15-3321-cv Poughkeepsie Supermarket Corp. v. Dutchess County

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

13 th day of May, two thousand sixteen.

Present: ROSEMARY S. POOLER, DEBRA ANN LIVINGSTON, SUSAN L. CARNEY, Circuit Judges

.

_____________________________________________________

POUGHKEEPSIE SUPERMARKET CORP., d/b/a MARKET FRESH, individually and on behalf of all others similarly situated,

Plaintiff-Appellant

,

v. 15-3321-cv

DUTCHESS COUNTY, NEW YORK,

Defendant-Appellee

. 1

_____________________________________________________

Appearing for Appellant: Robert N. Isseks (Kevin D. Bloom, Bloom & Bloom, P.C., New Windsor, NY, on the brief ), Middletown, NY.

Appearing for Appellee: David L. Posn er, McCabe & Mack, LLP, Poughkeepsie, NY.

Appeal from the United States District C ourt for the Southern Di strict of New York (Seibel, J. ).

1 The Clerk of the Court is respectfully directed to amend the caption as above.2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said Dist rict Court be and it hereby is AFFIRMED

.

Plaintiff-appellant Poughkeepsie Supermar ket Corp. appeals from the October 15, 2015 opinion and order of the United St ates District Court of the So uthern District of New York (Seibel, J. ), dismissing its complaint under Federal Rule of Civil Procedure 12(b)(6). The complaint alleged that defenda nt-appellee Dutchess County’s Lo cal Law No. 9 of 1991, which requires that price stickers be pl aced on individual items for sale at retail, compelled commercial speech in violation of the First Amendment. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We review a district court’s grant of a motion to dismiss de novo, construing the complaint liberally, accepting its factual alle gations as true, and drawing all reasonable inferences in the plaintiff’s favor. See Deutsche Bank Nat’l Trust Co. v. Quicken Loans Inc ., 810 F.3d 861, 865 (2d Cir. 2015); Chambers v. Time Warner, Inc ., 282 F.3d 147, 152 (2d Cir. 2002).

“It is undisputed that the speech in this case is commercial speech ‘entitled to the protection of the First Amendment, albeit to protection somewhat less extensive than that afforded “noncommercial speech.”’” Safelite Grp., Inc. v. Jepsen , 764 F.3d 258, 261 (2d Cir. 2014) (quoting Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U.S. 626, 637 (1985)). 2 Restrictions on commercial speech are subject to intermediate scrutiny review
under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York , 447 U.S. 557 (1980). See Safelite Grp., Inc. , 764 F.3d at 261 (“In Central Hudson, the Court established that a restriction on commercial speech is subject to intermediate scrutiny, that is, a determination of whether the restriction directly advances a substantial governmental interest and is not overly restrictive.”). But, under Zauderer , “an informational disclosure law . . . [is] subject to rational review, that is, a determination of whether the required disc losure is reasonably related to the state’s interest,” Safelite Grp., Inc. , 764 F.3d at 262. See Nat’l Elec. Mfrs. Ass’n v.
Sorrell , 272 F.3d 104, 113-15 (2d Cir. 2001) (explaining why informational disclosure laws are subject to less scrutiny than are commercial speech restrictions).

Because Local Law No. 9 requires only the disclosure of purely factual and uncontroversial information—namely, item prici ng—about the retailer’s own goods, and because the disclosure requirement is supported by an inte rest greater than the gratification of consumer curiosity, we apply rationality review. See N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health , 556 F.3d 114, 133 (2d Cir. 2009); cf. Safelite Grp., Inc. , 764 F.3d at 263-64; Conn. Bar Ass’n v.
United States , 620 F.3d 81, 96 n.16 (2d Cir. 2010). When a party seeks to invalidate a law under rational review, the “burden of pe rsuasion [is] on the party challeng ing a law, who must disprove ‘every conceivable basis which might support it.’” Windsor v. United States , 699 F.3d 169, 180 (2d Cir. 2012) (quoting Heller v. Doe , 509 U.S. 312, 320 (1993)), aff’d , 133 S. Ct. 2675 (2013).

2 The district court questioned whether the First Amendment applied to this case, reasoning that the law at issue regulated conduct, not speech, but did not dismiss the complaint on this ground. See Poughkeepsie Supermarket Corp. v. County of Dutchess , — F. Supp. 3d —, 2015 WL 6128800, at *3 (S.D.N.Y. Oct. 15, 2015). We note, howev er, that the parties agree that this law compels commercial speech.3 Although Poughkeepsie Supermarket alleges facts seek ing to show that some of the reasons for implementing the law are no longer valid, it failed to allege sufficient facts to demonstrate that the law was not reasonably related to the state’ s valid interest in providing complete price
information to consumers. The district court therefore correctly granted Dutchess County’s
motion to dismiss for failure to state a claim.

We have considered the remainder of P oughkeepsie Supermarket’s arguments and find them to be without merit. Accordingly, the orde r of the district court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk