14

‐ 1581

‐ cv (Lead), 14

‐ 2113

‐ cv (XAP)

Keepers Inc. v. City of Milford



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2014

Nos. 14

‐ 1581

‐ cv (Lead); 14

‐ 2113

‐ cv (XAP)

K EEPERS

, I NC

., DBA K EEPERS

, FKA S IDEPOCKETS

, I NC

., Plaintiff

‐ Appellant

‐ Cross

‐ Appellee

,

v.

C ITY OF M ILFORD

, Defendant

‐ Appellee

‐ Cross

‐ Appellant

,

v.

S IDEPOCKETS

, I NC

., DBA K EEPERS

, A FTER D ARK LLC,

DBA R OMANTIX A DULT E MPORIUM

, Plaintiffs

‐ Cross

‐ Appellees

.

On Appeal from the United States District Court

for the District of Connecticut

A RGUED : M AY 18, 2015

D ECIDED : N OVEMBER 20, 20152 Before: C ABRANES

, R AGGI

, and C HIN

, Circuit Judges

.

Plaintiff Keepers, Inc. (“Keepers”) and defendant City of

Milford, Connecticut (“Milford” or “the City”) appeal and cross

‐

appeal, respectively, from partial summary judgment awards to each

party by the United States District Court for the District of

Connecticut (Alvin W. Thompson, Judge ). This case presents two

questions related to Chapter 2.3 Milford’s municipal code, which

regulates “adult

‐ oriented establishments.” The first is whether the

District Court improperly considered the affidavit of Milford Chief of

Police Keith Mello in granting partial summary judgment for the

City. Keepers argues that the District Court should have struck the

affidavit because it contradicted testimony given by Milford’s former

city attorney in a deposition taken pursuant to Rule 30(b)(6) of the

Federal Rules of Civil Procedure. We conclude that the District Court

did not “abuse its discretion” in considering the affidavit, and we

accordingly AFFIRM the District Court’s partial summary judgment

award to the City.

The second question is whether the City’s requirement that

sexually oriented businesses publicly post the names of their

operators, officers, and significant owners violates the First

Amendment. Keepers does not appeal a judgment by the District

Court upholding that requirement with respect to individuals who

operate, manage, or control such businesses, but Milford appeals the3 award of partial summary judgment in favor of Keepers holding the

requirement unconstitutional with respect to passive owners and

officers. The District Court should not have reached the merits of that

issue, nor does this Court do so, because Keepers’ First Amendment

challenge does not present a justiciable case or controversy under

Article III of the U.S. Constitution. Accordingly, we VACATE the

District Court’s partial judgment for Keepers insofar as it reached the

merits of the public

‐ posting requirement, and we REMAND the

cause to the District Court with direction to dismiss that claim for

lack of subject

‐ matter jurisdiction.

J ENNIFER M. K INSLEY (Daniel A. Silver, Silver

& Silver LLP, New Britain, CT, on the brief ),

Kinsley Law Office, Cincinnati, OH, for

Plaintiff

‐ Appellant

‐ Cross

‐ Appellee

.

S COTT D. B ERGTHOLD (James N. Tallberg,

Karsten & Tallberg LLC, West Hartford, CT,

on the brief ), Law Office of Scott D.

Bergthold, Chattanooga, TN, for Defendant

‐

Appellee

‐ Cross

‐ Appellant.

J OSÉ A. C ABRANES

, Circuit Judge :

Plaintiff Keepers, Inc. (“Keepers”) and defendant City of

Milford, Connecticut (“Milford” or “the City”) appeal and cross

‐4 appeal, respectively, from partial summary judgment awards to each

party by the United States District Court for the District of

Connecticut (Alvin W. Thompson, Judge ). This case presents two

questions related to Chapter 2.3 Milford’s municipal code, which

regulates “adult

‐ oriented establishments.” The first is whether the

District Court improperly considered the affidavit of Milford Chief of

Police Keith Mello in granting partial summary judgment for the

City. Keepers argues that the District Court should have struck the

affidavit because it contradicted testimony given by Milford’s former

city attorney in a deposition taken pursuant to Rule 30(b)(6) of the

Federal Rules of Civil Procedure. We conclude that the District Court

did not “abuse its discretion” in considering the affidavit, and we

accordingly AFFIRM the District Court’s partial summary judgment

award to the City.

The second question is whether the City’s requirement that

sexually oriented businesses publicly post the names of their

operators, officers, and significant owners violates the First

Amendment. Keepers does not appeal a judgment by the District

Court upholding that requirement with respect to individuals who

operate, manage, or control such businesses, but Milford appeals the

award of partial summary judgment in favor of Keepers holding the

requirement unconstitutional with respect to passive owners and

officers. The District Court should not have reached the merits of that

issue, nor does this Court do so, because Keepers’ First Amendment

challenge does not present a justiciable case or controversy under

Article III of the U.S. Constitution. Accordingly, we VACATE the5 District Court’s partial judgment for Keepers insofar as it reached the

merits of the public

‐ posting requirement, and we REMAND the

cause to the District Court with direction to dismiss that claim for

lack of subject

‐ matter jurisdiction.

I. BACKGROUND

A. Milford’s Regulation of “Adult

‐ Oriented Establishments”

Since 1996, Milford has regulated sexually oriented businesses

(“SOBs” 1 ) through its Ordinance Regulating Adult

‐ Oriented

Establishments, which forms Chapter 2.3 of its municipal code. In

2003, Milford amended Chapter 2.3 to add several new restrictions

on SOBs, including regulations for live performances involving

nudity, new licensing requirements for operators of SOBs, and

periodic inspections. 2 Most relevant here, the amended ordinance

required an SOB to obtain an “adult

‐ oriented establishment”

license—which had to state the names of everyone who applied for

1 The Milford ordinances usually refer to “adult

‐ oriented establishments,”

but they sometimes speak of “sexually oriented businesses” or “SOBs,” as do the

parties and much of the relevant case law. We follow the District Court in using

the latter term. See Keepers, Inc. v. City of Milford, Conn.

, 944 F. Supp. 2d 129, 138

n.1 (D. Conn. 2013).

2 Milford, Conn., Ordinances § 2.3 (2003); see Keepers

, 944 F. Supp. 2d at

138. Except as noted, subsequent statutory references are to the Milford municipal

code.6 it—and to post it “in a conspicuous place at or near the entrance

. . .

so that it [could] be easily read at any time.” 3

Keepers fell within the scope of the 2003 ordinance. Keepers

had been owned since 2001 by Joseph Regensberger, who initially

operated the business as a restaurant and bar called Sidepockets. 4 In

2002, however, Regensberger decided to convert Sidepockets into a

“cabaret

‐ style nightclub” featuring clothed and “seminude” female

“dance entertainment.” 5 He accordingly obtained from the City the

necessary adult

‐ entertainment license pursuant to Chapter 2.3. 6

In December 2003, shortly after Milford amended Chapter 2.3,

Keepers filed suit in the District Court, challenging the ordinance’s

constitutionality. The City agreed not to enforce the ordinance while

the litigation was pending.

In 2007, Milford repealed and replaced the ordinance. 7 Many of

the provisions in the 2007 ordinance were similar to those they

replaced, although some requirements, such as those governing

3 § 2.3

‐ 4(5) (2003).

4 App. 53. References to “App.” refer to the Appendix of Plaintiff

‐ Appellant

‐ Cross

‐ Appellee Keepers.

5 Affidavit of Joseph Regensberger, Doc. 52

‐ 6, at 2 (“Regensberger

Affidavit”).

6 Id.

7 See Sidepockets, Inc. v. City of Milford, Conn.

, 528 F. Supp. 2d 34, 35 (D.

Conn. 2007); App. 57.7 “adult arcades”—booths for viewing sexually explicit films—were

stricter. 8 Most relevant here, the 2007 ordinance introduced a more

demanding public

‐ posting requirement. Like the 2003 ordinance, the

2007 ordinance required an SOB to post its “adult

‐ oriented

establishment” license conspicuously near its entrance. But the 2007

ordinance expanded the list of individuals whose names had to

appear on a license application—and, by extension, on the publicly

posted license itself. Under the 2003 ordinance, the license had to

include only the names of “operators” 9 and “any other persons

directly involved in the management or control of the adult

‐ oriented

establishment.” 10 But the 2007 ordinance broadened that list to

include “each person with an influential interest” in the SOB or in “a

legal entity that controls” it. 11 The 2007 ordinance defined “influential

interest” to include “[a]ny of the following”:

(1) the actual power to operate the sexually oriented

business or control the operation, management or

policies of the sexually oriented business or legal

entity which operates the sexually oriented business,

8 App. 57

‐ 58.

9 “ Operator means any person, or any proprietor, shareholder, general

partner or limited partner who participates in the management or day

‐ to

‐ day

operations and/or control of the establishment.” § 2.3

‐ 2(14) (2003) (emphasis in

original).

10 §§ 2.3

‐ 4(3); 2.3

‐ 5 (2003); see App. 140.

11 § 2.3

‐ 4(d) (2007).8 (2) ownership of a financial interest of thirty percent

(30%) or more of a business or of any class of voting

securities of a business, or

(3) holding an office (e.g., president, vice president,

secretary, treasurer, managing member, managing

director, etc.) in a legal entity which operates the

sexually oriented business. 12

In short, the 2007 ordinance required SOBs to publicly post the

names of operators, managers, officers, and anyone owning at least

thirty percent of the business.

Soon after Milford passed the 2007 ordinance, and while the

earlier suit was still pending, Keepers brought a second lawsuit in

the District Court, this time challenging the new law. 13 Around the

same time, Keepers changed owners. Regensberger had encountered

several setbacks, including a brief suspension of his liquor license in

2003 as a result of alleged misbehavior by dancers at Keepers, and

the loss of his liquor license in 2007 due to prostitution at another

establishment he owned. In 2008, he sold Keepers to his bartender,

12 Id. § 2.3

‐ 2.

13 In its second suit, Keepers was joined as plaintiff by After Dark LLC

(“After Dark”), which does business as Romantix Adult Emporium. After Dark

sells sexually oriented merchandise and operates an adult “arcade.” App. 52, 54

‐

55. Although Milford named it as a cross

‐ appellee, After Dark does not join

Keepers in this appeal.9 Angela Silano, whom the record indicates to be the company’s

president and sole owner. 14

In October 2008, the District Court consolidated Keepers’ first

and second lawsuits, 15 and both parties subsequently moved for

summary judgment. 16 In its motion, Keepers challenged the 2003 and

2007 ordinances on a number of constitutional grounds, 17 and it also

asserted that the ordinances violated the zoning requirements of

Conn. Gen. Stat. § 8

‐ 2. Most relevant for this appeal, Keepers argued

that the public

‐ posting requirements of the 2003 and 2007 ordinances

violated Keepers’ “owners’, employees’ and entertainers’ [First

Amendment] right to anonymity while engaging in expressive

14 App. 54

‐ 55; see Regensberger Affidavit, Doc. 52

‐ 6, at 1

‐ 2; Affidavit of

Angela Silano, Doc. 52

‐ 7, at 1 (“Silano Affidavit”). Keepers asserts for the first

time on appeal that Keepers’ current president is not Silano but Julia Kish.

Keepers Supp. Br. 4. This assertion has no effect on our decision. As a threshold

matter, our review is generally limited to “the original papers and exhibits filed in

the district court,” Fed. R. App. P. 10(a)(1), and we ordinarily do not consider

“material not included in the record on appeal,” see Loria v. Gorman

, 306 F.3d 1271,

1280 n.2 (2d Cir. 2002). Even if “extraordinary circumstances” warranting an

exception to our usual practice were presented here, see Int ʹ l Bus. Machs. Corp. v.

Edelstein

, 526 F.2d 37, 45 (2d Cir. 1975), treating Kish as Keepers’ president would

make no difference in our reasoning. See note 137, post

.

15 App. at vii.

16 App. at viii

‐ ix.

17 Keepers invoked the First Amendment, the Fourth Amendment, the

Takings Clause of the Fifth Amendment, and the Ninth Amendment; it also

brought challenges based on facial and as

‐ applied vagueness and on deprivation

of due process under the Fourteenth Amendment. Keepers

, 944 F. Supp. 2d at 137.10 activities.” 18 Specifically, Keepers urged the District Court to apply

so

‐ called intermediate scrutiny 19 and strike down the public

‐ posting

requirements because they did not further a substantial

governmental interest. 20

In response, Milford argued that it had “a substantial interest

in regulating those who control and operate sexually oriented

businesses.” 21 Specifically, Milford contended that the public

‐ posting

requirement allows “City officials and law enforcement agents to

readily identify those who are responsible for the operation of a

18 Keepers Br. Summ. J., Doc. 51, at 60, 61.

19 “Intermediate scrutiny” applies to “regulations of expressive activity

that are not based on content.” Hobbs v. Cty. of Westchester

, 397 F.3d 133, 149 (2d

Cir. 2005). A regulation survives intermediate scrutiny if it is “‘reasonable,’ [is]

‘narrowly tailored to serve a significant governmental interest,’ and ‘leave[s] open

ample alternative channels for communication of the information.’” Id. (quoting

Clark v. Cmty. for Creative Non

‐ Violence

, 468 U.S. 288, 293 (1984)). “The narrow

tailoring requirement is satisfied so long as the regulation promotes a substantial

governmental interest that would be achieved less effectively absent the

regulation.” Id. (internal quotation marks and ellipsis omitted); see generally N.Y.

State Rifle & Pistol Ass’n, Inc. v. Cuomo

, 804 F.3d 242, 257

- 58 (2d Cir. 2015) (noting

that the Supreme Court first introduced the notion of differing levels of scrutiny

in United States v. Carolene Products Co.

, 304 U.S. 144, 153 n.4 (1938)).

20 Keepers Br. Summ. J., Doc. 51, at 60. Elsewhere in its briefing before the

District Court, Keepers refused to “concede that any standard less than strict

constitutional scrutiny applies.” See id. at 22. But most of Keepers’ argument

“assume[d] that intermediate scrutiny is the correct standard,” and it never

argued that the posting requirement had to further a compelling governmental

interest, as would be true under so

‐ called strict scrutiny. See id. at 22

‐ 23, 59

‐ 60.

21 Keepers

, 944 F. Supp. 2d at 173 (internal quotation marks omitted).11 sexually oriented business for purposes of routine inspections and

criminal investigations.” 22

On March 30, 2013, the District Court granted nearly all of

Milford’s motion for summary judgment and denied nearly all of

Keepers’ motion. 23 Applying intermediate scrutiny, the Court agreed

that Milford had a “substantial interest” in readily knowing who was

responsible for operating an SOB, and that there was a “substantial

relation between the City’s interest” and the requirement that SOBs

display the names of their operators. 24 The Court accordingly upheld

the 2003 ordinance’s posting requirement.

The Court went on to find, however, that the 2007 ordinance’s

posting requirement was “unconstitutionally broad.” 25 Posting the

names of owners and officers not involved in the actual operation of

an SOB, the Court reasoned, lacked “a substantial relationship” to the

City’s asserted interest. 26 Accordingly, the Court invalidated the 2007

22 Id.

23 The District Court granted partial summary judgment to each party in

an order of March 30, 2013, although the District Court did not enter a separate

judgment as required by Rule 58 of the Federal Rules of Civil Procedure. See Fed.

R. Civ. P. 58(a) (“Every judgment and amended judgment must be set out in a

separate document

. . . .”).

24 Keepers

, 944 F. Supp. 2d at 173.

25 Id. at 174.

26 Id. It is not entirely clear whether the District Court held

unconstitutional the 2007 ordinance’s requirement that the names of officers be

posted. Its opinion suggests as much. See id. at 174 (“[P]osting the names of12 ordinance insofar as it “require[d] the posting of the names of

individuals who do not manage, operate or control the sexually

oriented business.” 27

B. The Mello Affidavit

Keepers’ complaint alleged that various provisions of Chapter

2.3 were unconstitutionally vague. During discovery, Keepers sought

to substantiate that allegation by developing evidence that City

officials interpreted Chapter 2.3 in a manner inconsistent with its

individuals based merely on their status as a 30% shareholder or an officer not

involved in the management, operation or control of the sexually oriented

business is not substantially related to the City’s interest in enforcing the

ordinance.

. . . Thus, the court concludes that § 2.3–5(c) of the 2007 ordinance is

unconstitutional to the extent that it requires the posting of the names of

individuals who do not manage, operate or control the sexually oriented

business.” (emphasis supplied)). But in its subsequent Order of March 28, 2014,

the Court declined to respond to Milford’s argument about posting the names of

officers “because the court did not find that requirement unconstitutional.” App.

151 n.1. In this appeal, Milford seems to have adopted the interpretation provided

by the March 28 Order— i.e.

