     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
