Expressions Hair Design v. Schneiderman

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
15-1391	2d Cir.	Jan 10, 2017 Tr.Aud.	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

Opinion analysis: Justices offer minimalist decision on New York credit-card surcharge statute (Ronald Mann)
Argument analysis: Merchants seem to fall short in challenge to New York statute banning credit-card “surcharges” (Ronald Mann)
Argument preview: Merchants bring payment-card interchange wars to the Supreme Court (Ronald Mann)
Justices add eight new cases to docket for upcoming term (Amy Howe)
Petitions of the day (Kate Howard)

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

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Editor's Note :

Expressions Hair Design v. Schneiderman

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Academic highlight: Levitt on the collateral consequences of Department of Commerce v. New York – Amanda Frost

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Relist Watch: The Muller Report – John Elwood

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