, that the Court upheld its ordinance with respect to

officers—while Keepers seems to have supposed the opposite. We assume that the

District Court ruled as its opinion suggests, and that the Court struck down the

2007 public

‐ posting requirement with respect to shareholders and officers “not

involved in the management, operation or control of the sexually oriented

business.” Keepers

, 944 F. Supp. 2d at 174. Nonetheless, our disposition of this

appeal would not differ if the District Court had actually upheld the 2007

ordinance insofar as it applied to Keepers’ officers.

27 Keepers

, 944 F. Supp. 2d at 174.13 plain meaning or in a manner that gave inadequate notice of the

conduct proscribed. 28

On December 5, 2008, Keepers served a notice of deposition on

the City pursuant to Rule 30(b)(6) of the Federal Rules of Civil

Procedure. 29 Rule 30(b)(6) permits a party to depose an organization,

including a governmental entity, by sending it a notice of deposition

“describ[ing] with reasonable particularity the matters for

examination.” After receiving such notice, the organization must

designate someone familiar with the matters described in the notice

to testify on its behalf. If the organizational deponent fails to comply

by “mak[ing] available such number of persons as will be able to give

complete, knowledgeable and binding answers on its behalf,” a court

may impose sanctions under Rule 37 of the Federal Rules of Civil

Procedure, “including the preclusion of evidence.” 30

28 See Keepers Br. 2

‐ 3; Keepers Reply Br. 6

‐ 7.

29 Fed. R. Civ. P. 30(b)(6) provides in relevant part:

In its notice or subpoena, a party may name as the deponent a

public or private corporation,

. . . a governmental agency, or other

entity and must describe with reasonable particularity the matters

for examination. The named organization must then designate one

or more officers, directors, or managing agents, or designate other

persons who consent to testify on its behalf; and it may set out the

matters on which each person designated will testify.

. . . The

persons designated must testify about information known or

reasonably available to the organization.

30 Reilly v. Natwest Mkts. Grp. Inc.

, 181 F.3d 253, 268 (2d Cir. 1999) (internal

quotation marks omitted). Fed. R. Civ. P. 37(a)(3)(B)(ii) permits a party seeking14 Keepers’ Rule 30(b)(6) notice of deposition listed thirty

‐ one

matters related to the drafting, passage, and enforcement of Chapter

2.3. 31 Most relevant here, the notice identified as a matter for

deposition “[t]he definition and interpretation of any provisions of

Chapter 2.3 which are not specifically defined in that ordinance.” 32

discovery to move for an order compelling designation if “a corporation or other

entity fails to make a designation under Rule 30(b)(6).” If a corporation fails to

comply with such an order, the court may impose the sanctions specified in Rule

37(b)(2)(A), which include

(i) directing that the matters embraced in the order or other

designated facts be taken as established for purposes of the action,

as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing

designated claims or defenses, or from introducing designated

matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order

except an order to submit to a physical or mental examination.

Rule 37(d)(1)(A)(i) provides for similar sanctions if “a person designated under

Rule 30(b)(6)

. . . fails, after being served with proper notice, to appear for that

person’s deposition.” “Instead of or in addition to these sanctions, the court must

require the party failing to act, the attorney advising that party, or both to pay the

reasonable expenses, including attorney’s fees, caused by the failure, unless the

failure was substantially justified or other circumstances make an award of

expenses unjust.” Fed. R. Civ. P. 37(d)(3).

31 App. 161

‐ 66.

32 App. 162.15 Neither Keepers’ complaint nor its notice of deposition identified

which provisions of Chapter 2.3 Keepers believed to be vague, and its

notice did not specifically identify which terms and provisions it

planned to address during the deposition.

The City responded to Keepers’ notice of deposition by

designating its former municipal attorney, Marilyn Lipton, who gave

deposition testimony for Milford on January 8, 2009. At the start of

the deposition, Milford’s attorney stated that, while Lipton had

authority pursuant to Rule 30(b)(6) to testify on Milford’s behalf, she

was “not authorized to contradict the ordinance text.” 33

During her deposition, Lipton was unable to answer various

questions regarding the potential application and interpretation of

Chapter 2.3. 34 She was unable, for instance, to explain whether an

“assistant manager” would fall within the 2007 ordinance’s definition

of someone having an “influential interest” in an SOB; 35 whether the

City could revoke an SOB employee’s license for failing to stop

another employee from “doing something wrong”; 36 and whether

mandated “buffer zones” between dancers and patrons would be

33 App. 172.

34 See Keepers

, 944 F. Supp. 2d at 158 (noting that Keepers identified 33

instances in which Lipton said she was uncertain or unable to answer various

questions).

35 App. 223

36 App. 252

‐ 53.16 measured from “front of body [to] front of body” or based on the

distance between other body parts. 37

In its motion for summary judgment in August 2009, Keepers

identified several provisions of Chapter 2.3 that it argued were

unconstitutionally vague, relying on Lipton’s deposition for

support. 38 In its November 2009 response to Keepers’ motion, Milford

filed an affidavit by Chief of Police Keith Mello (the “Mello

Affidavit”), who was primarily responsible for administering the

ordinance. The Mello Affidavit offered “additional guidelines

regarding the interpretation and enforcement of Chapter 2.3,” 39 with

particular focus on those provisions that Keepers’ motion had

identified as vague. 40

In December 2009, Keepers moved to strike the Mello

Affidavit, arguing that it impermissibly contradicted Lipton’s

deposition testimony. Keepers also moved for discovery sanctions.

The District Court denied Keepers’ motions and relied on the Mello

37 App. 264. Chapter 2.3 requires six

‐ foot “buffer zones” between patrons

and dancers. See § 2.3

‐ 17(b) (2007).

38 Keepers

, 944 F. Supp. 2d at 158 (noting Keepers’ argument that Lipton

“had little to no understanding as to how the words, phrases, and provisions

contained within the ordinance are to be applied and/or enforced” (quoting

Keepers Br. Summ. J., Doc. 51, at 11)).

39 App. 313.

40 Keepers had deposed Mello in January 2009 as an individual witness,

but not pursuant to Rule 30(b)(6). Dep. of Keith Mello, Doc. 55

‐ 3, at 3.17 Affidavit in awarding summary judgment to the City on Keepers’

vagueness challenge. 41 The District Court concluded that “[i]t would

be unfair to ignore” the Mello Affidavit and to rely solely on the

Lipton Deposition, “in which the plaintiffs succeeded in surprising a

deponent not charged with enforcement of the ordinance with

hypotheticals that served to ‘stump’ her.” 42

C. The Appeal

Both parties appealed the District Court’s partial grant and

partial denial of summary judgment. Keepers appealed the denial of

its motion to strike the Mello Affidavit and asked that the case be

remanded for reconsideration of its vagueness challenge. Milford

cross

‐ appealed the District Court’s judgment that the 2007

ordinance’s public

‐ posting requirement violates the First

Amendment with respect to officers and shareholders not involved in

the operation of an SOB.

In an Order entered on October 2, 2015, we identified nostra

sponte two issues not addressed by the parties or the District Court:

whether Keepers has “standing” to challenge the public

‐ posting

requirements; and, if Keepers does have standing, whether the

public

‐ posting requirements violate the First Amendment’s

41 App. 46

‐ 47 (Order of Sept. 28, 2010).

42 Keepers

, 944 F. Supp. 2d at 159.18 prohibition of “compelled speech.” 43 We accordingly asked the

parties to file supplemental letter briefs addressing these questions.

II. DISCUSSION

A. The District Court’s Consideration of the Mello Affidavit

We first address whether the District Court erred in

considering the Mello Affidavit when awarding summary judgment

to Milford with respect to Keepers’ vagueness challenge.

We review a district court’s evidentiary and discovery rulings

for “abuse of discretion.” 44 “A district court has abused its discretion

if it based its ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence, or rendered a decision that

cannot be located within the range of permissible decisions.” 45

On appeal, Keepers challenges the District Court’s decision to

allow Milford to supplement the deposition testimony of its Rule

43 The District Court considered Keepers’ standing with respect to several

of its claims, including its vagueness challenges, id. at 151

‐ 53, First Amendment

overbreadth challenge, id. at 160, and various challenges to Chapter 2.3’s criminal

disability provisions, id. at 162

‐ 63. The District Court did not, however, consider

standing with respect to the public

‐ posting requirement.

