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Expressions Hair Design v. Schneiderman

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Docket No. Op. Below Argument Opinion Vote Author Term
15-1391 2d Cir. Jan 10, 2017 Mar 29, 2017 8-0 Roberts OT 2016

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Retail Litigation Center, et al., in support of the petitioners in this case.

Holding: (1) The Supreme Court's review is limited to whether New York General Business Law Section 518 is unconstitutional as applied to the particular pricing scheme that, before this court, petitioners, five New York businesses and their owners, have argued they seek to employ: a single-sticker regime, in which merchants post a cash price and an additional credit card surcharge; (2) Section 518 prohibits the pricing regime petitioners wish to employ; (3) In regulating the communication of prices rather than prices themselves, Section 518 regulates speech. On remand the court of appeals should determine whether Section 518 survives First Amendment scrutiny as a speech regulation; and (4) Section 518 is not vague as applied to petitioners.

Judgment: Vacated and remanded, 8-0, in an opinion by Chief Justice Roberts on March 29, 2017. Justice Breyer filed an opinion concurring in the judgment. Justice Sotomayor filed an opinion concurring in the judgment, in which Justice Alito joined.

SCOTUSblog Coverage

DateProceedings and Orders (key to color coding)
Apr 1 2016Application (15A1020) to extend the time to file a petition for a writ of certiorari from April 12, 2016 to May 12, 2016, submitted to Justice Ginsburg.
Apr 5 2016Application (15A1020) granted by Justice Ginsburg extending the time to file until May 12, 2016.
May 12 2016Petition for a writ of certiorari filed. (Response due June 15, 2016)
May 24 2016Order extending time to file response to petition to and including August 1, 2016, for all respondents.
Jun 7 2016Brief amicus curiae of Marion B. Brechner First Amendment Project filed.
Jun 15 2016Brief amici curiae of Albertsons LLC, et al. filed.
Jun 15 2016Brief amici curiae of Consumer Action, et al. filed.
Jun 15 2016Brief amicus curiae of Cato Institute filed.
Jun 15 2016Brief amici curiae of First Amendment Scholars filed.
Jun 15 2016Brief amici curiae of Scholars of Behavioral Economics filed.
Aug 1 2016Brief of respondent Eric T. Schneiderman, Attorney General of New York in opposition filed.
Aug 1 2016Letter from counsel for respondents Cyrus Vance, District Attorney of New York County, and Ken P. Thompson, District Attorney of Kings County filed.
Aug 17 2016DISTRIBUTED for Conference of September 26, 2016.
Aug 17 2016Reply of petitioners Expressions Hair Design, et al. filed. (Distributed)
Sep 29 2016Petition GRANTED.
Nov 14 2016Joint appendix filed. (Statement of costs filed.)
Nov 14 2016Brief of petitioners Expressions Hair Design, et al. filed.
Nov 17 2016Brief amicus curiae of Institute for Justice filed.
Nov 21 2016Brief amicus curiae of United States, in support of neither party filed.
Nov 21 2016Brief amici curiae of The James Madison Institute, et al. filed.
Nov 21 2016Brief amici curiae of Retail Litigation Center, et al. filed.
Nov 21 2016Brief amici curiae of Cato Institute and Pacific Legal Foundation filed.
Nov 21 2016Brief amici curiae of Consumer Action, et al. filed.
Nov 21 2016Brief amici curiae of First Amendment Scholars and the First Amendment Lawyers Association filed.
Nov 21 2016Brief amici curiae of Ahold U.S.A., Inc., et al. filed.
Nov 21 2016Brief amicus curiae of CardX, LLC filed.
Nov 21 2016Brief amicus curiae of United States Public Interest Research Group Education Fund, Inc. filed.
Nov 21 2016Brief amici curiae of Scholars of Behavioral Economics filed.
Nov 21 2016Brief amicus curiae of Alan S. Frankel filed.
Nov 21 2016Brief amicus curiae of Professor Adam J. Levitin filed.
Dec 5 2016SET FOR ARGUMENT on Tuesday, January 10, 2017.
Dec 7 2016Record requested from the U.S.C.A. 2nd Circuit.
Dec 7 2016Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Dec 9 2016Record received from U.S.C.A. 2nd Circuit is electronic.
Dec 12 2016CIRCULATED.
Dec 14 2016Brief of respondent Eric T. Schneiderman, Attorney General of New York filed. (Distributed)
Dec 21 2016Brief amici curiae of Labor, Environmental, and Civil Rights Organizations filed. (Distributed)
Dec 21 2016Brief amici curiae of First Amendment Scholars filed. (Distributed)
Dec 21 2016Brief amicus curiae of Credit Union National Association filed. (Distributed)
Dec 21 2016Brief amici curiae of National Governors Association, et al. filed. (Distributed)
Dec 21 2016Brief amici curiae of Action on Smoking and Health, et al. filed. (Distributed)
Dec 21 2016Brief amici curiae of International Center for Law & Economics and Scholars of Law and Economics filed. (Distributed)
Dec 21 2016Brief amici curiae of Florida, et al. filed. (Distributed)
Dec 21 2016Brief amici curiae of Public Citizen, Inc., et al. filed. (Distributed)
Dec 21 2016Brief amicus curiae of New York Credit Union Association filed. (Distributed)
Dec 21 2016Brief amici curiae of Constitutional, Administrative, Contracts, and Health Law Scholars filed. (Distributed)
Dec 28 2016Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Jan 3 2017Reply of petitioners Expressions Hair Design, et al. filed. (Distributed)
Jan 10 2017Argued. For petitioners: Deepak Gupta, Washington, D. C. For United States, as amicus curiae: Eric J. Feigin, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondents: Steven C. Wu, Deputy Solicitor General, New York, N. Y.
Mar 29 2017Judgment VACATED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Ginsburg, and Kagan, JJ., joined. Breyer, J., filed an opinion concurring in the judgment. Sotomayor, J., filed an opinion concurring in the judgment, in which Alito, J., joined.
May 1 2017JUDGMENT ISSUED.