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Mark J. Fitzgibbons American Target Advertising, Inc. 9625 Surveyor Court, Suite 400 Manassas, Virginia 20110 Telephone: (703) 392-7676

Gifford W. Price Mackey Price & Williams 170 South Main Street Salt Lake City, Utah 84101-1655 Telephone: (801) 575-5000

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

AMERICAN TARGET ADVERTISING, INC., a Virginia Corporation, Appellant,	MOTION TO STRIKE BRIEF OF AMICUS CURIAE OR FOR LEAVE TO RESPOND
vs.	Case No. 98-4158
FRANCINE A. GIANI in her official capacity as Division Director of the Utah Division of Consumer Protection, Department of Commerce for the State of Utah, Appellee.

The Appellant, American Target Advertising, Inc. ("American Target), by and through its attorneys, moves to strike the Brief of Amici Curiae, Mike Hatch, Minnesota Attorney General, et al. in Support of Appellee (the "Minnesota Brief") pursuant to 10th Cir. Rule 25.4. In the alternative, American Target moves for leave to file its Brief in Response to the Minnesota Brief pursuant to F.R.A.P. 29.

On or about November 24, 1998, the Appellee (hereinafter, the "Director") moved to extend the time for filing her Response Brief. The Director's Response Brief was initially due on December 9, 1998. Her motion did not include a request to extend the due date of any amicus curiae brief in support of the Director. On November 30, 1998, the Court granted the Motion for Extension of Time to File Response Brief. The Court extended the due date for the Director to file her Response Brief to January 8, 1999.

On or about January 14, 1999, the Minnesota Attorney General et al. filed the Minnesota Brief, which was filed in support of the Director's position. The Minnesota Attorney General did not seek an extension to file the Minnesota Brief. F.R.A.P. 29 requires all amicus curiae to file their brief

within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer.

F.R.C.P. 29. Because the Minnesota Brief was not timely filed, even under the extended date granted to the Director, the Minnesota Brief should be stricken.

Additionally, the Minnesota Brief does not contain a certificate of service as required by F.R.A.P. 25(d). The Minnesota Brief was not properly served on counsel for American Target. One copy of the Minnesota Brief was mailed to American Target's former Utah counsel, but not its current Utah counsel. Another copy was mailed to American Target's former address, but not its current address. American Target's Utah counsel did not receive a copy of the Minnesota Brief until January 20, 1998. American Target's Virginia counsel did not receive a copy of the Minnesota Brief until January 25, 1999. American Target's Reply Brief was due, and was filed on, January 25, 1999. Thus, American Target is prejudiced by not having the full time and opportunity to adequately respond to the Minnesota Brief in American Target's Reply Brief.

In the alternative, American Target requests that the Court grant American Target leave to file its Brief in Response to the Minnesota Brief, which is submitted herewith. In the District Court case below, the Minnesota Attorney General and other amici submitted a similar, but not identical brief. American Target filed a Memorandum in Response, claiming that the Minnesota Brief filed in the District Court contained misleading information. Neither Minnesota's Brief below nor American Target's Response are included in the Index for the present appeal.

As more fully explained in the Brief in Response to Minnesota Brief, the Minnesota Brief presents additional facts not contained in the record. "[I]n the absence of exceptional circumstances, amicus curiae is not entitled to introduce additional evidence..." Wiggins Brothers, Inc. v. Department of Energy, 667 F.2d 77, 83 (1981). The Minnesota Attorney General failed to show any exceptional circumstances for attempting to inject any such information.

Additionally, some of the facts and/or statistics cited in the Minnesota Brief are misleading or false, as more fully explained in the Brief in Response to Minnesota Brief. Those misleading facts would prejudice American Target unless American Target may respond to them. Thus, if the Court were to accept the Minnesota Brief, it would be appropriate for the Court, pursuant to F.R.A.P. 29, to allow American Target to respond to the Minnesota Brief.

For the reasons stated herein, American Target respectfully moves the Court to strike the Minnesota Brief. In the alternative, American Target respectfully moves the Court to accept as filed the Appellant's Brief in Response to the Minnesota Brief which accompanies this Motion.

Dated this 2nd day of February, 1999.

Respectfully submitted,

Mark J. Fitzgibbons American Target Advertising, Inc. 9625 Surveyor Court Suite 400 Manassas, Virginia 20110 (703) 392-7676

Gifford W. Price Mackey Price & Williams 170 South Main Street Suite 900 Salt Lake City, Utah 84101 (801) 575-5000

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing MOTION TO STRIKE BRIEF OF AMICUS CURIAE OR FOR LEAVE TO RESPOND was furnished by United States Mail or delivered to the following on this the 2nd day of February, 1999 to:

Jeffrey S. Gray, Esquire
Assistant Attorney General
Consumer Rights Division
160 East 300 South
Fifth floor
Salt Lake City, Utah 84114-0872

and

Roberta J. Cordano
Assistant Attorney General
445 Minnesota Street, Suite 1200
St. Paul, Minnesota 55101-2130