44 In re Agent Orange Prod. Liab. Litig.

, 517 F.3d 76, 102 (2d Cir. 2008); Arlio

v. Lively

, 474 F.3d 46, 51 (2d Cir. 2007); see also In re City of New York

, 607 F.3d 923,

943 n.21 (2d Cir. 2010) (explaining that “abuse of discretion” is a nonpejorative

term of art).

45 In re Sims

, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks,

alteration, and citation omitted).19 30(b)(6) witness with an affidavit from another witness. “Because the

deponent’s answers constitute the official testimony of the

governmental entity itself,” Keepers argues, “the government may

not later contradict” the deponent’s testimony “with the affidavit of

another official.” 46 As a result, it asserts, the District Court should

have refused to consider the Mello Affidavit.

Milford offers several counterarguments. First, it argues that

even if a deponent’s factual conclusions bind an organizational

deponent, its legal conclusions do not. Second, Milford asserts that

Keepers’ notice of deposition failed to comply with Rule 30(b)(6)’s

requirement that the deposing party “describe with reasonable

particularity the matters for examination,” and that Milford was

therefore entitled to supplement its deposition testimony on subjects

about which it had received inadequate notice. Finally, Milford

argues that even if the District Court erred in considering the

affidavit, any error was harmless, because the Court would have

reached the same conclusion in any event.

We affirm the District Court’s decision to consider the Mello

Affidavit for two reasons. First, we agree with Milford that a Rule

30(b)(6) deponent may supplement or amend legal interpretations

offered by its designated witness. Second, even if the District Court

“abused its discretion” in considering the Mello Affidavit, any error

was harmless.

46 Keepers Br. 3.20 1. The “Binding” Nature of Rule 30(b)(6) Testimony

Keepers misunderstands how testimony pursuant to Rule

30(b)(6) binds a party. Keepers rightly notes that an organization’s

deposition testimony is “binding” in the sense that whatever its

deponent says can be used against the organization. 47 But Rule

30(b)(6) testimony is not “binding” in the sense that it precludes the

deponent from correcting, explaining, or supplementing its

statements. 48 Nothing in the text of the Rule or in the Advisory

Committee notes indicates that the Rule is meant to bind a corporate

party irrevocably to whatever its designee happens to recollect

during her testimony. 49 Of course, a party whose testimony “evolves”

risks its credibility, but that does not mean it has violated the Federal

Rules of Civil Procedure. 50

Indeed, Keepers itself came to a similar conclusion earlier in

this litigation. During the Lipton Deposition, Milford objected to

questions requiring Lipton to give precise answers based on 2,000

pages of evidence. Its counsel emphasized that if Lipton answered a

question with “I don’t know,” she should be taken to mean, “I don’t

47 See Reilly

, 181 F.3d at 268.

48 See 8A Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 2103 (3d ed. 2015); 7

‐ 30 James Wm. Moore et al., Moore’s Federal

Practice § 30.25 (3d ed. 2015).

49 See A.I. Credit Corp. v. Legion Ins. Co.

, 265 F.3d 630, 637 (7th Cir. 2001).

50 See R & B Appliance Parts, Inc. v. Amana Co.

, 258 F.3d 783, 786

‐ 87 (8th Cir.

2001).21 know without reviewing all 2,000 pages right now,” and that such an

answer should “not preclude the city’s reliance on anything in the

record at summary judgment.” 51 The attorney for Keepers agreed: “I

am sure that if there’s something that is in [the record] that is

responsive to any arguments that we’re going to be making, you will

pull it out in response to our motion for summary judgment.” 52

Accordingly, the parties proceeded under the assumption that

Lipton’s recollection did not limit what evidence Milford could

present.

Although the parties’ exchange focused on Milford’s right to

supply additional facts

, a Rule 30(b)(6) deponent may also amend and

expand its legal conclusions

. Courts have held repeatedly that a party

is “entitled to produce contrary evidence” that contradicts legal

interpretations offered during a deposition. 53 The statements to

which Keepers seeks to bind Milford are primarily interpretations of

law—whether or how Chapter 2.3 applies to various situations—

rather than facts concerning the drafting or history of the ordinance.

The rule that organizational deponents may supplement their Rule

30(b)(6) testimony thus applies with special force in the present case.

51 App. 230.

52 Id.

53 AstenJohnson, Inc. v. Columbia Cas. Co.

, 562 F.3d 213, 229 n.9 (3d Cir.

2009); see R & B Appliance

, 258 F.3d at 786

‐ 87.22 Some deponents will, of course, try to abuse Rule 30(b)(6) by

intentionally offering misleading or incomplete responses, then

seeking to “correct” them by offering new evidence after discovery.

Appropriate remedies are available for such situations. For instance,

as Keepers points out, the “sham

‐ affidavit rule” prevents a party

from manufacturing an issue of fact “by submitting an affidavit in

opposition to a summary judgment motion that, by omission or

addition, contradicts the affiant’s previous deposition testimony.” 54

But that rule has no relevance here. A subsequent witness does not

“contradict” a Rule 30(b)(6) deponent when that witness offers

information about which the deponent had disclaimed knowledge or

expressed uncertainty. 55 With one minor exception, 56 the Mello

Affidavit did not “contradict” Lipton’s earlier testimony but instead

filled in its gaps.

Rule 37 also empowers district courts to correct abuses in the

deposition process. If a deponent fails to satisfy Rule 30(b)(6) by

refusing to designate a witness or producing an unprepared witness,

the court may order sanctions, including the preclusion of evidence. 57

54 Crawford v. Franklin Credit Mgmt. Corp.

, 758 F.3d 473, 482 (2d Cir. 2014)

(internal quotation marks omitted).

55 See id.

56 This exception involved inconsistent legal conclusions about the

meaning of the term “regularly” as it is used in the 2007 ordinance, rather than

contradictory statements of fact. Keepers Br. 8, ¶ 1; App. 197, 313.

57 Reilly

, 181 F.3d at 268; see also Black Horse Lane Assocs. v. Dow Chem. Corp.

,

228 F.3d 275, 304 (3d Cir. 2000) (“[W]e hold that when a witness is designated by a23 But we cannot conclude that such sanctions would be appropriate

here, much less that the District Court “abused its discretion” by

failing to employ them against Milford. 58

Keepers identifies no authority that cuts against these settled

principles. Indeed, the contrast between the instant case and Reilly v.

Natwest Markets Group Inc.

, the principal case on which Keepers

relies, is illuminating. 59 In Reilly

, a corporate defendant was served

with a Rule 30(b)(6) notice asking it to produce representatives

familiar with the work performed by the plaintiff, its former

employee. In response, the defendant produced a single witness,

“despite [the plaintiff’s] complaints that [the witness] was not

sufficiently knowledgeable,” 60 in what was apparently an effort to

frustrate the plaintiff’s discovery. 61 As a result, the district court

refused to allow two other witnesses for the defendant—whom the

defendant had declined to produce for its Rule 30(b)(6) deposition—

to testify on the same subject at trial.

corporate party to speak on its behalf pursuant to Rule 30(b)(6), producing an

unprepared witness is tantamount to a failure to appear that is sanctionable under

Rule 37(d).” (alteration and internal quotation marks omitted)); Kyoei Fire &

Marine Ins

. v. M/V Mar. Antalya

, 248 F.R.D. 126, 152 (S.D.N.Y. 2007) (same).

58 Keepers moved for sanctions before the District Court, but on appeal,

the only “sanction” it seeks is the striking of the affidavit. See Keepers Br. 12.

59 181 F.3d 253 (2d Cir. 1999).

60 Id. at 268.

61 See id. at 268

‐ 69.24 This case differs from Reilly in two important respects. First,

unlike the corporate defendant in Reilly

, Milford produced as its

witness the person it considered to be most familiar with the subject

matter at issue. 62 Although Lipton’s testimony may have been

inadequate, the District Court found that that inadequacy flowed not

from the kind of willful obstruction apparent in Reilly but rather from

Keepers’ decision to “surpris[e]” Lipton 63 with “various hypothetical

scenarios” not identified in the notice of deposition. 64 Second, the

defendant in Reilly wanted to frustrate discovery, but Milford had

every incentive to be as forthcoming as possible in order to defeat

Keepers’ claim of vagueness. Indeed, forcing Lipton to answer “I

don’t know” was precisely what Keepers hoped to achieve. 65

As the District Court recognized, the process by which Milford

ultimately answered Keepers’ questions was not “a route that is to be

preferred.” 66 Ideally—perhaps after receiving more particularized

notice of what Keepers wanted to know—Lipton herself would have

been prepared to offer more precise answers during her deposition. If

Milford believed that Keepers’ Rule 30(b)(6) notice failed to describe

the matters for deposition with adequate particularity, Milford could

62 See Milford Br. 4.

63 Keepers

, 944 F. Supp. 2d at 159.

