Safelite Group, Inc. v. Jepsen

13-4761-cv
Safelite Group, Inc. v. Jepsen
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2013
4
5 (Argued: May 19, 2014 Decided: September 4, 2014)
6
7 Docket No. 13-4761-cv
8
9 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
10 SAFELITE GROUP, INC., SAFELITE SOLUTIONS LLC,
11
12 Plaintiffs-Appellants,
13
14 v.
15
16 GEORGE JEPSEN, in his official capacity as Attorney General for
17 the State of Connecticut, THOMAS LEONARDI, in his official
18 capacity as the Commissioner of the Connecticut Insurance
19 Department,
20
21 Defendants-Appellees.
22 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
23
24 B e f o r e: WINTER, WALKER, and CABRANES, Circuit Judges.
25
26 Appeal from the denial by the United States District Court
27 for the District of Connecticut (Janet Bond Arterton, Judge) of a
28 preliminary injunction against enforcement of Connecticut’s law,
29 “An Act Concerning Automotive Glass Work,” Public Act 13-67. We
30 vacate and order a preliminary injunction on First Amendment
31 grounds.
32 JAY P. LEFKOWITZ (Steven J.
33 Menashi, Kirkland & Ellis LLP, New
34 York, NY; Benjamin Carl Jensen,
35 Robinson & Cole LLP, Hartford
36 Connecticut, on the brief),
37 Kirkland & Ellis LLP, New York, NY,
38 for Plaintiffs-Appellants.
1
1
2 JOSEPH J. CHAMBERS, Assistant
3 Attorney General (Matthew J.
4 Budzik, Assistant Attorney General,
5 on the brief) for George Jepsen,
6 Attorney General for the State of
7 Connecticut, Hartford, CT, for
8 Defendants-Appellees.
9
10
11 WINTER, Circuit Judge:
12
13 Safelite Group, Inc., and its subsidiary, insurance-claims
14 administrator Safelite Solutions LLC, (collectively “Safelite”),
15 appeal from a denial of a preliminary injunction against
16 enforcement of Connecticut’s Public Act 13-67 (“PA 13-67"), “An
17 Act Concerning Automotive Glass Work.” Safelite claims that the
18 Act violates the First Amendment because it is an impermissible
19 constraint on commercial speech.
20 We hold that the district court erred in applying rational
21 basis review under Zauderer v. Office of Disciplinary Counsel of
22 the Supreme Court of Ohio, 471 U.S. 626 (1985), but rather should
23 have applied intermediate scrutiny under Central Hudson Gas &
24 Electric Corp. v. Public Service Commission of New York, 447 U.S.
25 557 (1980). Concluding that the statute cannot survive such
26 scrutiny on the present record, we vacate and order an injunction
27 preventing enforcement of Public Act 13-67(c)(2).
28 BACKGROUND
29 We begin by describing the commercial context. Safelite
30 operates an insurance claims management company throughout the
2
1 United States. Its affiliate, Safelite AutoGlass, operates in
2 Connecticut and provides auto-glass repair and replacement.
3 When car owners with a claim concerning auto-glass call
4 their insurance company, they may, depending on the insurance
5 company, be connected to Safelite Solutions. During this call, a
6 Safelite Solutions representative reads a script that explains
7 the consumer’s repair options. If practicable, the script
8 recommends Safelite AutoGlass to do the auto-glass repairs. If a
9 Safelite AutoGlass facility is not available, the agent may
10 recommend a shop that is on a list of seventy non-affiliated
11 glass-repair shops pre-approved by Safelite Solutions. In order
12 to be included on this list, the local repair shop must meet
13 certain criteria and qualifications, and sign a participation
14 agreement.
15 Under pre-existing Connecticut law, Conn. Gen. Stat. § 38a-
16 354 (2014), automobile insurers and claims administrators are
17 prohibited from requiring where repairs should be made and must
18 give a notice of a right to choose on appraisals or estimates.
19 According to the statute, appraisers may not “require that
20 appraisals or repairs . . . be made in a specified facility or
21 repair shop or shops.” Id. § 38a-354(a). Moreover,
22 [n]o insurance company doing business in
23 [Connecticut], or agent or adjuster for such
24 company shall (1) require any insured to use
25 a specific person for the provision of
26 automobile physical damage repairs,
27 automobile glass replacement, glass repair
3
1 service or glass products, or (2) state that
2 choosing a facility other than a motor
3 vehicle repair shop participating in a motor
4 vehicle program established by such company
5 will result in delays in repairing the motor
6 vehicle or a lack of guarantee for repair
7 work.
