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`Appellate Case: 20-1454 Document: 010110458826 Date Filed: 12/31/2020 Page: 1
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`OFFICE OF THE CLERK
`
`Jeffrey P. Colwell
`Clerk
`
`Date: 12/31/2020
`
`Pro Se
`
`Retained
`
`CJA
`
`FPD
`
`Alfred A. Arraj
`United States Courthouse
`901 19th Street
`Denver, Colorado 80294
`www.cod.uscourts.gov
`
`Phone: (303) 844-3433
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` USA or other
`Federal Agency
`(Appeal Fee Exempt)
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`Case No: 20-cv-03107-RM-KLM
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`Date Filed: 12/31/2020
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`Appellant: Jennifer Ann Smith et al
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`Pro Se Appellant:
`IFP forms mailed/given
`
`Amended Notice of Appeal
`Other pending appeals
`Transferred Successive
`§2254 or §2255
`Supplemental Record
`
`Motion IFP pending
`IFP denied
`
`Appeal fee paid
`Appeal fee not paid
`
`Retained Counsel:
`Appeal fee paid
`
`Appeal fee not paid
`
`Motion IFP filed
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`The Preliminary Record on Appeal is hereby transmitted to the Tenth Circuit Court of
`Appeals. Please refer to the forms, procedures, and requirements for ordering
`transcripts, preparing docketing statements and briefs, and designations of the record
`that are found on the Tenth Circuit’s website, www.ca10.uscourts.gov.
`
`If not already completed, either an appeal fee payment for filing this case or filing of a
`motion to proceed in forma pauperis will be made to this District Court.
`
`The transcript order form must be filed in the District Court as well as the Court of Appeals
`within 14 days after the notice of appeal was filed with the District Court.
`
`If you have questions, please contact this office.
`
`Sincerely,
`
`JEFFREY P. COLWELL, CLERK
`
`by: s/Román Villa
`Deputy Clerk
`cc: Clerk of the Court, Tenth Circuit Court of Appeals
`Rev. 8/17/2017
`
`

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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge Raymond P. Moore
`
`
`Civil Action No. 20-cv-03107-RM-KLM
`
`JENNIFER ANN SMITH, a citizen and taxpayer of
`the State of Colorado,
`LIGGETT GROUP LLC,
`VECTOR TOBACCO INC., and
`XCALIBER INTERNATIONAL LTD., LLC,
`
`
`Plaintiffs,
`
`
`v.
`
`STATE OF COLORADO, by and through JARED S.
`POLIS, in his official capacity as Governor of
`Colorado,
`PHILIP J. WEISER, in his official capacity
`as Attorney General of Colorado, and
`HEIDI HUMPHREYS, in her official capacity as Interim
`Executive Director of the Colorado Department of
`Revenue,
`
`
`Defendants.
`______________________________________________________________________________
`
`
`ORDER DENYING
`PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
`______________________________________________________________________________
`
`
`On November 3, 2020, a majority of voters in Colorado approved “Proposition EE,” also
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`known as House Bill 20-1427 (“HB 1427”). Section 10 of HB 1427 requires a minimum retail
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`sales price of $7.00 per pack of 20 cigarettes. Defendants contend Section 10 is intended to
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`reduce overall cigarette usage, especially among youth and young adults, and provide revenue
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`mainly for Colorado’s preschool program. Plaintiffs, however, challenge the constitutionality of
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`Section 10 under the United States Constitution. At issue before the Court is Plaintiffs’ Motion
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`for Preliminary Injunction (the “Motion”) seeking to enjoin Defendants from enforcing Section
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`