64 App. 46 (Order of Sept. 28, 2010).

65 See Keepers Br. 8

‐ 11.

66 App. 47 (Order of Sept. 28, 2010).25 have objected prior to the deposition. Alternatively, Keepers might

have requested an additional Rule 30(b)(6) deposition, perhaps of

Mello. But the “management of discovery and trial” belongs “to the

sound discretion of the district court.” 67 We have no trouble

concluding that the District Court did not “abuse” that discretion in

admitting the Mello Affidavit.

2. Harmless Error

Even if the District Court erred by considering the Mello

Affidavit, that error was harmless, because excluding the affidavit

would not have affected the outcome of the case. 68

The District Court considered the Lipton Deposition and Mello

Affidavit in connection with its evaluation of Keepers’ argument that

certain provisions of Chapter 2.3 were unconstitutionally vague. An

ordinance can be unconstitutionally vague “for either of two

independent reasons”: (1) “if it fails to provide people of ordinary

intelligence a reasonable opportunity to understand what conduct it

prohibits,” 69 or (2) if it “does not provide explicit standards for those

who apply it.” 70

67 Willey v. Kirkpatrick

, 801 F.3d 51, 72 (2d Cir. 2015).

68 See Fed. R. Civ. P. 61; Shinseki v. Sanders

, 556 U.S. 396, 407 (2009).

69 VIP of Berlin, LLC v. Town of Berlin

, 593 F.3d 179, 186 (2d Cir. 2010)

(quoting Hill v. Colorado

, 530 U.S. 703, 732 (2000)).

70 Id. at 191 (internal quotation marks and alteration omitted).26 As the District Court noted, a court evaluating a challenge for

vagueness must “begin[ ] with the text of the ordinance” itself. 71

Based on its reading of Chapter 2.3—without relying on the Lipton

Deposition or the Mello Affidavit—the District Court concluded

“that the ordinance here is clear on its face” and thus satisfied the

first prong of the vagueness analysis. 72

In evaluating the second prong, the District Court again

focused, as it should have, primarily on the ordinance’s plain

meaning. The Court also considered whether Milford officials

interpreted Chapter 2.3 in a manner “consistent with” its text. 73 The

Court concluded that the ordinance itself gave sufficiently clear

guidance and that the officials charged with enforcing the ordinance

had adopted an interpretation consistent with its text. 74 Accordingly,

the Court concluded that Chapter 2.3 also satisfied the second prong

of the vagueness analysis.

The Court’s findings would not have changed had the Court

excluded the Mello Affidavit. The Court concluded that the

ordinance was clear on its face without relying on any extrinsic

evidence at all. Had the Court relied solely on the Lipton Deposition

in deciding whether the ordinance gave sufficient guidance to law

71 Id. at 187; see Keepers

, 944 F. Supp. 2d at 151.

72 Keepers

, 944 F. Supp. 2d at 158.

73 See VIP of Berlin

, 593 F.3d at 192.

74 Keepers

, 944 F. Supp. 2d at 158

‐ 59.27 enforcement, the most the Court could have concluded was that

Milford lacked an “official position” on how to apply several

provisions of Chapter 2.3 to various hypothetical situations. 75 But

that conclusion alone would not have supported a finding of

vagueness. When the text of an ordinance is sufficiently clear to

satisfy the Due Process Clause, a municipal official’s inability to

supply precise answers regarding its hypothetical application is

insufficient to render that ordinance unconstitutionally vague. 76 The

Mello Affidavit thus had no effect on the District Court’s ultimate

conclusion. Accordingly, the judgment of the District Court in favor

of Milford with respect to Keepers’ vagueness challenge is

AFFIRMED

.

B. The Public

‐ Posting Requirement

We now turn to whether Milford’s public

‐ posting

requirements violate the First Amendment. Keepers does not appeal

the District Court’s judgment insofar as it upheld the 2003 public

‐

posting requirement and part of the 2007 requirement. Milford,

however, urges us to reverse the District Court’s judgment insofar as

it invalidated part of the 2007 ordinance. Milford argues that the

District Court erred in assuming that mere ownership of an SOB is

expressive conduct protected by the First Amendment. It argues in

the alternative that even if owning an SOB qualifies as expressive

75 Id. at 158.

76 See VIP of Berlin

, 593 F.3d at 191.28 conduct, the posting requirement should nevertheless survive

because it is narrowly tailored and advances an important

governmental interest.

We need not—indeed, we cannot—resolve either issue today.

Undertaking our constitutional duty to assure ourselves that this case

is justiciable, we have determined that three distinct jurisdictional

barriers preclude Keepers from challenging the public

‐ posting

requirements. We conclude that Keepers lacked both (1) prudential

and (2) constitutional standing to challenge the public

‐ posting

requirements based on third parties’ rights to anonymous expression,

and (3) even if Keepers had standing below based on its right against

compelled speech, a justiciable controversy no longer exists at this

stage of the litigation. 77 Accordingly, we VACATE the judgment of

the District Court with respect to the 2003 and 2007 public

‐ posting

requirements and REMAND with instructions to dismiss Keepers’

challenge to those requirements for lack of subject matter jurisdiction.

1. Whose First Amendment Rights Are at Stake?

Article III of the U.S. Constitution limits the jurisdiction of

federal courts to “Cases” or “Controversies.” 78 “One element of the

77 Courts may consider prudential standing, constitutional standing, and

mootness in any order. See Arizonans for Official English v. Arizona

, 520 U.S. 43, 66

(1997); Hillside Metro Assocs., LLC v. JPMorgan Chase Bank, Nat’l Ass ʹ n

, 747 F.3d 44,

48 (2d Cir. 2014), cert. denied

, 135 S. Ct. 1399 (2015).

78 U.S. Const. art. III, § 2 (“The judicial Power [of the United States] shall

extend to all Cases, in Law and Equity, arising under this Constitution, the Laws29 case

‐ or

‐ controversy requirement is that plaintiffs must establish that

they have standing to sue.” 79 To establish constitutional standing, a

plaintiff must demonstrate (1) that it has “suffered an injury in fact,”

which is (2) “fairly traceable to the challenged action of the

defendant,” and (3) “likely” to “be redressed by a favorable

decision.” 80 In addition to these core constitutional requirements,

litigants must also satisfy “prudential standing,” which “embodies

‘judicially self

‐ imposed limits on the exercise of federal

jurisdiction.’” 81 Prudential standing includes, inter alia

, “the general

prohibition on a litigant’s raising another person’s legal rights” and

“the rule barring adjudication of generalized grievances more

appropriately addressed in the representative branches [of

government].” 82 “The party invoking federal jurisdiction bears the

of the United States, and Treaties made, or which shall be made, under their

Authority;—to all Cases affecting Ambassadors, other public Ministers and

Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies

to which the United States shall be a Party;—to Controversies between two or

more States;— between a State and Citizens of another State,—between Citizens

of different States,—between Citizens of the same State claiming Lands under

Grants of different States, and between a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.”); see Clapper v. Amnesty Int’l USA

, 133 S. Ct. 1138,

1146 (2013).

79 Clapper

, 133 S. Ct. at 1146 (internal quotation marks omitted).

80 Hedges v. Obama

, 724 F.3d 170, 188 (2d Cir. 2013) (quoting Lujan v.

Defenders of Wildlife

, 504 U.S. 555, 560

‐ 61 (1992)).

81 Selevan v. N.Y. Thruway Auth.

, 584 F.3d 82, 91 (2d Cir. 2009) (quoting Elk

Grove Unified Sch. Dist. v. Newdow

, 542 U.S. 1, 11 (2004), abrogated on other grounds

by Lexmark Int’l, Inc. v. Static Control Components, Inc.

, 134 S. Ct. 1377 (2014)).30 burden of establishing” prudential and constitutional standing, 83 but

courts may raise the issue sua sponte

, including for the first time on

appeal. 84

One purpose of standing doctrine is to ensure that “the

plaintiff at issue is the appropriate plaintiff to bring a claim.” 85 It

matters, in other words, whose rights a plaintiff asserts. The District

Court assumed that the plaintiffs before it—a corporation and a

limited liability company—were asserting “ their First Amendment

right to engage in speech anonymously.” 86 But that would have been

an odd claim indeed for a business like Keepers, which markets its

services to “the consenting adult public .” 87 Corporations sometimes

seek to hide their identities, 88 but not usually from their patrons.