8
9 Id. § 38a-354(b). Furthermore, any written appraisal or estimate
10 must contain the following language in bold and in no less than
11 ten-point font:
12 NOTICE:
13 YOU HAVE THE RIGHT TO CHOOSE THE LICENSED
14 REPAIR SHOP WHERE THE DAMAGE TO YOUR MOTOR
15 VEHICLE WILL BE REPAIRED.
16
17 Id. § 38a-354(c). Safelite alleges its compliance with this
18 law. Although not required by law, the Safelite Solutions script
19 informs consumers of its affiliation with Safelite AutoGlass.
20 The Connecticut General Assembly undertook an examination of
21 the business model adopted by Safelite with regard to auto-glass
22 repair. In May 2013, it passed PA 13-67, which took effect on
23 January 1, 2014. The Act reads in relevant part:
24 No glass claims representative for an
25 insurance company doing business in this
26 state or a third-party claims administrator
27 for such company shall provide an insured
28 with the name of, schedule an appointment for
29 an insured with or direct an insured to, a
30 licensed glass shop that is owned by (A) such
31 company, (B) such claims administrator, or
32 (C) the same parent company as such insurance
33 company or claims administrator, unless such
34 representative or claims administrator
35 provides the insured with the name of at
36 least one additional licensed glass shop in
37 the area where the automotive glass work is
38 to be performed.
4
1
2 PA 13-67(c)(2). Thus, Section 38a-354 prohibits insurance
3 companies and claims administrators from requiring insureds to
4 patronize their affiliates for repair purposes. PA 13-67
5 additionally prohibits them from mentioning their affiliates with
6 regard to glass claims unless they also name a competitor.
7 The legislative history of PA 13-67 revealed no consumer
8 dissatisfaction with Safelite’s business model but substantial
9 concerns on the part of unaffiliated glass dealers. While the
10 Connecticut Insurance Department stated that current law, as
11 described above, provided adequate protection for consumers,1
12 several legislators stated that PA 13-67 was needed to protect
13 local glass dealers not affiliated with Safelite.2
1
At hearings before the Insurance and Real Estate Committee of the
Connecticut General Assembly, the Connecticut Insurance Department testified
that the existing law, section 38a-354, was “not problematic for consumers.”
The Department also testified that its Consumer Affairs Division “ha[d]
received no complaints regarding” section 38a-354, that it “believe[d]
consumers [were] adequately protected by current law and that [PA 13-67 was]
unnecessary.”
2
During the House Session on May 7, 2013, Representative Robert Megna
spoke in support of the bill that would become PA 13-67, stating that it was
designed to “help out those small businesses from disappearing . . . [i.e.,]
small businesses that employ people, spend money, do economic development in
. . . our state.” He also stated that “[t]hese are small businesses that are
located here in the state, . . . that have property, that buy things, that
. . . employ people here in the state.” Representative David Yaccarino also
spoke in support of the House bill, saying, “I’d like to see a more fair
playing field for both Safelite and mainly mom and pops.” He also said,
“[for] most of the mom-and-pop shops, the glass is Connecticut, it’s all from
Connecticut, all Connecticut jobs.”
Representative Anthony D’Amelio mentioned that he was in support of the
law in order to protect “the people that contribute to the little leagues in
our town. These are the people that contribute to functions in our churches
and they’re literally being squeezed out of the marketplace.”
During the Senate Session on May 22, 2013, Senator Kevin Kelly also
spoke in support of the bill in order to help local businesses: “[T]he
underlying purpose of the bill is not only to provide notice to the insured,
5
1 Safelite brought the present action on July 26, 2013,
2 challenging PA 13-67 as infringing its First Amendment rights and
3 constituting discrimination against interstate commerce under the
4 Commerce Clause. Safelite moved for a preliminary injunction,
5 which was denied by the district court. Safelite brought the
6 present appeal. The law took effect on January 1, 2014.
7 Safelite states, without objection, that it has since complied
8 with PA 13-67.