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`10 which goes into effect on January 1, 2021. Due to the exigency of the matter, the Court
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`ordered expedited briefing on the Motion and allowed the parties to conduct limited expedited
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`discovery. In addition, on December 21, 2020, the Court held a hearing where the parties
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`presented evidence and oral argument. The parties also provided supplemental briefing on the
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`standard of review. After considering the Motion, the court record, the matters presented at the
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`hearing, and the applicable law, and being otherwise fully advised, the Court finds and orders as
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`follows.
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`I.
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`BACKGROUND
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`Plaintiffs are Liggett Group LLC, Vector Tobacco Inc., and Xcaliber International LTD.,
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`LLC, three out-of-state discount cigarette manufacturers (collectively, the “Discount
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`Manufacturers”), and Jennifer Ann Smith (“Ms. Smith”), a Colorado citizen who states she voted
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`for Proposition EE. They have sued Defendants alleging Section 10 violates the dormant
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`Commerce Clause.1 The background which gives rise to this action and the Motion is as follows.
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`The cigarette supply chain generally consists of manufacturers, intermediaries (e.g.,
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`distributors), and retailers. This is true for discount and premium brand cigarette manufacturers,
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`including Discount Manufacturers.
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`Discount Manufacturers – and all other cigarette manufacturers – are located out-of-state.
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`Discount Manufacturers sell discount brand cigarettes primarily to distributors,2 who then sell
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`them to retailers. The retailers sell to consumers; the Discount Manufacturers operate no retail
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`
`1 Plaintiffs’ other claim based on alleged violations of the Colorado Constitution was dismissed voluntarily without
`prejudice.
`2 The parties sometimes referred to the intermediary as “wholesalers”; the terms are used interchangeably. (Ex. A-
`12, Shipe 30(b)(6) Depo., 16:21-17-1.) Manufacturers may also sell to a handful of large retailers, such as Kroger or
`Wawa. (Shipe 30(b)(6) Depo., 15:19-16:20.)
` Except for hearing exhibits, the page references are to the page number assigned to the document by the court’s
`CM/ECF system, found in the upper right hand corner of the document.
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`
`
`2
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`

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`stores and they do not sell directly to consumers. The cigarette manufacturers and distributors set
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`their own prices and the retailer sets the final price to be sold to the consumer.
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`Discount Manufacturers compete with other cigarette manufacturers – discount and
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`premium – mainly by pricing their products lower than other domestically sold brands of
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`cigarettes.3 And, no one disputes that if prices increase, the sales of cigarettes would decrease.
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`Effective January 1, 2021, with the passage of HB 1427 and Section 10, all other things being
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`unchanged, the price differential between discount brand and premium brand cigarettes would
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`decrease while the retailers’ profit margins would increase.4
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`Specifically, HB 1427 increases the excise tax for cigarettes to $1.10 per pack and, under
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`Section 10, sets a minimum retail sales price of $7.00 per pack. The price differentials and
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`margin increases are demonstrated by Figure 2 in Discount Manufacturers’ expert’s report,
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`which figures the Court assumes are true for the purposes of the Motion. Thus, using Pyramid
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`cigarettes as an example, assuming a current retail price of $5.28 per pack, the $1.10 excise tax
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`would increase the price to $6.38 per pack. However, in order to comply with the $7.00
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`minimum price, the retailer would sell the Pyramid cigarettes for at least $7.00. The increase in
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`profit margin of $0.62 would be retained by the retailers.5 And, the price differential between
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`Camel, a premium brand, and Pyramid would decrease from $1.10 ($6.38 - $5.28) to $0.48
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`($7.48 - $7.00).
`
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`3 Their goal is to get the retail store customer to purchase their brands based on price, distribution, and visibility.
`(Shipe 30(b)(6) Depo., 27:5-14.)
`4 For example, the discount manufacturers may not all change their prices in response to HB 1427. Section 10 places
`no restrictions on the price at which a manufacturer must sell its cigarettes to distributors or to retailers. Plaintiffs’
`expert, Robert S. Maness, Ph.D., presented some testimony that, as he understood it, prices charged to wholesalers
`are set nationally and fairly uniform across states; that wholesale prices are not altered on a state-by-state basis. That
`the manufacturers may not do so, however, does not mean they cannot do so.
`5 Presumably this would be in addition to whatever profits the retailer would have received at the $5.28 per pack
`sales price.
`
`
`
`3
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`