A closer examination of Keepers’ filings reveals that the

company has asserted not its own right to remain anonymous but

82 Elk Grove

, 542 U.S. at 12 (internal quotation marks omitted).

83 See Lujan

, 504 U.S. at 561; Rajamin v. Deutsche Bank Nat’l Tr. Co.

, 757 F.3d

79, 84 (2d Cir. 2014).

84 Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck

‐ Medco

Managed Care, L.L.C.

, 433 F.3d 181, 198 (2d Cir. 2005).

85 Lerner v. Fleet Bank, N.A.

, 318 F.3d 113, 126 (2d Cir. 2003).

86 Keepers

, 944 F. Supp. 2d at 172 (emphasis supplied).

87 Id. at 151 (emphasis supplied) (internal quotation marks omitted).

88 See Citizens United v. Fed. Election Comm ʹ n

, 558 U.S. 310, 366

‐ 67 (2010)

(describing a corporation’s challenge to a disclosure requirement).31 that of its officers, shareholders, and other third parties. Before the

District Court, for instance, Keepers argued that Milford’s public

‐

posting requirements “impermissibly and severely infringe upon the

owners’

, employees’ and entertainers’ right to anonymity while

engaging in expressive activities.” 89 In its appellate brief, Keepers

again stresses the right of “[ o ] wners of adult businesses” “to fund

sexually explicit expression” anonymously. 90 Throughout its

argument, Keepers refers either to an impersonal “right to

anonymous free expression” or, more often, to the rights of

“[p]assive [o]wners,” 91 “shareholders,” and “officers.” 92 Keepers’

brief even converts the District Court’s focus on Keepers ’

constitutional rights into a holding about the rights of “ partial owners

of sexually oriented businesses.” 93 In short, Keepers has consistently

asserted not its own right to anonymous expression—which would

make little sense for a business that markets its services to the

public—but the rights of third parties. 94

89 Keepers Br. Summ. J., Doc. 51, at 61 (emphasis supplied).

90 Keepers Reply Br. 8 (emphasis supplied)

91 Id.

92 Id. at 10.

93 Id

. at 11 (emphasis supplied); cf. Keepers

, 944 F. Supp. 2d at 172.

Similarly, Keepers describes the City as arguing against the right of “business

owners, officers, and stakeholders” to “engage in anonymous expression

. . . by

maintaining an ownership interest in an adult business.” Keepers Reply Br. 8.

94 In its supplemental brief, Keepers asserts for the first time that it

challenges the public

‐ posting requirements “on both its own behalf and on behalf32 Therefore, to the extent that Keepers challenges the public

‐

posting requirements based on a First Amendment right of

anonymous expression, its challenge hinges on Keepers’

constitutional and prudential standing to assert the rights of its

owners and officers. Corporations, like other organizations,

sometimes have standing to assert the rights of third parties. 95 But

because a “corporation is a distinct legal entity” from its shareholders

of” affected third parties. Keepers Supp. Br. 2. But even in that brief, Keepers

nowhere asserts its own right to anonymous expression

, relying instead on its right to

sue on behalf of its owners and officers or on other rights—distinct from

anonymity—allegedly possessed by Keepers itself.

95 See note 107, post

. A corporation’s standing to assert the rights of third

parties should not be confused with its standing to assert claims on its own behalf,

even though those claims may ultimately benefit its owners, officers, or

employees. See Mid

‐ Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp.

,

418 F.3d 168, 174 (2d Cir. 2005) (Sotomayor, J.); cf. Burwell v. Hobby Lobby Stores,

Inc.

, 134 S. Ct. 2751, 2768 (2014) (“An established body of law specifies the rights

and obligations of the people (including shareholders, officers, and employees)

who are associated with a corporation in one way or another. When rights,

whether constitutional or statutory, are extended to corporations, the purpose is

to protect the rights of these people.” (emphasis in original)); Doctor John ʹ s, Inc. v.

City of Roy

, 465 F.3d 1150, 1156 (10th Cir. 2006) (finding that a sexually oriented

business had standing to challenge an ordinance that directly harmed the

business itself).33 and officers, 96 courts are not permitted to simply assume its standing

to assert the rights of those third parties. 97

2. Prudential Standing

We begin by considering the “prudential standing rule” that

“normally bars litigants from asserting the rights or legal interests of

others in order to obtain relief from injury to themselves.” 98

Keepers argues that prudential standing concerns are

irrelevant here because “[c]ourts have generally dispensed with the

rule that a party [must] assert its own legal rights and not the rights

of third parties when First Amendment free speech rights are at

stake.” 99 Keepers misunderstands the nature of that dispensation.

Courts have relaxed prudential standing requirements to permit

96 Daimler AG v. Bauman

, 134 S. Ct. 746, 759 n.13 (2014) (internal quotation

marks omitted); see also Dole Food Co. v. Patrickson

, 538 U.S. 468, 474 (2003) (“A

basic tenet of American corporate law is that the corporation and its shareholders

are distinct entities.”).

97 See Mid

‐ Hudson Catskill Rural Migrant Ministry

, 418 F.3d at 174

(indicating that plaintiffs bear the burden of demonstrating third

‐ party standing).

Keepers cites Genusa v. City of Peoria

, 619 F.2d 1203, 1216 (7th Cir. 1980), for

the proposition that a “corporation

. . . ha[s] standing to challenge disclosure

requirements that applied to officers, directors, and stockholders of a corporate

licensing applicant.” Keepers Supp. Br. 3. Genusa

, however, involved a suit

brought by “owners of and employees in” a sexually oriented business, not by the

business itself. See Genusa

, 619 F.2d at 1208.

98 Rajamin

, 757 F.3d at 86 (quoting Warth v. Seldin, 422 U.S. 490, 509 (1975)).

99 See Keepers Supp. Br. 3.34 challenges based on First Amendment overbreadth

. 100 Keepers,

however, has not advanced such a challenge here. Although Keepers’

supplemental brief repeatedly characterizes its claim as one of

“overbreadth,” that word appears neither in its principal brief nor in

the section of its summary judgment brief that addresses the public

‐

posting requirement. 101

Keepers previously omitted mentioning overbreadth for a

good reason: it has based its challenge on the “[q]uite different” basis

of third

‐ party (or jus tertii ) standing

. 102 In an overbreadth challenge, a

plaintiff “claims that although a statute did not violate his or her First

100 See, e.g.

, Sec ʹ y of State of Md. v. Joseph H. Munson Co.

, 467 U.S. 947, 957

‐ 58

(1984); Broadrick v. Oklahoma

, 413 U.S. 601, 612 (1973).

101 In contrast, Keepers attacked as overbroad the prohibition on minors’

entering SOBs, Keepers Br. Summ. J., Doc. 51, at 40

‐ 43; the requirement of a

“buffer zone” between customers and “semi

‐ nude” “employees,” id. at 51

‐ 52, and

the “no

‐ touch” provision, id. at 57.

Although the District Court referred to the 2007 ordinance as

“unconstitutionally broad,” context shows that the Court was referring to the

absence of “a substantial relationship between [Milford’s asserted] governmental

interest and the information required to be posted”— i.e.

, the ordinance’s failure to

satisfy intermediate scrutiny—and not to the constitutional doctrine of

overbreadth as relevant for standing purposes. See Keepers

, 944 F. Supp. 2d at 174.

As noted above, the District Court never considered Keepers’ standing to

challenge the public

‐ posting requirements; Keepers had not advanced an

overbreadth argument; and the District Court invoked none of the typical

overbreadth standards or doctrines in reaching its decision, see Milford Br. 36

‐ 37.

102 See Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L.

Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 164 (7th ed.

2015) (internal quotation marks omitted) (“ Hart & Wechsler ”).35 Amendment rights, it would violate the First Amendment rights of

hypothetical third parties if applied to them.” 103 In contrast, a case

based on third

‐ party standing involves a plaintiff’s claim “that a

single application of a law both injures him and impinges upon the

constitutional rights of third persons.” 104 Keepers’ challenge is plainly

of the latter variety. 105

“Typically, a plaintiff who asserts the claims of a third party

can obtain standing by establishing (1) a close relationship to the

injured party and (2) a barrier to the injured party’s ability to assert

its own interests.” 106 Even if we assume that Keepers and the relevant

third parties have a sufficiently close relationship to satisfy the first

prong of this test, 107 Keepers has not shown, or even alleged, that its

103 Farrell v. Burke

, 449 F.3d 470, 498 (2d Cir. 2006).