9 DISCUSSION
10 We review a district court’s denial of a motion for a
11 preliminary injunction for abuse of discretion. Int’l Dairy
12 Foods Ass’n v. Amestoy, 92 F.3d 67, 70 (2d Cir. 1996). We review
13 the district court’s legal conclusions de novo. County of Seneca
14 v. Cheney, 12 F.3d 8, 11 (2d Cir. 1993). In “First Amendment
15 cases, ‘an appellate court has an obligation to make an
16 independent examination of the whole record in order to make sure
17 that the judgment does not constitute a forbidden intrusion on
18 the field of free expression.’” N.Y. Progress & Prot. PAC v.
19 Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (quoting Bose Corp. v.
20 Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984)).
21 a) Rational Basis Review versus Intermediate Scrutiny
but also to give an opportunity for local dealers to participate on an equal
footing with, I’m going to say, other, large glass dealers.”
6
1 When a party challenges a law or regulation on the basis
2 that it restricts or impermissibly regulates speech protected by
3 the First Amendment, we first look at the genre of speech
4 involved.
5 It is undisputed that the speech in this case is commercial
6 speech “entitled to the protection of the First Amendment, albeit
7 to protection somewhat less extensive than that afforded
8 ‘noncommercial speech.’” Zauderer, 471 U.S. at 637. “The States
9 and the Federal Government are free to prevent the dissemination
10 of commercial speech that is false, deceptive, or misleading, or
11 that proposes an illegal transaction. Commercial speech that is
12 not false or deceptive and does not concern unlawful activities,
13 however, may be restricted only in the service of a substantial
14 governmental interest, and only through means that directly
15 advance that interest.” Id. at 638 (citing Central Hudson, 447
16 U.S. at 566) (other internal citations omitted).
17 The regulation of commercial speech is subject to different
18 levels of review, depending on the nature of the law. In Central
19 Hudson, the Court established that a restriction on commercial
20 speech is subject to intermediate scrutiny, that is, a
21 determination of whether the restriction directly advances a
22 substantial governmental interest and is not overly restrictive.
23 447 U.S. at 564. In Zauderer, however, the Court created an
24 exception that an informational disclosure law -- as opposed to a
7
1 prohibition on speech -- was subject to rational review, that is,
2 a determination of whether the required disclosure is reasonably
3 related to the state’s interest. 471 U.S. at 651.
4 The district court found that PA 13-67 was simply an
5 informational disclosure law and accordingly applied the rational
6 basis review test. Safelite Grp. v. Jepsen, No. 3:13cv1068
7 (JBA), 2013 WL 6709240, at *7 (D. Conn. Dec. 18, 2013). We
8 disagree and hold that the district court should have applied
9 intermediate scrutiny under Central Hudson.
10 Zauderer involved a state law that regulated commercial
11 speech by attorneys, specifically whether an attorney could
12 “solicit[] business by running newspaper advertisements
13 containing nondeceptive illustrations and legal advice, and
14 whether [the] State [could] seek to prevent potential deception
15 of the public by requiring attorneys to disclose in their
16 advertising certain information regarding fee arrangements.” 471
17 U.S. at 629. The plaintiff in Zauderer was an attorney who “ran
18 a small advertisement in the Columbus Citizen Journal advising
19 its readers that his law firm would represent defendants in
20 drunken driving cases and that his clients’ ‘full legal fee would
21 be refunded if they were convicted of DRUNK DRIVING.’” Id. at
22 629-30 (alterations omitted). The attorney was disciplined by
23 the Office of Disciplinary Counsel of the Supreme Court of Ohio
24 for violating the Ohio Code of Professional Responsibility, which
8
1 requires that a client bear certain costs even if the client
2 loses. Id. at 631, 634-35.
3 In applying rational basis review, the Court found that by
4 requiring the attorneys to “state that the client may have to
5 bear certain expenses even if he loses, Ohio has not attempted to
6 prevent attorneys from conveying information to the public; it
7 has only required them to provide somewhat more information than
8 they might otherwise be inclined to present.” Id. at 650. The
9 Court went on to say: “We have, to be sure, held that in some
10 instances compulsion to speak may be as violative of the First
11 Amendment as prohibitions on speech.” Id. (citing Wooley v.
12 Maynard, 430 U.S. 705 (1977) (holding that a law requiring New
13 Hampshire license plates to display the state’s motto, “Live Free
14 or Die,” violated the First Amendment rights of the owners who
15 contested the law)); Miami Herald Publ’g Co. v. Tornillo, 418
16 U.S. 241 (1974) (holding that Florida’s “right to reply” statute
17 granting a political candidate equal space to answer criticism in
18 newspapers violated the newspaper’s First Amendment rights)).
