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Italian Colors Et Al V Becarra 9th Circuit 2018 15-15873
Italian Colors Et Al V Becarra 9th Circuit 2018 15-15873
v.
SUMMARY **
Civil Rights
The panel first held that it was satisfied that plaintiffs had
modified their speech and behavior based on a credible
*
The Honorable Sarah S. Vance, United States District Judge for
the Eastern District of Louisiana, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ITALIAN COLORS RESTAURANT V. BECERRA 3
COUNSEL
OPINION
I. BACKGROUND
A. Factual Background
B. Statutory Background
price”: the posted price if only one price was posted, or the
credit card price if either no price was posted or both a credit
card price and a cash price were posted. Id. § 102(a)
(codified at 15 U.S.C. § 1602(y)). This definition effectively
limited the scope of the surcharge ban to only “posting a
single price and charging credit card users more than that
posted price.” Expressions Hair Design v. Schneiderman
(Expressions III), 137 S. Ct. 1144, 1147 (2017).
C. Procedural History
1
Kamala Harris was the California Attorney General when the
lawsuit was filed. After Harris was elected to the United States Senate,
Xavier Becerra replaced Harris as Attorney General.
2
Plaintiffs amended their complaint to add Stonecrest and Leon’s
Transmission, and their respective owners, as plaintiffs on April 1, 2014.
10 ITALIAN COLORS RESTAURANT V. BECERRA
II. DISCUSSION
A. Standard of Review
B. Standing
Bowen, 709 F.3d 867, 870 (9th Cir. 2013) (“[A] chilling of
the exercise of First Amendment rights is, itself, a
constitutionally sufficient injury.”).
3
Indeed, Ebrahimian states that Laurelwood charged additional fees
for credit card users in the 1990s before learning of California’s
surcharge ban.
ITALIAN COLORS RESTAURANT V. BECERRA 17
4
Plaintiffs stated in a summary judgment brief that they were
“simply requesting the same relief granted by Judge Rakoff in
Expressions.” Judge Rakoff enjoined New York’s enforcement of the
law only against the plaintiffs in that case. See Stipulated Final Judgment
and Permanent Injunction, Expressions I, 975 F. Supp. 2d 430 (No. 13-
3775), 2013 WL 7203883, at *2 (“[T]he Court permanently enjoins the
defendants from enforcing New York General Business Law § 518
against the plaintiffs.” (emphasis added)).
ITALIAN COLORS RESTAURANT V. BECERRA 19
5
Although New York’s law does not explicitly permit discounts, the
law has been interpreted to allow them. See Expressions I, 975 F. Supp.
2d at 436.
20 ITALIAN COLORS RESTAURANT V. BECERRA
6
Two other circuits have weighed in on whether surcharge bans
implicate the First Amendment. In Rowell v. Pettijohn, 816 F.3d 73 (5th
Cir. 2016), the Fifth Circuit held that Texas’s surcharge law did not
regulate speech, while in Dana’s Railroad Supply v. Attorney General,
Florida, 807 F.3d 1235, 1239 (11th Cir. 2015), the Eleventh Circuit held
that Florida’s ban did. The Supreme Court vacated the Fifth Circuit’s
decision, Rowell v. Pettijohn, 137 S. Ct. 1431 (2017), and denied
certiorari in the Florida case, Bondi v. Dana’s R.R. Supply, 137 S. Ct.
1452 (2017).
ITALIAN COLORS RESTAURANT V. BECERRA 21
III. CONCLUSION
7
Because plaintiffs’ as-applied challenge is successful on First
Amendment grounds, we need not reach their vagueness challenge to
accord them the relief they seek. Moreover, counsel stated at oral
argument that plaintiffs no longer press their vagueness challenge. We
therefore do not reach the vagueness issue.