104 Hart & Wechsler 164 (internal quotation marks omitted).

105 See, e.g.

, Keepers Supp. Br. 2 (“The Milford ordinance therefore injures

Keepers directly

. . . .”).

106 Smith v. Hogan

, 794 F.3d 249, 255 (2d Cir. 2015) (internal quotation

marks omitted).

107 See, e.g.

, Int’l Harvester Co. v. Wisc. Dep’t of Taxation

, 322 U.S. 435, 440

(1944) (finding that a corporation had standing to present its stockholders’

constitutional objections to a tax); Commack Self

‐ Serv. Kosher Meats, Inc. v. Hooker

,

680 F.3d 194, 200 (2d Cir. 2012) (allowing a kosher delicatessen and butcher shop

to join with its “shareholders, directors, and officers” in asserting free exercise

claims); Stormans, Inc. v. Selecky

, 586 F.3d 1109, 1120 (9th Cir. 2009) (holding that a

corporation has standing to assert the free exercise rights of its owners); United

States v. Westinghouse Elec. Corp.

, 638 F.2d 570, 574 (3d Cir. 1980) (finding that an

employer has standing to assert the privacy interests of its employees). But see

Polaroid Corp. v. Disney

, 862 F.2d 987, 1000 & n.8 (3d Cir. 1988) (finding that a36 owners and officers would have any difficulty asserting their own

interests. As a result, it has failed to offer any reason for us to lift the

prudential bar against asserting the rights of others.

In reaching this conclusion, we emphasize the limited nature of

our holding, which reflects the absence of any suggestion in the briefs

or the record that Keepers’ owners or officers would face any

difficulty in defending their own interests. We recognize that

litigants seeking to protect their anonymity may have strong reasons

for suing through a third

‐ party organization rather than in their own

names. 108 But those reasons do not apply here. Keepers’ owners and

officers have already identified themselves publicly during the

course of this litigation, and we have seen no evidence that they

would face “threats, harassment, or reprisals” from bringing a case in

their own names. 109 On the present record, then, Keepers has offered

no reason to depart from the normal rule that a litigant must assert

its own rights, not those of a third party.

corporation lacks third

‐ party standing to challenge a tender offer on behalf of its

shareholders).

108 See NAACP v. Alabama ex rel. Patterson

, 357 U.S. 449, 459 (1958) (noting

that requiring a litigant to defend her own right to anonymity would “result in

nullification of the right at the very moment of its assertion”).

109 See John Doe No. 1 v. Reed

, 561 U.S. 186, 201 (2010) (internal quotation

marks omitted).37 3. Constitutional Standing

Even if we had reason to relax the prudential requirements of

third

‐ party standing, Keepers would still lack constitutional

standing, because it has not satisfied Article III’s injury

‐ in

‐ fact

requirement.

A litigant may assert the rights of others only if the litigant

itself satisfies Article III’s requirements of injury

‐ in

‐ fact, causation,

and redressability. 110 The injury

‐ in

‐ fact requirement demands not

only the existence of a legally cognizable injury, but also that the

plaintiff itself be “among the injured.” 111 In addition, “a plaintiff must

demonstrate standing for each claim he seeks to press and for each

form of relief that is sought.” 112 In other words, Keepers’ undisputed

standing to challenge Chapter 2.3 based on vagueness does not

confer standing to challenge the public

‐ posting requirements based

on its officers’ and owners’ rights of anonymous expression. 113

110 See Port Washington Teachers’ Ass’n v. Bd. of Educ. of Port Washington

Union Free Sch. Dist.

, 478 F.3d 494, 498 (2d Cir. 2007); see also Hedges

, 724 F.3d at

204 (noting that a plaintiff who challenges a law based on First Amendment

overbreadth must still demonstrate that it suffered an injury

‐ in

‐ fact sufficient for

Article III standing).

111 Lujan

, 504 U.S. at 563 (internal quotation marks omitted).

112 Davis v. Fed. Election Comm ʹ n

, 554 U.S. 724, 734 (2008) (internal quotation

marks omitted).

113 Neither does its standing to challenge the public

‐ posting requirement as

a violation of its right against compelled speech, a subject we address in Section

II.B.4, post

.38 In its motion for summary judgment, Keepers alleged several

ways in which Milford’s ordinances have harmed its constitutional

and economic interests. But neither in its appellate briefs nor before

the District Court has Keepers explained how the alleged

infringement of its officers’ and owners’ anonymity rights has caused

it any harm. The closest it comes to doing so is through its suggestion

that the public

‐ posting requirements might “chill” Keepers’

expression. 114 But “purely conjectural” assertions of a potential

“chill” are insufficient, 115 and Keepers offers no “objective evidence to

substantiate [its] claim that the challenged regulation has deterred [it]

from engaging in protected activity.” 116

Nor is Keepers able to claim constitutional standing based on

its assertion that the public

‐ posting requirement “injures Keepers

directly by requiring it to participate in violating its owners’ right of

privacy.” 117 Even if Keepers’ statement were factually true, 118 it

114 See Keepers Br. Summ. J., Doc. 51, at 59, 62; see also Keepers Supp. Br. 2

(“The injury Keepers seeks to redress on its own behalf is the chilling effect on

corporate expression that is exerted by the requirement that the individuals who

own the business be publicly outed.”).

115 Int ʹ l Action Ctr. v. City of New York

, 587 F.3d 521, 529 (2d Cir. 2009); see

also Latino Officers Ass ʹ n v. Safir

, 170 F.3d 167, 170 (2d Cir. 1999) (“Allegations of a

subjective chill of First Amendment rights are not an adequate substitute for a

claim of specific present objective harm or a threat of specific future harm.”

(internal quotation marks and alteration omitted)).

116 Latino Officers Ass ʹ n

, 170 F.3d at 170 (internal quotation marks and

alteration omitted).

117 Keepers Supp. Br. 2.39 would fail to give Keepers the kind of “particularized stake in the

litigation” needed to satisfy Article III. 119 Keepers asserts, in essence,

that it is especially offended by Milford’s alleged violation of the First

Amendment. But mere discomfort occasioned by an asserted

constitutional violation, no matter how sharply felt, is insufficient to

confer standing. 120

It is not difficult to imagine situations in which a burden on the

First Amendment rights of a firm’s owners, officers, or employees

might generate a legally cognizable injury to the firm itself. 121

Standing, however, “cannot be inferred, but must affirmatively

appear in the record,” 122 and it is Keepers’ burden to demonstrate

118 As we discuss in Section II.B.4, post

, that part of Chapter 2.3 at issue on

appeal has no demonstrated effect on the anonymity of any individual.

119 Lance v. Coffman

, 549 U.S. 437, 442 (2007).

120 See Valley Forge Christian Coll. v. Americans United for Separation of Church

& State, Inc.

, 454 U.S. 464, 485

‐ 86 (1982) (“[S]tanding is not measured by the

intensity of the litigant’s interest or the fervor of his advocacy.”); cf. Linda R.S. v.

Richard D

., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially

cognizable interest in the prosecution or nonprosecution of another.”); Dunnet Bay

Const. Co. v. Borggren

, 799 F.3d 676, 693

‐ 94 (7th Cir. 2015) (finding no standing

based on the plaintiff’s allegedly being “forced to participate in a discriminatory

scheme”); Thomas v. Mundell

, 572 F.3d 756, 761 (9th Cir. 2009) (“[A] public official ʹ s

personal dilemma in performing official duties that he perceives to be

unconstitutional does not generate standing.” (internal quotation marks omitted)).

121 See note 107, ante

.

122 Gully v. Nat’l Credit Union Admin. Bd.

, 341 F.3d 155, 161 (2d Cir. 2003)

(internal quotation marks omitted).40 that the alleged infringement of third parties’ constitutional rights

has injured Keepers itself. 123 Keepers has not met that burden here.

4. Mootness on Appeal

In its supplemental brief, Keepers argues for the first time in

this litigation that the public

‐ posting requirement violates its First

Amendment “right to be free from government

‐ compelled

expression.” 124 According to Keepers, even if it lacked standing

below to pursue a claim based on the right to anonymous expression,

we can nonetheless uphold the District Court’s judgment on this

alternative ground. Assuming arguendo that Keepers did not forfeit

this argument by failing to present it below or in its principal brief, 125

mootness precludes us from considering it. 126

123 See Rajamin

, 757 F.3d at 84

‐ 85.