19 The asserted governmental interest in Zauderer was to ensure that
20 attorneys advertise “in a dignified manner,” 471 U.S. at 647, and
21 to “ensure that attorneys . . . do not use false or misleading
22 advertising to stir up meritless litigation against innocent
23 defendants,” id. at 643.
9
1 In contrast, Central Hudson involved a utility company’s
2 challenge to a regulation of the New York Public Service
3 Commission that banned any advertising that “promot[ed] the use
4 of electricity” because the state’s utility system could not
5 “continue [to] furnish[] all customer demands for the 1973-1974
6 winter.” 447 U.S. at 558-59. The Court outlined the following
7 test for examining whether such restrictions on commercial speech
8 are protected by the First Amendment:
9 The State must assert a substantial interest
10 to be achieved by restrictions on commercial
11 speech. Moreover, the regulatory technique
12 must be in proportion to that interest. The
13 limitation on expression must be designed
14 carefully to achieve the State’s goal.
15 Compliance with this requirement may be
16 measured by two criteria. First, the
17 restriction must directly advance the state
18 interest involved; the regulation may not be
19 sustained if it provides only ineffective or
20 remote support for the government’s purpose.
21 Second, if the governmental interest could be
22 served as well by a more limited restriction
23 on commercial speech, the excessive
24 restrictions cannot survive.
25
26 Id. at 564. The Court held that the regulation violated the
27 First Amendment rights of the utility company because the law was
28 overly restrictive. Id. at 570-71.
29 In interpreting these Supreme Court precedents, our previous
30 cases have drawn a distinction between “standards of review [to
31 be applied] to laws mandating commercial speech disclosures and
32 laws restricting commercial speech.” Conn. Bar Ass’n v. United
33 States, 620 F.3d 81, 93 n.15 (2d Cir. 2010). In National
10
1 Electric Manufacturers Association v. Sorrell, 272 F.3d 104, 107
2 (2d Cir. 2001), we upheld a statute that “require[d]
3 manufacturers of some mercury-containing products to label their
4 products and packaging to inform consumers that the products
5 contain mercury and, on disposal, should be recycled or disposed
6 of as hazardous waste.” In New York State Restaurant Ass’n v.
7 New York City Board of Health, 556 F.3d 114 (2d Cir. 2009)
8 (“NYSRA”), we upheld a New York City regulation that required
9 certain restaurants to post calorie content information on their
10 menus and menu boards. We found that “the First Amendment is not
11 violated, where[,] as here, the law in question mandates a simple
12 factual disclosure of caloric information and is reasonably
13 related to New York City's goals of combating obesity.” Id. at
14 118.
15 In both NYSRA and Sorrell, we relied on that fact that
16 [c]ommercial disclosure requirements are treated
17 differently from restrictions on commercial speech
18 because mandated disclosure of accurate, factual,
19 commercial information does not offend the core First
20 Amendment values of promoting efficient exchange of
21 information or protecting individual liberty interests.
22 Such disclosure furthers, rather than hinders, the First
23 Amendment goal of the discovery of truth and contributes
24 to the efficiency of the “marketplace of ideas.”
25
26 Sorrell, 272 F.3d at 113-14 (emphasis supplied).
27 Indeed, in Sorrell, we stated that “Zauderer, not Central
28 Hudson [ ], describes the relationship between means and ends
29 demanded by the First Amendment in compelled commercial
11
1 disclosure cases. The Central Hudson test should be applied to
2 statutes that restrict commercial speech.” Id. at 115 (citation
3 omitted). Because the district court concluded that the law
4 mandated the disclosure of “purely factual and uncontroversial
5 information,” see Safelite Grp., Inc. v. Jepsen, 988 F. Supp. 2d
6 199, 207 (D. Conn. 2013) (quoting Zauderer, 471 U.S. at 651), it
7 concluded that rational basis review must apply. See also id. at
8 207 (noting that “Safelite acknowledges that PA 13-67(c)(2)
9 contains no restrictions on speech,” but rather creates a
10 “trigger,” which mandates speech only if Safelite chooses to
11 direct claimants to its affiliates).
12 On a cursory review, our precedent arguably supports the
13 district court’s conclusion that this law simply requires
14 disclosure of accurate, factual information. But all of our case
15 law applying Zauderer review to factual, commercial disclosure --
16 indeed, as far as we know, all federal cases applying Zauderer in
17 that context -- has dealt with disclosure requirements about a
18 company's own products or services. See Sorrell, 272 F.3d at 116
19 (listing “innumerable” state and federal regulations that require
20 disclosure, all of which appear to require information about the
21 commercial speakers’ own product or service, not about
22 competitors’). This distinction is important, indeed,
23 dispositive in this case.
