An attorney representing Connecticut’s Attorney General and state insurance commissioner has sent a letter to the U.S. Second Circuit Court of Appeals notifying the court that a recent decision Safelite’s attorneys have cited as relative to their pending appeal to halt enforcement of Connecticut’s anti-steering law can also be sourced in support the state’s case.
Safelite had sued state Attorney General George Jepsen and State Insurance Commissioner Thomas Leonardi and asked for an injunction to halt enforcement of Public Act 13-67 (an Act Concerning Automotive Glass Work). After the District Court judge decided against an immediate injunction to halt enforcement, Safelite appealed this decision to the Appellate Court. A hearing was held at the Appellate level and a decision has not yet been handed down.
“Appellees [Connecticut Attorney General and insurance commissioner] write to respond to the notice of supplemental authority filed by appellants [Safelite and Safelite Solutions] concerning American Meat Institute v. U.S. Department of Agriculture … in which the D.C. Circuit held that the test articulated in Zauderer v. Office of Disciplinary Counsel applies to compelled commercial disclosures that serve government interests ‘beyond problems of deception,’” according to Connecticut’s letter filed with the court.
“In so holding, the D.C. Circuit adopted both the approach followed by this Circuit and the rationale for it: The commercial speaker’s interest in opposing compelled disclosure of any particular factual information is ‘minimal.’ The D.C. Circuit also expressly overruled three of its prior decisions limiting Zauderer to disclosures aimed at correcting consumer deception—two of which the appellants relied upon in their briefs,” the attorney claims.
“Moreover, the D.C. Circuit’s opinion supports the appellees’ argument, set forth on pages 16-19 of their brief, that the Zauderer standard should be applied to the disclosure required by PA 13-67(c) because it addresses significant and longstanding government interests. Similar to the interest assessed in the opinion, Connecticut’s interest in protecting consumer choice in automotive insurance repair work has a ‘historical pedigree that lifts it well above idle curiosity,’” the state’s attorney writes.
In its letter to the court, Safelite’s attorneys claim the D.C. court noted, “The possibility that some required factual disclosures could be so one-sided or incomplete that they would not qualify as ‘factual and uncontroversial,’ recognizing that a disclosure could ‘communicate a message that is controversial for some reason other than dispute about simple factual accuracy’ and thereby fall outside Zauderer’s scope. That ‘possibility’ appears in this case, where the compelled speech effectively communicates an endorsement of a competing business.”
The Appellate Court has not issued any new decision at press time.
To view a copy of Connecticut’s letter to the court, click here.