Safelite Group, Inc. v. Jepsen

13-4761-cv
Safelite Group, Inc. v. Jepsen
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2013 3
4
(Argued: May 19, 2014 Decided: September 4, 2014) 5
6
Docket No. 13-4761-cv 7
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SAFELITE GROUP, INC., SAFELITE SOLUTIONS LLC, 10
11
Plaintiffs-Appellants, 12
13
v. 14
15
GEORGE JEPSEN, in his official capacity as Attorney General for 16
the State of Connecticut, THOMAS LEONARDI, in his official 17
capacity as the Commissioner of the Connecticut Insurance 18
Department, 19
20
Defendants-Appellees. 21
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23
B e f o r e: WINTER, WALKER, and CABRANES, Circuit Judges. 24
25
Appeal from the denial by the United States District Court 26
for the District of Connecticut (Janet Bond Arterton, Judge) of a 27
preliminary injunction against enforcement of Connecticut’s law, 28
“An Act Concerning Automotive Glass Work,” Public Act 13-67. We 29
vacate and order a preliminary injunction on First Amendment 30
grounds. 31
JAY P. LEFKOWITZ (Steven J. 32
Menashi, Kirkland & Ellis LLP, New 33
York, NY; Benjamin Carl Jensen, 34
Robinson & Cole LLP, Hartford 35
Connecticut, on the brief), 36
Kirkland & Ellis LLP, New York, NY, 37
for Plaintiffs-Appellants. 38
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1
JOSEPH J. CHAMBERS, Assistant 2
Attorney General (Matthew J. 3
Budzik, Assistant Attorney General, 4
on the brief) for George Jepsen, 5
Attorney General for the State of 6
Connecticut, Hartford, CT, for 7
Defendants-Appellees. 8
9
10
WINTER, Circuit Judge: 11
12
Safelite Group, Inc., and its subsidiary, insurance-claims 13
administrator Safelite Solutions LLC, (collectively “Safelite”), 14
appeal from a denial of a preliminary injunction against 15
enforcement of Connecticut’s Public Act 13-67 (“PA 13-67"), “An 16
Act Concerning Automotive Glass Work.” Safelite claims that the 17
Act violates the First Amendment because it is an impermissible 18
constraint on commercial speech. 19
We hold that the district court erred in applying rational 20
basis review under Zauderer v. Office of Disciplinary Counsel of 21
the Supreme Court of Ohio, 471 U.S. 626 (1985), but rather should 22
have applied intermediate scrutiny under Central Hudson Gas & 23
Electric Corp. v. Public Service Commission of New York, 447 U.S. 24
557 (1980). Concluding that the statute cannot survive such 25
scrutiny on the present record, we vacate and order an injunction 26
preventing enforcement of Public Act 13-67(c)(2). 27
BACKGROUND 28
We begin by describing the commercial context. Safelite 29
operates an insurance claims management company throughout the 30
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United States. Its affiliate, Safelite AutoGlass, operates in 1
Connecticut and provides auto-glass repair and replacement. 2
When car owners with a claim concerning auto-glass call 3
their insurance company, they may, depending on the insurance 4
company, be connected to Safelite Solutions. During this call, a 5
Safelite Solutions representative reads a script that explains 6
the consumer’s repair options. If practicable, the script 7
recommends Safelite AutoGlass to do the auto-glass repairs. If a 8
Safelite AutoGlass facility is not available, the agent may 9
recommend a shop that is on a list of seventy non-affiliated 10
glass-repair shops pre-approved by Safelite Solutions. In order 11
to be included on this list, the local repair shop must meet 12
certain criteria and qualifications, and sign a participation 13
agreement. 14
Under pre-existing Connecticut law, Conn. Gen. Stat. § 38a- 15
354 (2014), automobile insurers and claims administrators are 16
prohibited from requiring where repairs should be made and must 17
give a notice of a right to choose on appraisals or estimates. 18
According to the statute, appraisers may not “require that 19
appraisals or repairs . . . be made in a specified facility or 20
repair shop or shops.” Id. § 38a-354(a). Moreover, 21
[n]o insurance company doing business in 22
[Connecticut], or agent or adjuster for such 23
company shall (1) require any insured to use 24
a specific person for the provision of 25
automobile physical damage repairs, 26
automobile glass replacement, glass repair 27
3