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`(ECF No. 48-2, p. 15; Ex. 35, p. 15.)
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`According to Discount Manufacturers’ theory, because they compete by having lower
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`prices, the $7.00 price floor would result in (1) smaller price differences between discount and
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`premium brands of cigarettes, which will cause a significant decrease in sales of Discount
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`Manufacturers’ discount brands of cigarettes as consumers would shift to buying premium
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`brands from other interstate cigarette manufacturers and (2) an increase in profits to in-state
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`retailers at Discount Manufacturers’ expense, with whom Discount Manufacturers allegedly
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`compete. Thus, Discount Manufacturers assert, Section 10 discriminates between competitors –
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`in-state retailers and out-of-state discount cigarette manufacturers – in the cigarette market and
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`unduly burdens interstate commerce. Hence, Plaintiffs’ Motion seeking to enjoin Section 10
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`from going into effect on January 1, 2021 followed.
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`
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`4
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`

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`II.
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`LEGAL STANDARD
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`“A preliminary injunction is an extraordinary remedy, the exception rather than the rule.”
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`Free the Nipple-Fort Collins v. City of Fort Collins, Colo., 916 F.3d 792, 797 (10th Cir. 2019)
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`(quotation marks and citation omitted). Before this remedy may be granted, the moving parties
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`must establish: “‘(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm
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`unless the injunction is issued; (3) that the threatened injury outweighs the harm that the
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`preliminary injunction may cause the opposing party; and (4) that the injunction, if issued, will
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`not adversely affect the public interest.’” Diné Citizens Against Ruining our Environment v.
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`Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (quoting Davis v. Mineta, 302 F.3d 1104, 1111
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`(10th Cir. 2002)). The last two factors merge when the government is the opposing party. Nken v.
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`Holder, 556 U.S. 418, 435 (2009). And, because it is an extraordinary remedy, the party’s right
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`to relief must be clear and unequivocal. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir.
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`2005).6
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`III. DISCUSSION
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`A. PRELIMINARY INJUNCTIVE RELIEF
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`1. IRREPARABLE HARM
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`Defendants do not challenge, for the purposes of the Motion, whether Discount
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`Manufacturers will suffer irreparable harm should an injunction not enter. Accordingly, the
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`Court will not address this requirement but will assume this factor is met.
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`2. LIKELIHOOD OF SUCCESS ON THE MERITS
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`Under the Constitution’s Commerce Clause, Congress has the power “[t]o regulate
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`commerce ... among the several States.” U.S. Const. art. I, § 8, cl. 3. “‘[T]he Clause has [also]
`
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`6 The parties agree this traditional standard applies, rather than the standard applicable to disfavored injunctions. On
`this record, the Court assumes it is so.
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`
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`5
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`

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`long been recognized as a self-executing limitation on the power of the States to enact laws
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`imposing substantial burdens on such commerce.’” Kleinsmith v. Shurtleff, 571 F.3d 1033, 1039
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`(10th Cir. 2009) (quoting S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 (1984)). This
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`limitation is commonly called the “dormant” Commerce Clause. Id. It is “driven by concern
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`about economic protectionism – that is, regulatory measures designed to benefit in-state
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`economic interests by burdening out-of-state competitors.” Id.
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`The Tenth Circuit has stated a state statute may violate the dormant Commerce Clause in
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`the following three ways:
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`• “First, a statute that clearly discriminates against interstate commerce in favor of
`intrastate commerce is virtually invalid per se and can survive only if the
`discrimination is demonstrably justified by a valid factor unrelated to economic
`protectionism.”
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`• “Second, if the statute does not discriminate against interstate commerce, it will
`nevertheless be invalidated under the Pike v. Bruce Church Inc., 397 U.S. 137, 142,
`90 S. Ct. 844, 25 L.Ed.2d 174 ... (1970) balancing test if it imposes a burden on
`interstate commerce incommensurate with the local benefits secured.”
`
` •
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` “Third, a statute will be invalid per se if it has the practical effect of extraterritorial
`control of commerce occurring entirely outside the boundaries of the state in
`question.”
`
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`KT & G Corp. v. Attorney Gen. of State of Okla., 535 F.3d 1114, 1143 (10th Cir. 2008)
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`(quotation and citation omitted). See also Energy & Env’t Legal Inst. v. Epel, 793 F.3d 1169,
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`1171-1172 (10th Cir. 2015) (discussing the “three varieties” of dormant Commerce Clause cases,
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`i.e., cases applying the Pike balancing test, the “clearly discriminates” Philadelphia7 test, and the
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`laws-that-control-extraterritorial-conduct Baldwin 8test). Plaintiffs contend Defendants violate
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`7 City of Philadelphia v. New Jersey, 437 U.S. 617 (1978).
`8 Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935).
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`
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`6
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`