12
1 There is a good reason for this. Prohibiting a business from
2 promoting its own product on the condition that it also promote
3 the product of a competitor is a very serious deterrent to
4 commercial speech. Moreover, such laws are highly likely to
5 further covertly protectionist, rather than consumer information,
6 goals -- in particular, by protecting existing businesses, which
7 may be well known, against new entrants. In the present case, for
8 example, competitors, deeming Safelite to have an advantage in
9 contacting potential consumers, successfully sought the
10 challenged legislation. Safelite’s competitive advantage,
11 however, is in lower advertising costs (in the broadest sense).
12 Such lower costs are a legitimate competitive advantage.
13 On that basis, because the disclosure required here compels
14 speech that goes beyond the speaker’s own product or service, we
15 conclude that intermediate scrutiny applies to PA 13-67. As
16 noted, PA 13-67 restricts insurers and claims administrators from
17 mentioning the name of, or scheduling an appointment with, an
18 affiliated glass company unless they also give the name of a
19 competing glass company in the area. The law does not mandate
20 disclosure of any information about products or services of
21 affiliated glass companies or of the competitor’s products or
22 services. Instead, it requires that insurance companies or
23 claims administrators choose between silence about the products
24 and services of their affiliates or give a (random) free
13
1 advertisement for a competitor. This is a regulation of content
2 going beyond disclosure about the product or services offered by
3 the would-be speaker. Indeed, it prevents the speaker from
4 making such disclosure by requiring advertisements for a
5 competitor and thereby deters helpful disclosure to consumers.
6 Unlike the earlier mentioned cases that applied Zauderer’s
7 rational basis test, the speech requirement here does more to
8 inhibit First Amendment values than to advance them.
9 Accordingly, we conclude that PA 13-67 requires the application
10 of intermediate scrutiny. Cf. Evergreen Ass’n v. City of New
11 York, 740 F.3d 233, 250-51 (2d Cir. 2014) (finding that an
12 ordinance requiring pregnancy service centers to disclose that
13 “the New York City Department of Health and Mental Hygiene
14 encourages women who are or may be pregnant to consult with a
15 licensed provider” violated the First Amendment under both
16 intermediate and strict scrutiny because it “require[d] pregnancy
17 centers to advertise on behalf of the City”).
18 b) Application of Central Hudson
19 Under Central Hudson, we must examine whether: (i) the
20 regulated expression is false or misleading; (ii) the government
21 interest is substantial; (iii) PA 13-67 directly and materially
22 advances the governmental interest asserted; and (iv) PA 13-67 is
23 no more extensive than necessary to serve that interest. 447
24 U.S. at 566.
14
1 First, we determine whether Safelite’s commercial speech is
2 tainted by lies, misleading statements, or an illegal purpose,
3 all of which may be regulated. Central Hudson, 447 U.S. at 563-
4 64 (“The government may ban forms of communication more likely to
5 deceive the public than to inform it, or commercial speech
6 related to illegal activity. If the communication is neither
7 misleading nor related to unlawful activity, the government’s
8 power is more circumscribed.” (internal citations omitted)).
9 There is no claim, much less evidence, that Safelite’s
10 communications to its customers were false, misleading, or
11 illegal. Indeed, there is no claim of consumer complaints about
12 the effect of Safelite’s business model. See Note 1, supra. We
13 therefore must conclude that PA 13-67 does not meet the first
14 prong of Central Hudson’s intermediate scrutiny test.
15 We turn now to whether Connecticut’s interest in restricting
16 Safelite’s speech is substantial, and whether PA 13-67 directly
17 and materially advances that interest. Appellees argue that the
18 government has a substantial interest in “protecting consumer
19 choice, preventing steering, and combatting the undue influence
20 of self-interested insurance claims adjusters.”
21 As an initial matter, in light of the record evidence that
22 the legislation at issue was designed to benefit Safelite’s
23 competitors, see Note 2, supra, we are skeptical that the
24 government’s asserted consumer protection interests are genuine
15
1 and not merely post-hoc rationalizations. See Note 1, supra.
2 However, even if we were to acknowledge the government’s
3 substantial interest in consumer choice, PA 13-67 advances that
4 interest, if at all, in an indiscernible or de minimis fashion.