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service or glass products, or (2) state that 1
choosing a facility other than a motor 2
vehicle repair shop participating in a motor 3
vehicle program established by such company 4
will result in delays in repairing the motor 5
vehicle or a lack of guarantee for repair 6
work. 7
8
Id. § 38a-354(b). Furthermore, any written appraisal or estimate 9
must contain the following language in bold and in no less than 10
ten-point font: 11
NOTICE: 12
YOU HAVE THE RIGHT TO CHOOSE THE LICENSED 13
REPAIR SHOP WHERE THE DAMAGE TO YOUR MOTOR 14
VEHICLE WILL BE REPAIRED. 15
16
Id. § 38a-354(c). Safelite alleges its compliance with this 17
law. Although not required by law, the Safelite Solutions script 18
informs consumers of its affiliation with Safelite AutoGlass. 19
The Connecticut General Assembly undertook an examination of 20
the business model adopted by Safelite with regard to auto-glass 21
repair. In May 2013, it passed PA 13-67, which took effect on 22
January 1, 2014. The Act reads in relevant part: 23
No glass claims representative for an 24
insurance company doing business in this 25
state or a third-party claims administrator 26
for such company shall provide an insured 27
with the name of, schedule an appointment for 28
an insured with or direct an insured to, a 29
licensed glass shop that is owned by (A) such 30
company, (B) such claims administrator, or 31
(C) the same parent company as such insurance 32
company or claims administrator, unless such 33
representative or claims administrator 34
provides the insured with the name of at 35
least one additional licensed glass shop in 36
the area where the automotive glass work is 37
to be performed. 38
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1
PA 13-67(c)(2). Thus, Section 38a-354 prohibits insurance 2
companies and claims administrators from requiring insureds to 3
patronize their affiliates for repair purposes. PA 13-67 4
additionally prohibits them from mentioning their affiliates with 5
regard to glass claims unless they also name a competitor. 6
The legislative history of PA 13-67 revealed no consumer 7
dissatisfaction with Safelite’s business model but substantial 8
concerns on the part of unaffiliated glass dealers. While the 9
Connecticut Insurance Department stated that current law, as 10
described above, provided adequate protection for consumers, 1
11
several legislators stated that PA 13-67 was needed to protect 12
local glass dealers not affiliated with Safelite. 2
13
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,
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Safelite brought the present action on July 26, 2013, 1
challenging PA 13-67 as infringing its First Amendment rights and 2
constituting discrimination against interstate commerce under the 3
Commerce Clause. Safelite moved for a preliminary injunction, 4
which was denied by the district court. Safelite brought the 5
present appeal. The law took effect on January 1, 2014. 6
Safelite states, without objection, that it has since complied 7
with PA 13-67. 8
DISCUSSION 9
We review a district court’s denial of a motion for a 10
preliminary injunction for abuse of discretion. Int’l Dairy 11
Foods Ass’n v. Amestoy, 92 F.3d 67, 70 (2d Cir. 1996). We review 12
the district court’s legal conclusions de novo. County of Seneca 13
v. Cheney, 12 F.3d 8, 11 (2d Cir. 1993). In “First Amendment 14
cases, ‘an appellate court has an obligation to make an 15
independent examination of the whole record in order to make sure 16
that the judgment does not constitute a forbidden intrusion on 17
the field of free expression.’” N.Y. Progress & Prot. PAC v. 18
Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (quoting Bose Corp. v. 19
Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984)). 20
a) Rational Basis Review versus Intermediate Scrutiny 21
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.”
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When a party challenges a law or regulation on the basis 1
that it restricts or impermissibly regulates speech protected by 2
the First Amendment, we first look at the genre of speech 3
involved. 4
It is undisputed that the speech in this case is commercial 5
speech “entitled to the protection of the First Amendment, albeit 6
to protection somewhat less extensive than that afforded 7
‘noncommercial speech.’” Zauderer, 471 U.S. at 637. “The States 8
and the Federal Government are free to prevent the dissemination 9
of commercial speech that is false, deceptive, or misleading, or 10
that proposes an illegal transaction. Commercial speech that is 11
not false or deceptive and does not concern unlawful activities, 12
however, may be restricted only in the service of a substantial 13
governmental interest, and only through means that directly 14
advance that interest.” Id. at 638 (citing Central Hudson, 447 15
U.S. at 566) (other internal citations omitted). 16
The regulation of commercial speech is subject to different 17
levels of review, depending on the nature of the law. In Central 18
Hudson, the Court established that a restriction on commercial 19