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`the dormant Commerce Clause under the first two ways.9 The Court examines the record to
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`determine if Plaintiffs have shown they are likely to prevail under either of these two theories.
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`a) “Clearly Discriminates” Facially or in Effect
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`Discount Manufacturers contend Section 10 clearly discriminates against out-of-state
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`manufacturers by benefiting in-state retailers; that retailers and manufacturers compete with each
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`other. Defendants counter that the in-state retailers and out-of-state cigarette manufacturers are
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`not “similarly situated” – i.e., they are not competitors. In other words, there must be actual or
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`prospective competition between the favored and disfavored entities in a single market and, here,
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`there is not. See General Motors v. Tracy, 59 U.S. 278, 300 (1997) (there can be no local
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`preference “in the absence of actual or prospective competition between the supposedly favored
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`and disfavored entities in a single market”).
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`“A statute may discriminate against interstate commerce on its face or in practical effect.”
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`Direct Mktg. Ass’n v. Brohl, 814 F.3d 1129, 1140 (10th Cir. 2016). The burden to show
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`discrimination is on the party challenging the statute’s validity. Kleinsmith, 571 F.3d at 1040.
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`Section 10, on its face, does not discriminate. It requires a minimum retail price for all
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`cigarettes sold in Colorado. Thus, Discount Manufacturers can only prevail under this theory if
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`they can show that the law discriminates in practical effect. That requires the challenger to show
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`“how local economic actors are favored by the legislation, and how out-of-state-actors are
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`burdened.” Kleinsmith, 571 F.3d at 1041 (quotation marks and citation omitted). “Not every
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`benefit or burden will suffice-only one that alters the competitive balance between in-state and
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`out-of-state firms.” Id. (emphasis added); see also Brohl, 814 F.3d at 1142 (same). “The fact that
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`the burden of a state regulation falls on some interstate companies does not, by itself, establish a
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`9 Plaintiffs’ Motion argues Section 10 violates the dormant Commerce Clause under all three theories, but
`acknowledged during the hearing that they were only proceeding only under the first two theories.
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`7
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`

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`claim of discrimination against interstate commerce.” Exxon Corp., 437 U.S. at 127. Nor does
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`differential treatment between in-state and out-of-state entities establish a violation of the
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`dormant Commerce Clause. “Conceptually, of course, any notion of discrimination assumes a
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`comparison of substantially similar entities.” Tracy, 519 U.S. at 298; see also Brohl, 814 F.3d at
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`1143 (“equal treatment requires that those similarly situated be treated alike”).
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`Discount Manufacturers argue they are not merely competitors with other cigarette
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`manufacturers – that Section 10 does more than shift business from one interstate supplier to
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`another. Instead, Discount Manufacturers contend, they compete with Colorado retailers in the
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`following three-ways: vertical competition; horizontal competition; and competition for
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`consumer awareness.10 Thus, Discount Manufacturers argue, the law clearly discriminates
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`against them – who are out-of-state – in favor of in-state (Colorado) retailers. The Court
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`examines these arguments below.
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`The Court starts with “consumer awareness.” According to Discount Manufacturers’
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`expert, Robert S. Maness, Ph.D., retailers have various ways to increase consumer awareness
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`through placement of products on the shelf and point-of-sale type advertisements. And the
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`retailers of cigarettes compete with Discount Manufacturers to draw the attention of customers.
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`This proposition is not a model of clarity and wholly unconvincing as establishing competition
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`between manufacturers and retailers in any way relevant to the dormant Commerce Clause
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`analysis. Regardless, from the Court’s perspective, any placement of products (or advertisement)
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`by the retailer in its store results in a competition for consumer awareness between the products
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`at issue, not between the seller of the product (the retailer) and the manufacturer of the product
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`10 These three theories of competition are also set forth in Plaintiffs’ Reply brief (ECF No. 48), but it appears they
`varied or overlapped in many respects during the hearing. Regardless, the Court will address the three theories
`espoused, whether they may be referred to, for example, as “horizontal” competition or as consumer awareness or
`attention.
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`
`
`8
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`

