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  1. #1
    http and a telephoto
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    Overstock Sues NYS Also
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  2. #2
    Online Marketing Consultant
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    Overstock is taking action
    http://investors.overstock.com/phoen...cle&ID=1152267


    Quick FYI. Looks like Overstock is joining the fight and taking action.
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  3. #3
    Affiliate Manager PetsWarehouse.com's Avatar
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    That's great I assume having read Amazons basis they are amplifying their point or raising new new points.

    need a link to the complaint?
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  4. #4
    http and a telephoto
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    Adam, merged your thread with the one already started
    Deborah Carney
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  5. #5
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    Didn't see that one, sorry bout that. =0)
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  6. #6
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    Interesting that Amazon filed their complaint weeks ago but apparently never petitioned for a Temporaty Restraining Order to stop imposition of the tax. Overstock waited to the last minute to file, but the article says they are asking for an injunction, but it may be too late for a TRO as the tax legislation goes into effect tomorrow. For a TRO, the petitioner must demonstrate irreparable harm if the act is allowed to begin. Their waiting so long and letting the law go into effect is detrimental to that showing - if they were going to act, they should have acted sooner.
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  7. #7
    Life is Supposed to be Fun! Rexanne's Avatar
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    About time

    Bravo!
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  8. #8
    Affiliate Manager PetsWarehouse.com's Avatar
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    Quote Originally Posted by AffiliateHound
    Interesting that Amazon filed their complaint weeks ago but apparently never petitioned for a Temporaty Restraining Order to stop imposition of the tax. Overstock waited to the last minute to file, but the article says they are asking for an injunction, but it may be too late for a TRO as the tax legislation goes into effect tomorrow. For a TRO, the petitioner must demonstrate irreparable harm if the act is allowed to begin. Their waiting so long and letting the law go into effect is detrimental to that showing - if they were going to act, they should have acted sooner.
    I disagree a TRO can be requested, it's done all the time in in Trademark cases after the infringement.
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  9. #9
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    Quote Originally Posted by PetsWarehouse.com
    I disagree a TRO can be requested, it's done all the time in in Trademark cases after the infringement.
    There is a big difference here. In a tradmark case, or other instance where an aggrieved party finds out about ongoing behavior that is causing them harm, they can, and do, petition for a TRO, and on the proper showing of irreparable harm, can previal. Here, there was ample notice of what was to occur several weeks later, and no applicaition for a TRO was made. A court can deny such an application based on the aggrieved party sitting on its rights, saying that the harm cannot be so detrimental because they did nothing for so long. Analogizing that to a trademark case, its as if the infringed company waited weeks after learning of the infrigement before taking action.

    This is not to reflect on the merits of the case itself and whether or not a Temporary Injunction or Permanent Injunction may lie, but only on the substantial showing needed for a TRO.
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  10. #10
    MasterMike HardwareGeek's Avatar
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    Since they fired NY affiliates, this law doesn't apply to them so since it doesn't apply to them how can they sue?

    They got bad press for firing NY affiliates IMO and are now trying to make up for it. A little too late.

    They are just doing this for the PR brownie points which they won't get from me as I consider them a Shady company since they fired NY affiliates..

  11. #11
    Analytics Dude Kevin's Avatar
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    Having Overstock pick up our torch can never be a bad thing, regardless of any of our personal feelings on them.

    I never promoted them before, and didn't have any intentions to in the future, but the more pressure that can be put on this legislation from sources with deep pockets, the better.

    Overstock's intention, being self serving or not, matters very little to me personally.

    What would really help is a consumer group suing, rather than just asking for merchants to dump NY affiliates. As per usual, the consumer groups take the easy way out. It's always been that way.
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  12. #12
    MasterMike HardwareGeek's Avatar
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    how can a consumer group sue though? Consumer groups do not have clean hands, NY consumers do not have clean hands to go into court and tell the court to stop this since the Majority of us do not pay Use Tax even though we are supposed too.

    Personally I never paid used tax either but being tax exempt and the majority of my purchases have been business related for items i have sold to other people etc. I probably wouldn't have to worry too much if the state came after me.

  13. #13
    Analytics Dude Kevin's Avatar
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    I'm not sure. I haven't spent a lot of time thinking down that angle.

    Which is curious, since I am a NY consumer that buys online.
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  14. #14
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    I figure consumers wouldn't exactly be on our side. They would rather pay no tax.

  15. #15
    Analytics Dude Kevin's Avatar
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    That's where it gets sticky, Trust. By law, they already owe it. It's just not enforced.
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  16. #16
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    This is very encouraging, I'm glad to hear it.

  17. #17
    Newbie BigOne's Avatar
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    Many jurisdicitons have a Anti-Injunction act that limits the ability of suits against taxation. You have to pay the tax and then challenge it. Doesn't sound liek NY has it, but CAlif does and the Calif based dotcoms may have delayed because it can't be doen out here.

  18. #18
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    Quote Originally Posted by BigOne
    Many jurisdicitons have a Anti-Injunction act that limits the ability of suits against taxation. You have to pay the tax and then challenge it. Doesn't sound liek NY has it, but CAlif does and the Calif based dotcoms may have delayed because it can't be doen out here.
    California laws regarding taxation have no bearing on California companies suing in NY over NY state laws. California companies have to deal with no similar law in California as NY's new sales tax requirement, so, at least for now, the proscription against injunctive relief is inapplicable. Two major lawsuits - the Amazon and Overstock suits - can and will decide the major issues, and additional lawsuits would likely be consolidated with the pending cases.
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
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  19. #19
    Affiliate Manager Alan Hamilton's Avatar
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    IMO, it all comes down to constitutional questions. Does the commerce clause apply in this case? Does the NY law constitute an undue burden on commerce? Will the NY law pose an undue restraint of trade?

    These issues will be a major focal point and if it reaches the present day supreme court, I doubt seriously that the NY law will stand. NY can eventually opt for an imitation of the MA tax law that requires consumers who reside in the state and make purchases out of state, to fill out the state form and submit the applicable tax to the MA DOR. Lacking that, I find it difficult to believe that any state will ultimately be allowed to require tax payment by businesses that are not located within that state.

    I'm confident that we will see other merchants join this battle. That in mind, some affiliates may feel that "they" are the ones who are affected here, and that merchants having to drop affiliates while they sort this out is unfair to the affiliate. But in reality, it is the merchants who take the biggest hit here, and the merchants who dig deep into their pockets to fund these challenges. Their actions subsequently open doors for affiliates for a better long term opportunity without undue interference. We should applaud them and learn from their leadership rather than pointing the finger of unfairness at them for suspending affiliate programs while they resolve the issue.

    While they are challenging the constitutionality of the NY law, it might be worthwhile to challenge the sanity of the NY legislature too. No judge in his / her right mind could deny the obvious
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