speech is subject to intermediate scrutiny, that is, a 20
determination of whether the restriction directly advances a 21
substantial governmental interest and is not overly restrictive. 22
447 U.S. at 564. In Zauderer, however, the Court created an 23
exception that an informational disclosure law -- as opposed to a 24
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prohibition on speech -- was subject to rational review, that is, 1
a determination of whether the required disclosure is reasonably 2
related to the state’s interest. 471 U.S. at 651. 3
The district court found that PA 13-67 was simply an 4
informational disclosure law and accordingly applied the rational 5
basis review test. Safelite Grp. v. Jepsen, No. 3:13cv1068 6
(JBA), 2013 WL 6709240, at *7 (D. Conn. Dec. 18, 2013). We 7
disagree and hold that the district court should have applied 8
intermediate scrutiny under Central Hudson. 9
Zauderer involved a state law that regulated commercial 10
speech by attorneys, specifically whether an attorney could 11
“solicit[] business by running newspaper advertisements 12
containing nondeceptive illustrations and legal advice, and 13
whether [the] State [could] seek to prevent potential deception 14
of the public by requiring attorneys to disclose in their 15
advertising certain information regarding fee arrangements.” 471 16
U.S. at 629. The plaintiff in Zauderer was an attorney who “ran 17
a small advertisement in the Columbus Citizen Journal advising 18
its readers that his law firm would represent defendants in 19
drunken driving cases and that his clients’ ‘full legal fee would 20
be refunded if they were convicted of DRUNK DRIVING.’” Id. at 21
629-30 (alterations omitted). The attorney was disciplined by 22
the Office of Disciplinary Counsel of the Supreme Court of Ohio 23
for violating the Ohio Code of Professional Responsibility, which 24
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requires that a client bear certain costs even if the client 1
loses. Id. at 631, 634-35. 2
In applying rational basis review, the Court found that by 3
requiring the attorneys to “state that the client may have to 4
bear certain expenses even if he loses, Ohio has not attempted to 5
prevent attorneys from conveying information to the public; it 6
has only required them to provide somewhat more information than 7
they might otherwise be inclined to present.” Id. at 650. The 8
Court went on to say: “We have, to be sure, held that in some 9
instances compulsion to speak may be as violative of the First 10
Amendment as prohibitions on speech.” Id. (citing Wooley v. 11
Maynard, 430 U.S. 705 (1977) (holding that a law requiring New 12
Hampshire license plates to display the state’s motto, “Live Free 13
or Die,” violated the First Amendment rights of the owners who 14
contested the law)); Miami Herald Publ’g Co. v. Tornillo, 418 15
U.S. 241 (1974) (holding that Florida’s “right to reply” statute 16
granting a political candidate equal space to answer criticism in 17
newspapers violated the newspaper’s First Amendment rights)). 18
The asserted governmental interest in Zauderer was to ensure that 19
attorneys advertise “in a dignified manner,” 471 U.S. at 647, and 20
to “ensure that attorneys . . . do not use false or misleading 21
advertising to stir up meritless litigation against innocent 22
defendants,” id. at 643. 23
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In contrast, Central Hudson involved a utility company’s 1
challenge to a regulation of the New York Public Service 2
Commission that banned any advertising that “promot[ed] the use 3
of electricity” because the state’s utility system could not 4
“continue [to] furnish[] all customer demands for the 1973-1974 5
winter.” 447 U.S. at 558-59. The Court outlined the following 6
test for examining whether such restrictions on commercial speech 7
are protected by the First Amendment: 8
The State must assert a substantial interest 9
to be achieved by restrictions on commercial 10
speech. Moreover, the regulatory technique 11
must be in proportion to that interest. The 12
limitation on expression must be designed 13
carefully to achieve the State’s goal. 14
Compliance with this requirement may be 15
measured by two criteria. First, the 16
restriction must directly advance the state 17
interest involved; the regulation may not be 18
sustained if it provides only ineffective or 19
remote support for the government’s purpose. 20
Second, if the governmental interest could be 21
served as well by a more limited restriction 22
on commercial speech, the excessive 23
restrictions cannot survive. 24
25
Id. at 564. The Court held that the regulation violated the 26
First Amendment rights of the utility company because the law was 27
overly restrictive. Id. at 570-71. 28
In interpreting these Supreme Court precedents, our previous 29
cases have drawn a distinction between “standards of review [to 30
be applied] to laws mandating commercial speech disclosures and 31
laws restricting commercial speech.” Conn. Bar Ass’n v. United 32
States, 620 F.3d 81, 93 n.15 (2d Cir. 2010). In National 33
10