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`(Discount Manufacturers). That is to say, the retail shelf positioning of a product affects the
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`target consumer’s awareness among similar products – here, cigarettes. And, such competition
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`here is undeniably between out-of-state manufacturers. Accordingly, the Court finds no
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`competition for consumer awareness between Discount Manufacturers and Colorado retailers.
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`Similarly, Discount Manufacturers fail to show any vertical competition between them
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`and Colorado retailers. Manufacturers, distributors, and retailers are part of the vertical supply
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`chain of cigarettes. Discount Manufacturers contend that there is competition between the
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`upstream manufacturers and downstream retailers over the “pie of profits” to be divided among
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`them. According to Dr. Maness, the more that pie of profits goes to retailers, the less of that pie
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`is going to Discount Manufacturers. Defendants’ expert, Svetla K. Tzenova, Ph.D., however,
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`disagrees. She counters that this relationship is more of a division of profits rather than a
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`competition for profits in this supply link. Elementally, as Dr. Tzenova aptly describes and
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`opines, the retailer is the customer of the distributor (and sometimes manufacturer) and the
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`distributor is the customer of the manufacturer. The customer (retailer) does not compete with
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`the person or entity from whom they are buying the products (manufacturer seller), when the
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`manufacturer does not also sell to the end user, here the consumer. The Court agrees.
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`Accordingly, the Court also finds no vertical competition as Discount Manufacturers theorize
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`between them and the in-state retailers.
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`Finally, Discount Manufacturers also fail to establish horizontal competition between
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`them – the manufacturer of cigarettes – and Colorado retailers who sell them. Discount
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`Manufacturers, at least implicitly, acknowledge they are not in “classic horizontal competition,”
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`e.g., Burger King versus McDonald’s, with the in-state retailers. They contend, however, that the
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`cigarette industry is a “very unique industry” and, here, discount manufacturers are competitors
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`
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`9
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`

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`with retailers because, with the passage of Section 10, Discount Manufacturers cannot offer
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`incentives to retailers because they are unable to cut prices due to the $7.00 price floor. But,
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`Discount Manufacturers argue, the premium brand manufacturers can still offer incentives to
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`retailers, which will lead to a closer alignment between retailers and premium brand
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`manufacturers, to the detriment of discount brand manufacturers. In fact, Dr. Maness opines that
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`the retailers are, in effect, the premium brand manufacturers’ “agents.”
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`The Court is not persuaded by what amounts to nothing more than Dr. Maness’s say so.
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`Even if there was any alleged alignment of interests with premium brand manufacturers,
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`Discount Manufacturers fail to show how that renders the retailers the agents of premium brand
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`manufacturers or how that makes retailers competitors with Discount Manufacturers. The
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`competition remains between cigarette manufacturers who seek to persuade the retailers as to
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`whose goods they should display on premium shelf space.
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`At bottom, the Court agrees that Discount Manufacturers compete with other cigarette
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`manufacturers such as Philip Morris or R.J. Reynolds. The Court does not agree, or find, on this
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`record, that Discount Manufacturers compete with Colorado retailers in the cigarette market.11, 12
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`In other words, that Discount Manufacturers and retailers are “similarly situated for
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`constitutional purposes.” Tracy, 519 U.S. at 199. Accordingly, Discount Manufacturers fail to
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`show Section 10 clearly discriminates in violation of the dormant Commerce Clause.
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`b) Burden on Interstate Commerce and Pike Balancing
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`Discount Manufacturers assert that even if Section 10 does not discriminate against
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`interstate commerce, it is nonetheless invalid under Pike because there are less burdensome
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`11 The Court renders no opinion as to whether, under other factual scenarios or theories, cigarette manufacturers and
`retailers can or do compete.
`12 The Court also notes that the assumption that all retailers in Colorado are intrastate Colorado entities is
`unsupported. Some retailers obviously are, but others – such as 7-Eleven – appear to be out-of-state corporations.
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`
`
`10
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`

