By Martin I. Eisenstein, David Swetnam-Burland, & Nathaniel A. Bessey, Brann & Isaacson
The ACMA has won a hard-earned victory in its litigation against the California Franchise Tax Board (FTB). Siding with the ACMA, the California Superior Court ruled that the FTB went too far in dressing up substantive regulations as mere “guidance.”
On December 13th, San Francisco Superior Court Judge Ethan Schulman issued a carefully reasoned order granting the ACMA’s motion for summary adjudication, concluding that two guidance documents published by the FTB in 2022, Technical Advice Memorandum 2022–01 and FTB Publication 1050, are void as invalid “underground regulations.”
FTB Exceeded Its Regulatory Authority
These FTB documents purported to instruct out-of-state retailers what online activities were and were not protected by federal law (Public Law 86–272),
In simply publishing the publications on the FTB’s website, the court concluded that the FTB exceeded its regulatory authority by not complying with the California statute governing how agencies must issue regulations.
The court also made short work of the FTB’s recycled arguments that the ACMA should not have been allowed to bring its lawsuit in the first place, reaffirming that California law allows the ACMA to vindicate its members’ rights.
Court Rejects Numerous CA FTB Arguments
“Like a broken record,” the court wrote, “the FTB repeats the same objections …[that] are meritless.” The judge also chided the FTB for failing to acknowledge legal authority identified in an earlier ruling, and dismissed another FTB procedural argument “specious.”
Because this ruling resolves the case, the court will shortly enter a judgment in favor of the ACMA, after which the ball will be in the FTB’s court to withdraw the publications or take an appeal.
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The authors’ bios are linked above. For more information, contact Marty Eisenstein at meisenstein@brannlaw.com
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You can assist with specific areas of ACMA’s program of work by providing much-needed resources dedicated to a particular issue. Our Industry Action Funds are segregated accounts held by ACMA, made available as a “war chest” to deploy on specific issues that impact direct and remote marketers and their suppliers — eliminating the time and effort needed to raise funds in the heat of battle.
Please note that your contributions to ACMA Action Funds will not be used for any general ACMA “corporate purposes” other than a 5% service fee on funds raised and administered. Non-ACMA members are always eligible to make one-off donations. Such contributions support our network of consultants on whom we depend to advocate for the interests of direct and remote marketers and their suppliers. These funds are only used to pay for out-of-pocket expenses of the specific issues outlined below. Large volume donors may be considered for Steering Committees of each Fund. Click here for more information on how the funds are distributed and used.
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Use of Funds: Moneys from each fund may be used for hiring lobbyists, economists, attorneys, consultants, public relations or government relations personnel, conducting research or other surveys highlighting positions favorable to cataloging, supporting coalitions or other groups allied to our positions, paying for advertising aimed at influencing elected officials or other stakeholders, organizing grass roots outreach, education or advocacy in support of public policy positions or for other tactics favorable to ACMA policy positions. Money raised will not be used to support any political candidate or political party; these moneys must come from a Political Action Committee.
Lynn Noble is ACMA’s Vice President, Industry Relations, having joined the ACMA in May 2015, following an extensive direct marketing career in private industry as well as the US Postal Service. He is responsible for leading the membership development efforts for the ACMA through new member acquisitions and providing enhanced member value.
Throughout his career, Lynn has held key marketing & sales positions with several leading direct marketers, as well as several high-level management positions with the US Postal Service.
In 2009, at the request of the ACMA, the US Postal Service initiated a new position of Catalog Manager to lead the Service’s efforts to stabilize and grow the catalog industry. Lynn returned to the USPS to lead those efforts and was instrumental to developing a stronger industry partnership between the Postal Service and the catalog industry. Serving as the product manager for catalogs, Lynn helped to raise the awareness of catalog-specific business challenges within the executive ranks of the USPS. During his tenure, the ACMA and catalog companies enjoyed a collaborative and progressive environment that produced more stabilized rates and inclusion in key USPS promotional opportunities.
Just prior to joining the ACMA Lynn was the USPS’s Manager, Strategic Account Operations, leading a team of senior sales professionals who focused exclusively in the Catalog, Mail Order, and E-commerce arena. In addition to his Postal positions, Lynn previously held key positions with leading direct marketing companies, including Cox Target Media, Market Logic, Catalina Marketing, Freesamples.com, and Advantage Direct.
Named Vice President & Deputy Director in January 2010, Miller came to the ACMA following a lengthy career of more than two decades following the catalog/multichannel/e-commerce/retail businesses. Reporting to ACMA president & executive director Hamilton Davison, Miller oversees marketing and communications, membership development, and organizes and oversees ACMA’s National Catalog Forum, while working with Davison on most of ACMA’s postal-related efforts.
Miller started his career as a reporter with Catalog Showroom Business, following a form of retailing that was led by the likes of the Service Merchandise and Best Products retail chains.
After several years of editor/reporter roles with business magazines that followed the toy and gift industries, Miller was named associate editor of Catalog Age magazine (now Multichannel Merchant) in 1986. He rose up the ranks at Catalog Age over the next 18 years to be the magazine’s senior news editor.
Beginning in the late ’80s, Miller became Catalog Age’s postal beat reporter, where he’d follow key postal events and pull out the key catalog mail-related issues for readers. During that time, he attended many Mailers Technical Advisory Committee (MTAC) meetings and National Postal forums.
After leaving Catalog Age in 2004, Miller consulted with several catalogers and multichannel suppliers for a time, he was named news/website editor at Commercial Property News. Less than a year later, he was asked to take the reigns at Catalog Success (now All About ROI) where he served as editor-in- chief from 2006 till the end of 2009.
ACMA appointed Michael K. Plunkett as its President and Executive Director in January 2024, succeeding founder Hamilton Davison. Mr. Davison moved on to own and run a company. Mr. Plunkett brings years of executive leadership experience having been the President and CEO of the Association for Postal Commerce (PostCom) since 2017. In the newly-formed dual role, he will continue his current role with PostCom and the two organizations will operate separately.
During his tenure, PostCom has continued to lead the mailing and shipping industry on policy and regulatory matters and to work with Government agency partners to advance issues of importance to members. Mr. Plunkett is also President of the Delivery Technology Advocacy Council, a nonprofit launched in 2020 to concentrate on delivery and logistics technologies.
Prior to PostCom, Mr. Plunkett accumulated more than 25 years Postal experience with the United States Postal Service in numerous executive roles in operations, marketing, product development and pricing. As a leader within the Postal Service’s management team, Mr. Plunkett developed a well-earned reputation for innovation by leading efforts to develop pricing agreements for domestic services and in the development of the forever stamp and the priority mail flat rate box.
Mr. Plunkett has testified on pricing and policy issues before the Postal Regulatory Commission and Congressional subcommittees. He has authored and presented papers on postal policies, economics, and operations for National and International conferences.
Mr. Plunkett holds Masters Degrees in Business from the Wharton School at the University of Pennsylvania and the Massachusetts Institute of Technology, where he was a Sloan Fellow. He earned a Bachelor Degrees in Economics and Finance from the Pennsylvania State University.