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Electric Manufacturers Association v. Sorrell, 272 F.3d 104, 107 1
(2d Cir. 2001), we upheld a statute that “require[d] 2
manufacturers of some mercury-containing products to label their 3
products and packaging to inform consumers that the products 4
contain mercury and, on disposal, should be recycled or disposed 5
of as hazardous waste.” In New York State Restaurant Ass’n v. 6
New York City Board of Health, 556 F.3d 114 (2d Cir. 2009) 7
(“NYSRA”), we upheld a New York City regulation that required 8
certain restaurants to post calorie content information on their 9
menus and menu boards. We found that “the First Amendment is not 10
violated, where[,] as here, the law in question mandates a simple 11
factual disclosure of caloric information and is reasonably 12
related to New York City's goals of combating obesity.” Id. at 13
118. 14
In both NYSRA and Sorrell, we relied on that fact that 15
[c]ommercial disclosure requirements are treated 16
differently from restrictions on commercial speech 17
because mandated disclosure of accurate, factual, 18
commercial information does not offend the core First 19
Amendment values of promoting efficient exchange of 20
information or protecting individual liberty interests. 21
Such disclosure furthers, rather than hinders, the First 22
Amendment goal of the discovery of truth and contributes 23
to the efficiency of the “marketplace of ideas.” 24
25
Sorrell, 272 F.3d at 113-14 (emphasis supplied). 26
Indeed, in Sorrell, we stated that “Zauderer, not Central 27
Hudson [ ], describes the relationship between means and ends 28
demanded by the First Amendment in compelled commercial 29
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disclosure cases. The Central Hudson test should be applied to 1
statutes that restrict commercial speech.” Id. at 115 (citation 2
omitted). Because the district court concluded that the law 3
mandated the disclosure of “purely factual and uncontroversial 4
information,” see Safelite Grp., Inc. v. Jepsen, 988 F. Supp. 2d 5
199, 207 (D. Conn. 2013) (quoting Zauderer, 471 U.S. at 651), it 6
concluded that rational basis review must apply. See also id. at 7
207 (noting that “Safelite acknowledges that PA 13-67(c)(2) 8
contains no restrictions on speech,” but rather creates a 9
“trigger,” which mandates speech only if Safelite chooses to 10
direct claimants to its affiliates). 11
On a cursory review, our precedent arguably supports the 12
district court’s conclusion that this law simply requires 13
disclosure of accurate, factual information. But all of our case 14
law applying Zauderer review to factual, commercial disclosure -- 15
indeed, as far as we know, all federal cases applying Zauderer in 16
that context -- has dealt with disclosure requirements about a 17
company's own products or services. See Sorrell, 272 F.3d at 116 18
(listing “innumerable” state and federal regulations that require 19
disclosure, all of which appear to require information about the 20
commercial speakers’ own product or service, not about 21
competitors’). This distinction is important, indeed, 22
dispositive in this case. 23
12