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`alternatives, i.e., that Section 10 imposes a burden on interstate commerce which is not
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`commensurate with the local benefits. Defendants respond that, even under Pike, the Court must
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`first find Section 10 unduly burdens interstate commerce and, if so, the Court then conducts a
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`balancing test. Here, Defendants contend, there are no in-state competitors and Discount
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`Manufacturers’ potential loss of business is to other out-of-state manufacturers; therefore, there
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`can be no undue burden that violates the dormant Commerce Clause. The Court starts – and
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`ends – with the undue burden inquiry.
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`“Whether a state law unduly burdens interstate commerce is a separate inquiry from
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`whether a state law discriminates against interstate commerce.” Brohl, 814 F.3d at 1145. Even if
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`the challenged law does not discriminate, the law violates the dormant Commerce Clause if “the
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`burden imposed on [interstate] commerce is clearly excessive in relation to the putative local
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`benefits.” Pike, 397 U.S. at 142. The Pike balancing test involves the consideration of four
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`factors: “(1) the nature of the putative local benefits advanced by the [law]; (2) the burden the
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`[law] imposes on interstate commerce; (3) whether the burden is ‘clearly excessive in relation to’
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`the local benefits; and (4) whether the local interests can be promoted as well with a lesser
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`impact on interstate commerce.” Blue Circle Cement, Inc. v. Bd. of Cty. Comm’rs of Cty. of
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`Rogers, 27 F.3d 1499, 1512 (10th Cir. 1994) (citing Pike, 397 U.S. at 142); see also Johnson &
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`Johnson Vision Care, Inc. v. Reyes, 665 F. App’x 736, 744 (10th Cir. 2016) (same).
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`“Although evidence regarding a particular company may be suggestive, the benefit-to-
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`burden calculation is based on the overall benefits and burdens that the statutory provision may
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`create, not on the benefits and burdens with respect to a particular company or transaction.” Quik
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`Payday, Inc. v. Stork, 549 F.3d 1302, 1309 (10th Cir. 2008). The law does not impermissibly
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`burden interstate commerce “simply because an otherwise valid regulation causes some business
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`
`
`11
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`

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`to shift from one interstate supplier to another.” Exxon Corp., 437 U.S. at 127 (emphasis added).
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`This is because the Commerce Clause protects “the interstate market, not particular interstate
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`firms.” Id. at 127-128.
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`Section 10 does not unduly burden interstate commerce for the same reasons why the
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`Court finds it does not discriminate: while, under Discount Manufacturers’ theory, Section 10
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`burdens competition between interstate competitors, it does not burden interstate commerce.
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`Under Discount Manufacturers’ theory, all cigarette manufacturers lose presence in Colorado
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`due to the minimum price floor because of the decrease in sales overall.13 And, as shown by the
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`repeated references to the loss of discount brand cigarette sales to premium cigarette brands due
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`to the price floor, any claimed “prohibition” from competition in Colorado is between Discount
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`Manufacturers and premium brand cigarette manufacturers. Accordingly, the Court finds Section
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`10 creates no constitutional burden on interstate commerce.
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`3. BALANCE OF INTERESTS AND PUBLIC INTERESTS
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`In light of the Court’s finding that the Discount Manufacturers fail to establish a
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`likelihood of success on the merits, it need not decide this remaining factor. See First W. Capital
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`Mgmt. Co. v. Malamed, 874 F.3d at 1136, 1141 (10th Cir. 2017) (recognizing that all four
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`elements must be met with limited exception inapplicable here).
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`B. STANDING – PLAINTIFF SMITH
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`Defendants contend that Plaintiff Smith is not a proper party because she lacks standing
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`to sue for alleged violations of the dormant Commerce Clause under Count 1.14 Plaintiffs counter
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`13 The reduction of cigarette usage is, after all, a goal of Section 10.
`14 ECF No. 40, p. 2 & n.1.
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`12
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`Plaintiff Smith has standing and that the Court need not reach this issue because Defendants do
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`not contest that the Discount Manufacturers have standing.15
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`The doctrine of standing insists “that a litigant prove that [she] has suffered a concrete
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`and particularized injury that is fairly traceable to the challenged conduct, and is likely to be
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`redressed by a favorable judicial decision.” Carney v. Adams, No. 19-309, 2020 WL 7250101, at
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`*3 (U.S. Dec. 10, 2020) (quotation marks and citations omitted); see also Kansas Nat. Res. Coal.
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`v. United States Dep’t of Interior, 971 F.3d 1222, 1231 (10th Cir. 2020). Standing requires an
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`“injury in fact that must be concrete and particularized, as well as actual or imminent.…It cannot
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`be conjectural or hypothetical….[A] grievance that amounts to nothing more than an abstract and
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`generalized harm to a citizen’s interest in the proper application of the law does not count as an
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`injury in fact.” Carney, 2020 WL 7250101, at *3 (quotation marks and citations omitted).
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`Standing cannot be established “by asserting an abstract general interest common to all members
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`of the public.” Id., at *4 (quotation marks and citation omitted). A plaintiff bears the burden of
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`establishing standing at the time she brought this lawsuit and of maintaining it thereafter. Id.
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`Ordinarily, the Court “must resolve jurisdictional questions before addressing the merits
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`of a claim.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1168–69 (10th Cir. 2012).
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`However, the Court “‘may rule that a party loses on the merits without first establishing
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`jurisdiction when the merits have already been decided in the court’s resolution of a claim over
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`which it did have jurisdiction.’” Id. (brackets omitted) (quoting Starkey ex rel. A.B. v. Boulder
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`Cnty. Soc. Servs., 569 F.3d 1244, 1259-60 (10th Cir. 2009)). Under these circumstances, the
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`“resolution of the merits is foreordained, and resolution of the jurisdictional question can have no
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`effect on the outcome.” Id. (quotation marks and brackets omitted) (quoting Starkey et rel. A.B.,
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`569 F.3d at 1260).
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`15 ECF No. 48, p. 1 n.1
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`13
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`

