the burden of proving that the challenged transactions fell within their regulatory domain, and the District Court held that they failed to establish a sufficient factual basis to find in their favor. Because this conclusion was a reasonable one, the District Court did not abuse its discretion in denying the injunction.
Complete Second Circuit Briefing in Otoe-Missouria Tribe v. New York Dept. of Financial Regulation
Opening Second Circuit Brief in Otoe-Missouria v. NY Dept. of Financial Regulation
Federal Court Denies Injunction in Otoe-Missouria Tribe v. New York State Dept. of Financial Services
City of New York Wins Injunction against Seneca-Based Tobacco Wholesalers
Here are the materials in City of New York v. Wolfpack Tobacco (S.D. N.Y.):
From the court’s order:
Defendants WOLFPACK TOBACCO, CLOUD AND COMPANY, ALLEGANY SALES AND MARKETING, and PHILIP JIMERSON are enjoined from: i) Advertising or selling cigarettes to New York State residents at prices that do not include the cost of New York State taxes, and for sales to City residents, do not also include the cost of New York City taxes;ii) Selling or shipping any cigarettes without monthly reporting of the sales and/or shipments (including names, dates, addresses, quantities, prices and brands for each sale or shipment, organized by City, town or zip code) to: (a) the New York City Office of the Corporation Counsel, the New York City Department of Finance, and the New York State Department of Taxation and Finance for sales or shipments into New York State and (b) the respective state tobacco tax administrators for sales or shipments into other states; (iii) Selling or shipping any cigarettes unless the packages identify the contents as cigarettes and the packages are delivered pursuant to an age verification procedure that conforms with the procedure specified in the PACT Act; and iv) Selling or shipping more than ten pounds of cigarettes and/or smokeless tobacco in a single sale or delivery.
NYTs Coverage of Tribal Payday Lender Suit against New York
Here.
An excerpt:
Online lending has become a popular venture for Indian tribes over the last several years as states have cracked down on payday loans. The tribes say that in many cases, e-commerce activities have become a vital source of revenue, especially because their remote locations inhibit their ability to operate casinos. For the Otoe Missouria Tribe, lending revenue accounts for roughly half of the tribe’s nonfederal budget, according to a court filing.
“Every Indian tribe worth its salt has to provide health care, public safety, education and a panoply of essential services to its members,” said Matthew Fletcher, a law professor at Michigan State University and an authority on Indian law. “These tribes must reach off the reservation to conduct business because there is a desperate need for revenue.”
