1-800-411-Pain Referral v. Richard Tollefson, D.C.
2014 U.S. App. LEXIS 4373
| 8th Cir. | 2014Background
- 411-Pain is a Florida referral business linking accident victims to Minnesota providers; Triana and Truman Injury PLLC are part of its Minnesota network.
- Minnesota amended its No-Fault Automobile Insurance Act, adding Subdivision 6(d) with restrictions on advertising for No-Fault benefits and provider disclosures.
- Subdivision 6(d) (1) prohibits advertising unless done by or at the direction of a health care provider; (2)–(3) require disclosure of provider name and license type; (5) bars dollar-amount references; (6) bars implied endorsement by law enforcement.
- Plaintiffs argue the amendments chill commercial speech and harm their First Amendment rights and business relationships.
- The district court denied a preliminary injunction, holding some provisions were inherently misleading and upholding others under Zauderer/central Hudson standards.
- On appeal, the Eighth Circuit reviews denial of a preliminary injunction seeking to bar enforcement of Subdivision 6(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Subdivisions 6(d)(5) and (6) unconstitutional as applied? | 6(d)(5) is inherently misleading; 6(d)(6) creates a vague/overbroad restriction on speech. | Speech restrictions target deceptive/false advertising and legitimate state interests in protecting consumers. | Subd. 6(d)(5) upheld as applied; Subd. 6(d)(6) upheld as applied to ads described. |
| Is Subdivision 6(d)(1) a permissible speech restriction? | Requires directing ads to be by a provider; suppresses advertising by referral firms. | Speaks to potentially unlawful activity and anti-kickback concerns; not a blanket ban. | Subd. 6(d)(1) is a valid restriction directing advertising to provider control. |
| Do Subdivisions 6(d)(2)–(3) disclosures violate the First Amendment? | Disclosures are unduly burdensome and facially infringe truthful advertising. | Disclosures are narrowly tailored, prevent deception, and are not unduly burdensome. | Disclosures pass Zauderer review; not unduly burdensome; tailored to prevent deception. |
| Should Subdivisions 6(d)(2)–(3) be reviewed under Zauderer or Central Hudson? | Zauderer should apply only if there is proven actual deception; otherwise Central Hudson applies. | Advertisements are inherently misleading, enabling Zauderer review. | Zauderer governs the disclosure rules; inherently misleading findings support disclosure. |
| What is the appropriate standard of review for a district court's denial of a preliminary injunction on a validly enacted statute? | Heightened standard requires likelihood of success on merits to enjoin. | Defer to district court under planned Parenthood and Dataphase standards. | Court applies the heightened standard; affirms denial based on likelihood of success and record. |
Key Cases Cited
- Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (U.S. 1980) (four-part test for commercial speech restrictions)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (U.S. 1985) (disclosure requirements must be reasonably related to preventing deception)
- Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 168 (U.S. 2010) (inherently misleading advertising permits disclosure regime under Zauderer)
- In re R.M.J., 455 U.S. 191 (U.S. 1982) (inherently misleading speech may be prohibited entirely)
- Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010) (portrayal-based advertising restrictions scrutinized under First Amendment)
- Public Citizen, Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011) (advertising restrictions evaluated for speech content)