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`Appellate Case: 20-1454 Document: 010110458826 Date Filed: 12/31/2020 Page: 15
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`In this case, Plaintiffs argue repeatedly about alleged competition between Discount
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`Manufacturers, who have standing, and Colorado retailers, and how the dormant Commerce
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`Clause is violated based on the alleged protectionism of in-state retailers at the expense of out-
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`of-state Discount Manufacturers. The Court has rejected Count 1 on the merits as to the Discount
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`Manufacturers, and its findings and conclusions apply equally to Plaintiff Smith; therefore, the
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`Court need not decide whether she has standing.
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`IV. CONCLUSION
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`Based on the foregoing, it is ORDERED that Plaintiffs’ Motion for Preliminary
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`Injunction (ECF No. 13) is DENIED.
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`DATED this 28th day of December, 2020.
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`BY THE COURT:
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`____________________________________
`RAYMOND P. MOORE
`United States District Judge
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`14
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`Case 1:20-cv-03107-RM-KLM Document 76-1 Filed 12/31/20 USDC Colorado Page 15 of 21
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`Appellate Case: 20-1454 Document: 010110458826 Date Filed: 12/31/2020 Page: 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge Raymond P. Moore
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`Civil Action No. 20-cv-03107-RM-KLM
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`JENNIFER ANN SMITH, a citizen and taxpayer of
`the State of Colorado, LIGGETT GROUP LLC,
`VECTOR TOBACCO INC., and XCALIBER
`INTERNATIONAL LTD., LLC,
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`Plaintiffs,
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`v.
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`STATE OF COLORADO, by and through JARED S.
`POLIS, in his official capacity as Governor of
`Colorado, PHILIP J. WEISER, in his official capacity
`as Attorney General of Colorado, and HEIDI
`HUMPHREYS, in her official capacity as Interim
`Executive Director of the Colorado Department of
`Revenue,
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`Defendants.
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`NOTICE OF APPEAL
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`Notice is hereby given that Jennifer Ann Smith, Liggett Group LLC, Vector Tobacco Inc.,
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`and Xcaliber International Ltd., LLC, plaintiffs in the above-named case, hereby appeal to the
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`United States Court of Appeals for the Tenth Circuit from an order denying Plaintiffs’ motion for
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`a preliminary injunction, entered in this action on the 28th day of December, 2020.
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`Dated: December 31, 2020
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`

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`KASOWITZ BENSON TORRES LLP
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`By:
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`s/ Marc E. Kasowitz
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`Marc E. Kasowitz
`Daniel R. Benson
`Leonard A. Feiwus
`Deva Roberts