U.S. District Court Judge Janet Bond Arterton heard additional oral arguments in Safelite versus Jepsen on Monday from Safelite’s Attorney Jay Lefkowitz of Kirkland & Ellis and the State of Connecticut’s Assistant Attorney General Joseph Chambers. At issue in the case is the law requiring third-party administrators (TPAs) that own their own glass shops to provide a name of a non-affiliated glass repair shop in the same area to consumers.
Judge Arterton scheduled the additional arguments to review some additional case law that she thought was not sufficiently addressed in the earlier hearing two weeks ago. The law is scheduled to go into effect on January 1. Safelite contends it is the only entity covered by the law.
The basic case is based on whether the State of Connecticut can under the First Amendment compel Safelite to, as Safelite says, “recommend its competitors.” Two cases were at the heart of Monday’s argument: Central Hudson Gas & Electric Corp. versus Public Service Commission of New York, 447 U.S. 557 (1980), and Zauderer versus Office of Disc. Counsel, 471 U.S. 626 (1985). Depending on which was most applicable and how they are applied seemed key to Judge Arterton’s calculus. The level of scrutiny would either be strict in which case the government has a high burden to show that there is a great state interest in restraining/compelling speech, or an intermediate level of scrutiny and a lesser burden in demonstrating a state interest.
Safelite’s Attorney Lefkowitz also stressed that the precedent in the Second Circuit New York State Restaurant Association (NYSRA) case required the mandatory disclosure had to be both purely factual and uncontroversial. He argued that the disclosure of another glass dealer was not purely factual but required Safelite’s judgment as to which other glass dealer to recommend. The Second Circuit court is where an appeal in this case would be filed.
Assistant Attorney General Chambers relied more on the Zauderer case and keyed on the purpose of the statute “to promote the free flow of information” and to ensure the accuracy of that information which is consistent with the First Amendment.
Because Judge Arterton has agreed to rule before the law goes into effect on January 1, the decision is imminent. If she does issue an injunction, there would be a trial to determine whether that injunction should be made permanent. Whether she grants that injunction depends on whether the plaintiff (Safelite) is likely to win at trial and whether it will be irreparably harmed by having the law go into effect. If she does not grant the temporary injunction, Safelite has said it will immediately appeal to the appellate court (Second Circuit). If the temporary injunction is not granted and the appellate court does not intervene, the case could still move forward to trial. After a trial decision, regardless of outcome, an appeal is also likely.
Safelite again had a formidable team of attorneys this time outnumbering the state’s team five to two. Veteran court watchers know it is perilous to predict the outcomes based on judges’ questioning during oral argument. However, during the first oral argument, it seemed that Safelite’s team was more likely to win. This week’s argument seemed much more even to this observer.
Editor’s note: Contributing to this story was Stuart Zimmerman. He is a former attorney/advisor for the U.S. Department of Justice. He currently works as an Information Technology Consultant, and said that listening to the oral argument reminded him of what he liked—and didn’t like—about the practice of law.
Public court records from the Pacer system are available:
To view a copy of Safelite’s complaint, click here.
To view a copy of Safelite’s request for an injunction, click here.
To view Connecticut’s response, click here.