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There is a good reason for this. Prohibiting a business from 1
promoting its own product on the condition that it also promote 2
the product of a competitor is a very serious deterrent to 3
commercial speech. Moreover, such laws are highly likely to 4
further covertly protectionist, rather than consumer information, 5
goals -- in particular, by protecting existing businesses, which 6
may be well known, against new entrants. In the present case, for 7
example, competitors, deeming Safelite to have an advantage in 8
contacting potential consumers, successfully sought the 9
challenged legislation. Safelite’s competitive advantage, 10
however, is in lower advertising costs (in the broadest sense). 11
Such lower costs are a legitimate competitive advantage. 12
On that basis, because the disclosure required here compels 13
speech that goes beyond the speaker’s own product or service, we 14
conclude that intermediate scrutiny applies to PA 13-67. As 15
noted, PA 13-67 restricts insurers and claims administrators from 16
mentioning the name of, or scheduling an appointment with, an 17
affiliated glass company unless they also give the name of a 18
competing glass company in the area. The law does not mandate 19
disclosure of any information about products or services of 20
affiliated glass companies or of the competitor’s products or 21
services. Instead, it requires that insurance companies or 22
claims administrators choose between silence about the products 23
and services of their affiliates or give a (random) free 24
13

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advertisement for a competitor. This is a regulation of content 1
going beyond disclosure about the product or services offered by 2
the would-be speaker. Indeed, it prevents the speaker from 3
making such disclosure by requiring advertisements for a 4
competitor and thereby deters helpful disclosure to consumers. 5
Unlike the earlier mentioned cases that applied Zauderer’s 6
rational basis test, the speech requirement here does more to 7
inhibit First Amendment values than to advance them. 8
Accordingly, we conclude that PA 13-67 requires the application 9
of intermediate scrutiny. Cf. Evergreen Ass’n v. City of New 10
York, 740 F.3d 233, 250-51 (2d Cir. 2014) (finding that an 11
ordinance requiring pregnancy service centers to disclose that 12
“the New York City Department of Health and Mental Hygiene 13
encourages women who are or may be pregnant to consult with a 14
licensed provider” violated the First Amendment under both 15
intermediate and strict scrutiny because it “require[d] pregnancy 16
centers to advertise on behalf of the City”). 17
b) Application of Central Hudson 18
Under Central Hudson, we must examine whether: (i) the 19
regulated expression is false or misleading; (ii) the government 20
interest is substantial; (iii) PA 13-67 directly and materially 21
advances the governmental interest asserted; and (iv) PA 13-67 is 22
no more extensive than necessary to serve that interest. 447 23
U.S. at 566. 24
14

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First, we determine whether Safelite’s commercial speech is 1
tainted by lies, misleading statements, or an illegal purpose, 2
all of which may be regulated. Central Hudson, 447 U.S. at 563- 3
64 (“The government may ban forms of communication more likely to 4
deceive the public than to inform it, or commercial speech 5
related to illegal activity. If the communication is neither 6
misleading nor related to unlawful activity, the government’s 7
power is more circumscribed.” (internal citations omitted)). 8
There is no claim, much less evidence, that Safelite’s 9
communications to its customers were false, misleading, or 10
illegal. Indeed, there is no claim of consumer complaints about 11
the effect of Safelite’s business model. See Note 1, supra. We 12
therefore must conclude that PA 13-67 does not meet the first 13
prong of Central Hudson’s intermediate scrutiny test. 14
We turn now to whether Connecticut’s interest in restricting 15
Safelite’s speech is substantial, and whether PA 13-67 directly 16
and materially advances that interest. Appellees argue that the 17
government has a substantial interest in “protecting consumer 18
choice, preventing steering, and combatting the undue influence 19
of self-interested insurance claims adjusters.” 20
As an initial matter, in light of the record evidence that 21
the legislation at issue was designed to benefit Safelite’s 22
competitors, see Note 2, supra, we are skeptical that the 23
government’s asserted consumer protection interests are genuine 24
15