124 Keepers Supp. Br. 4.

125 In general, we do not address on appeal issues not sufficiently raised in

a party’s principal brief. See Norton v. Sam ʹ s Club

, 145 F.3d 114, 117

‐ 18 (2d Cir.

1998). Nonetheless, we may affirm a district court “on any basis supported by the

record, even one not relied on by the lower court,” and “[a]lthough it behooves

appellees to raise all their defenses on appeal

. . . we are not aware of any case

requiring them to do so.” Universal Church v. Geltzer

, 463 F.3d 218, 229 (2d Cir.

2006); cf. Int ʹ l Trade Admin. v. Rensselaer Polytechnic Inst

., 936 F.2d 744, 747 (2d Cir.

1991) (“[A] party need not cross

‐ appeal in order to assert an alternate ground

based on the record to support a district court decree.”).

126 Mootness would also preclude us from considering Keepers’ appeal

with respect to anonymous expression, if we had not already disposed of that

appeal on standing grounds. See note 77, ante ( noting that courts may address

standing and mootness in either order).41 “The case

‐ or

‐ controversy requirement subsists through all

stages of federal judicial proceedings, trial and appellate.” 127 A

dispute that is live when suit is filed remains so only for as long as

the parties continue to have a “concrete stake in the outcome.” 128

There is “no case or controversy, and a suit becomes moot,” when the

parties cease to have “a legally cognizable interest in the outcome” of

the case. 129

When this litigation started, the alleged injury and the nature

of the dispute would have been clear: Chapter 2.3 required Keepers

to post names that it did not want to post. As a result, the

requirement potentially implicated the right of Keepers’ owners and

officers to express themselves anonymously, as well as Keepers’ own

First Amendment right against compelled speech. At this stage of the

litigation, however, that injury has disappeared.

The 2007 ordinance requires an SOB to post publicly the names

of individuals who (1) have “actual power” to operate the business or

control its “operation, management or policies”; (2) own at least

thirty percent of the business; or (3) are officers of a legal entity that

operates the business. 130 The District Court upheld this requirement

127 Chafin v. Chafin

, 133 S. Ct. 1017, 1023 (2013) (internal quotation marks

omitted).

128 See City of Erie v. Pap’s A.M.

, 529 U.S. 277, 288 (2000).

129 Chafin

, 133 S. Ct. at 1023 (internal quotation marks omitted).

130 § 2.3

‐ 2 (2007).42 except as it applies to individuals who “do not manage, operate or

control the sexually oriented business.” 131 Because Keepers does not

appeal that decision, 132 the only posting

‐ related issue before this

Court is the 2007 ordinance’s requirement that SOBs post the names

of “[p]assive [o]wners” and officers. 133 In other words, what is at

stake in this appeal is whether Keepers must display the names of

those individuals who fall within the scope of the 2007 ordinance’s

public

‐ posting requirement but “do not manage, operate or control”

the business. 134 We have seen no evidence that such persons exist.

The record indicates that Keepers has no passive shareholders, but

only a single owner, Angela Silano, who also serves as the company’s

president and, as far as the record indicates, sole officer. 135 Therefore,

Keepers will have to display Silano’s name—regardless of the

outcome of this appeal—under that part of the 2007 ordinance which

the District Court upheld and which Keepers no longer challenges. 136

131 Keepers

, 944 F. Supp. 2d at 174.

132 See Keepers Reply Br. 12.

133 Id. at 8.

134 Keepers

, 944 F. Supp. 2d at 174.

135 See Regensberger Affidavit, Doc. 52

‐ 6; Silano Affidavit, Doc. 52

‐ 7.

136 As president and sole owner, Silano undoubtedly has power to, and

does, “operate” or “control” Keepers. See § 2.3

‐ 2 (2007); see also Keepers

, 944 F.

Supp. 2d at 174.43 That part of the 2007 public

‐ posting requirement invalidated by the

District Court has no effect on Silano’s anonymity, and Keepers has

identified no other shareholders or officers whose anonymity might

be implicated. As a result, we can identify no individual whose

anonymity is potentially at stake in this appeal, nor will this appeal

affect what information Keepers itself would be compelled to

display. 137

In short, this appeal is moot, both with respect to Keepers’

third

‐ party anonymity claim and its compelled

‐ speech claim.

Although Milford has a stake in defending the constitutionality of its

ordinance, Keepers no longer has any concrete interest in the result of

this appeal. As a result, this case now lacks “that concrete

We note that Silano would also have been required to post her name

under the 2003 ordinance—if Milford had not repealed it—as an “officer or

partner” of Keepers, since Silano is the only officer who appears in the record. See

§ 2.3

‐ 5 (2003).

137 In its supplemental brief, Keepers asserts for the first time that the

current “president, secretary, and director of Keepers, Inc.” is not Silano but Julia

Kish. Keepers Supp. Br. 4. As noted above, this assertion is irrelevant to our

decision. Even if we were to relax our normal rule against considering new facts

on appeal, see note 14, ante

, Keepers has merely identified another third party who

already lacks anonymity, not only because of this litigation, but because her name

is already associated with Keepers on the website of the Connecticut Secretary of

State. See Keepers Supp. Br. 4. Moreover, as “president, secretary, and director,”

Kish would have to include her name on Keepers’ license as a person with “actual

power to operate the sexually oriented business” or to control its operation. See

§§ 2.3

‐ 2; 2.3

‐ 4(d) (2007). Keepers’ supplemental brief did not identify any other

shareholder or officer, besides Kish, whose anonymity might be implicated.44 adverseness which sharpens the presentation of issues,” 138 and which

is necessary for a case to remain “fit for federal

‐ court adjudication.” 139

5. Summary and Disposition of Keepers’ Challenge to the Public

‐

Posting Requirements

We hold that Keepers lacks prudential and constitutional

standing to challenge the public

‐ posting requirements based on its

owners’ and officers’ right of anonymous expression. We therefore

VACATE the District Court’s judgment insofar as it reached the

merits of this challenge and REMAND with direction to dismiss that

claim. Insofar as Keepers urges us to uphold the judgment based on

its own right against compelled speech, we find the appeal moot and

DISMISS it accordingly.

III. CONCLUSION

To summarize, we hold as follows:

(1) The District Court did not “abuse its discretion” in

considering the Mello Affidavit; and even if the District

Court did err, its error was harmless, because it had no

effect on the Court’s resolution of Keepers’ vagueness

challenge.

138 See Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011) (quoting Los Angeles v.

Lyons

, 461 U.S. 95, 101 (1983)).

139 Id. (quoting Arizonans for Official English

, 520 U.S. at 67).45 (2) We do not reach the merits of Keepers’ First Amendment

challenge to the public

‐ posting requirements, because

neither this Court nor the District Court has subject

‐ matter

jurisdiction to consider the issue.

a. Keepers challenged the public

‐ posting requirement

based on an asserted “First Amendment right to

anonymous expression,” but the anonymity at stake

is that of Keepers’ owners and officers, not that of

Keepers itself.

b. The doctrine of “prudential standing” generally bars

litigants from asserting the rights of third parties.

Keepers has failed to show why we should permit it

to assert the rights of its owners and officers in the

present case.

c. Article III of the U.S. Constitution does not permit a

plaintiff to sue unless it has suffered a legally

cognizable injury. Keepers has failed to show that the

public

‐ posting requirement has injured the

corporation itself—as opposed to its officers, owners,

or related third parties.

d. Even if Keepers originally had standing to challenge

the public

‐ posting requirement in the District Court

based on its asserted right against compelled speech,

the case has become moot on appeal. Based on the

record before us, Keepers’ president and sole owner46 will be required to list her name on Keepers’ posted

license, regardless of who prevails before this Court.

We therefore lack jurisdiction to decide this appeal on

the merits.

For the foregoing reasons, we AFFIRM the District Court’s

March 30, 2013 judgment insofar as it denied Keepers’ motion to

exclude the Mello Affidavit. We also VACATE that part of the March

30, 2013 judgment concerning plaintiff’s First Amendment challenge

to the public

‐ posting requirements and REMAND to the District

Court with direction to dismiss that claim for lack of subject

‐ matter

jurisdiction. Insofar as Keepers urges us to uphold the judgment

based on its own claimed right against compelled speech, we

DISMISS the appeal as moot.