5 As became clear at oral argument, price is likely irrelevant to
6 the consumer because the insurance company pays everything over a
7 deductible. As is also clear from the history of the law, the
8 record, and oral argument, there is no issue regarding the
9 quality of glass provided by Safelite compared to that provided
10 by competing glass dealers. Nor is there an issue as to the
11 quality of relative repair services. Appellees repeatedly state
12 that the law furthers “consumer choice,” but consumer choice is a
13 means to an end: the maximization of consumer satisfaction. By
14 having to mention only the name of a competitor, Safelite does
15 not provide the consumer with information potentially enhancing
16 that satisfaction.
17 This brings us to the fourth and final prong in the Central
18 Hudson test: whether PA 13-67 is more restrictive than necessary
19 to effectuate the government’s legitimate interests. “The
20 dictates of Central Hudson do not require [a government] to adopt
21 the least restrictive means of advancing its asserted interests,”
22 nor “that there be no conceivable alternative, but only that the
23 regulation not burden substantially more speech than is necessary
24 to further the government’s legitimate interests.” Clear Channel
16
1 Outdoor, Inc. v. City of New York, 594 F.3d 94, 104 (2d Cir.
2 2010) (internal citations and quotation marks omitted).
3 Pre-existing law provides a thoroughly effective way of
4 protecting meaningful consumer choice. Before PA 13-67 took
5 effect, the script that Safelite employees used (and continue to
6 use) stated that its customers had the right to choose any repair
7 shop. See Conn. Gen. Stat. §§ 38a-354(b)(1), (c). Consumers were
8 further protected from undue steering and influence under the
9 pre-existing law, which prohibited Safelite from “stat[ing] that
10 choosing a facility other than a motor vehicle repair shop
11 participating in a motor vehicle program established by
12 [Safelite] will result in delays in repairing the motor vehicle
13 or a lack of guarantee for repair work.” Id. § 38a-354(b)(2).3
14 In addition, PA 13-67 is more extensive than necessary. In
15 its brief, Connecticut acknowledges a number of alternative
16 proposals that were rejected by the State legislature. At least
17 one of these -- prohibiting steering unless the consumer was
18 first informed of their right to choose a glass shop -- would
19 have served the same governmental interests, but would have been
20 less burdensome on Safelite's speech rights than requiring
21 Safelite to advertise the name of a direct competitor. Such an
3
Additionally, even though it is not required to do so by law, Safelite
independently discloses that it is affiliated with Safelite AutoGlass.
Requiring such disclosure by law would clearly be less restrictive than PA 13-
67.
17
1 alternative would simply be a straight-forward disclosure about
2 Safelite's services and its relationship with the insured.
3 Finally, we conclude that PA 13-67 is also underinclusive,
4 because it only applies to third-party insurance claims
5 administrators who also own an affiliated glass shop. It does
6 not apply to insurance companies themselves or to claims
7 administrators who do not own an affiliated glass shop.
8 Accordingly, customers of those companies would not get the
9 information about glass shops that Connecticut contends is
10 necessary to protect consumer choice.
11 CONCLUSION
12 For the reasons stated, we vacate the district court’s
13 ruling. Because the case presents few issues of fact or law, and
14 those issues are easily resolved,4 as discussed above, we order a
15 preliminary injunction against enforcement of PA 13-67.
16 We remand the cause to the district court with instructions
17 to enter a preliminary injunction and for such further
4
The requirements for a party seeking a preliminary injunction are
well-settled. First, in every case, the moving party must show “irreparable
harm.” Int’l Dairy Foods, 92 F.3d at 70. A “direct limitation on speech,”
including those imposed via the regulated, mandatory communication of specific
content, “creates a presumption of irreparable harm,” Evergreen Ass’n, 740
F.3d at 246, and, seeing no rebuttal of this presumption, we hold that the
first prong has been satisfied. Second, where “the injunction at issue stays
government action taken in the public interest pursuant to a statutory
scheme,” the movant must demonstrate “likelihood of success on the merits.”
Int’l Dairy Foods, 92 F.3d at 70 (internal citations, quotation marks, and
alterations omitted). As our earlier discussion demonstrates, Safelite has
clearly met its burden under the second prong and is therefore entitled to
relief.
18
1 proceedings as may be appropriate in the circumstances and
2 consistent with this Opinion.
3
4
5
6
19