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and not merely post-hoc rationalizations. See Note 1, supra. 1
However, even if we were to acknowledge the government’s 2
substantial interest in consumer choice, PA 13-67 advances that 3
interest, if at all, in an indiscernible or de minimis fashion. 4
As became clear at oral argument, price is likely irrelevant to 5
the consumer because the insurance company pays everything over a 6
deductible. As is also clear from the history of the law, the 7
record, and oral argument, there is no issue regarding the 8
quality of glass provided by Safelite compared to that provided 9
by competing glass dealers. Nor is there an issue as to the 10
quality of relative repair services. Appellees repeatedly state 11
that the law furthers “consumer choice,” but consumer choice is a 12
means to an end: the maximization of consumer satisfaction. By 13
having to mention only the name of a competitor, Safelite does 14
not provide the consumer with information potentially enhancing 15
that satisfaction. 16
This brings us to the fourth and final prong in the Central 17
Hudson test: whether PA 13-67 is more restrictive than necessary 18
to effectuate the government’s legitimate interests. “The 19
dictates of Central Hudson do not require [a government] to adopt 20
the least restrictive means of advancing its asserted interests,” 21
nor “that there be no conceivable alternative, but only that the 22
regulation not burden substantially more speech than is necessary 23
to further the government’s legitimate interests.” Clear Channel 24
16

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Outdoor, Inc. v. City of New York, 594 F.3d 94, 104 (2d Cir. 1
2010) (internal citations and quotation marks omitted). 2
Pre-existing law provides a thoroughly effective way of 3
protecting meaningful consumer choice. Before PA 13-67 took 4
effect, the script that Safelite employees used (and continue to 5
use) stated that its customers had the right to choose any repair 6
shop. See Conn. Gen. Stat. §§ 38a-354(b)(1), (c). Consumers were 7
further protected from undue steering and influence under the 8
pre-existing law, which prohibited Safelite from “stat[ing] that 9
choosing a facility other than a motor vehicle repair shop 10
participating in a motor vehicle program established by 11
[Safelite] will result in delays in repairing the motor vehicle 12
or a lack of guarantee for repair work.” Id. § 38a-354(b)(2). 3
13
In addition, PA 13-67 is more extensive than necessary. In 14
its brief, Connecticut acknowledges a number of alternative 15
proposals that were rejected by the State legislature. At least 16
one of these -- prohibiting steering unless the consumer was 17
first informed of their right to choose a glass shop -- would 18
have served the same governmental interests, but would have been 19
less burdensome on Safelite's speech rights than requiring 20
Safelite to advertise the name of a direct competitor. Such an 21
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

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alternative would simply be a straight-forward disclosure about 1
Safelite's services and its relationship with the insured. 2
Finally, we conclude that PA 13-67 is also underinclusive, 3
because it only applies to third-party insurance claims 4
administrators who also own an affiliated glass shop. It does 5
not apply to insurance companies themselves or to claims 6
administrators who do not own an affiliated glass shop. 7
Accordingly, customers of those companies would not get the 8
information about glass shops that Connecticut contends is 9
necessary to protect consumer choice. 10
CONCLUSION 11
For the reasons stated, we vacate the district court’s 12
ruling. Because the case presents few issues of fact or law, and 13
those issues are easily resolved, 4 as discussed above, we order a 14
preliminary injunction against enforcement of PA 13-67. 15
We remand the cause to the district court with instructions 16
to enter a preliminary injunction and for such further 17
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

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proceedings as may be appropriate in the circumstances and 1
consistent with this Opinion. 2
3
4
5
6
19

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