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1-800-411-Pain Referral Service, LLC v. Otto

United States Court of Appeals, Eighth Circuit

March 10, 2014

1-800-411-Pain Referral Service, LLC; Truman Injury PLLC; Sergio Triana, D.C., Plaintiffs - Appellants
Leroy Otto, D.C.; Ralph Stouffer; Matthew Anderson, D.C.; Howard Fidler, D.C.; Robert Daschner, D.C.; Gregory Steele; Teresa Marshall, D.C.; Minnesota Board of Chiropractic Examiners, in their official capacities [1], Defendants - Appellees

Submitted November 20, 2013

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Appeal from United States District Court for the District of Minnesota - Minneapolis.

For 1-800-411-Pain Referral Service, LLC, Truman Injury PLLC, Sergio Triana, D.C., Plaintiffs - Appellants: Beverly A. Pohl, BROAD & CASSEL, Fort Lauderdale, FL.

For Leroy Otto, D.C., Ralph Stouffer, Matthew Anderson, D.C., Howard Fidler, D.C., Robert Daschner, D.C., Gregory Steele, Teresa Marshall, D.C., Minnesota Board of Chiropractic Examiners, in their official capacities, Defendants - Appellees: Kermit Neil Fruechte, ATTORNEY GENERAL'S OFFICE, Consumer Enforcement Division, Saint Paul, MN; Karen Diane Olson, Deputy Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Saint Paul, MN.

Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.


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MELLOY, Circuit Judge.

Plaintiffs are 1-800-411-Pain Referral Service, LLC (" 411-Pain" ), a medical and legal referral business for car accident victims; Sergio Triana, D.C., a chiropractor; and Truman Injury PLLC, Mr. Triana's practice entity. Together they filed a 42 U.S.C. § 1983 complaint, alleging that recent amendments to Minnesota's No-Fault Automobile Insurance Act, Minn. Stat. § § 65B.41-71, violate the First Amendment. They also filed a motion for a preliminary injunction based on the allegations in their § 1983 suit, seeking to enjoin Defendants, members of the Minnesota Board of Chiropractic Examiners, from enforcing the new provisions. The district court[2] denied the motion, and Plaintiffs appeal. Having jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm.

I. Background

A. The Parties

411-Pain is incorporated in Florida and promotes itself in several states using such media as billboards, radio, television, print, and the internet. When people call 411-Pain, they are connected to an operator who refers them to health care providers or attorneys[3] located in a particular caller's geographic area. 411-Pain says that its " extensive--and very costly--advertising" benefits providers in its referral network who might not otherwise choose to advertise on their own. Plaintiffs Sergio Triana, D.C., and Truman Injury PLLC are members of 411-Pain's referral network in Minnesota.

Defendants are the members of the Minnesota Board of Chiropractors (the " Board" ). Plaintiffs allege that Defendants, in their official capacity, have authority under Minnesota's No-Fault Automobile Insurance Act, Minn. Stat. § § 65B.41-71 (the " No-Fault Act" or " Act" ), to discipline providers such as Mr. Triana. See, e.g., Minn. Stat. § 65B.54, Subdiv. 6(e) (" A violation of this subdivision is grounds for the licensing authority [i.e., the Board] to take disciplinary action against the licensee, including revocation in appropriate cases." ). Plaintiffs aver that Defendants' enforcement authority under the Act will cause health care providers such as Mr. Triana to refuse to do business with 411-Pain out of fear of discipline, thereby chilling Plaintiffs' commercial speech rights and causing economic harm.

B. Minnesota's No-Fault Act Amendments and Their Impact on 411-Pain

This matter concerns 411-Pain's radio and television advertisements that reference potential benefits available under the No-Fault Act. The Act requires insurers to provide basic economic loss benefits to their insureds, regardless of fault. Specifically, the Act mandates coverage of up to $20,000 for medical expense loss and up to $20,000 for lost income, replacement service loss, funeral loss, survivor's economic loss,

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and survivor's replacement services loss. Minn. Stat. § 65B.44, Subdiv. 1.

To curtail potentially unethical practices by " licensed health care provider[s]," the Act also includes restrictions on the solicitation and advertisement of medical services to car accident victims. See generally Minn. Stat. § 65B.54, Subdiv. 6. For example, providers must not initiate direct contact with a victim of an automobile accident " for the purpose of influencing that person to receive treatment or to purchase any good or item" from such providers. Id. at Subdiv. 6(a). Providers may still advertise their services eligible for insurance coverage by the Act in various public media, but only if the advertisements comply with Minn. Stat. § 65B.54, Subdiv. 6(d) (" Subdivision 6(d)" ). The Minnesota Legislature added Subdivision 6(d) in 2012. This new subdivision creates several rules for providers who wish to advertise under the Act. It reads in relevant part as follows:

In addition to any laws governing, or rules adopted by, a health care provider licensing board, any solicitation or advertisement for medical treatment, or for referral for medical treatment, of an injury eligible for treatment under [the No-Fault Act] must:
1. be undertaken only by or at the direction of a health care provider; 2. prominently display or reference the legal name of the health care provider; 3. display or reference the license type of the health care provider, or in the case of a health care provider that is a business entity, the license type of all of the owners of the health care provider but need not include the names of the owners; 4. not contain any false, deceptive, or misleading information, or misrepresent the services to be provided; 5. not include any reference to the dollar amounts of the potential benefits under [the No-Fault Act]; and6. not imply endorsement by any law enforcement personnel or agency.

Plaintiffs allege that Subdivision 6(d) proscribes several aspects of 411-Pain's current advertising in Minnesota, in the process violating Plaintiffs' commercial speech rights. For example, 411-Pain's radio ads, among other things, tell car accident victims to call the company immediately after an accident and inform accident victims that they " may be entitled to up to forty thousand dollars in injury and lost wage benefits." [4] Plaintiffs claim that 411-Pain's reference to dollar amounts of potential benefits available under the Act violates Subdivision 6(d)(5). Also, the advertisements do not disclose the legal names or license types of the health care providers in 411-Pain's referral network, which Plaintiffs allege violates Subdivisions 6(d)(2) and (3).

Further, television advertisements described in an affidavit submitted by 411-Pain's owner, Robert Lewin, " feature a vehicle crash and then an actor appearing as a police officer or EMT with an ambulance conveying to viewers that if they call the phone number associated with 800-411-PAIN or go to, then they can get help after being injured in an accident." Mr. Lewin attests that these TV spots " contain a conspicuous and prominent disclaimer stating that the person

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appearing in the advertisement is a 'PAID ACTOR.'" [5] Plaintiffs allege that 411-Pain's TV advertisements, despite the disclaimer as described by Mr. Lewin, violate Subdivision 6(d)(6).[6]

C. District Court Proceedings

Subdivision 6(d) and other amendments to the Act were scheduled to take effect on January 1, 2013. 1-800-411-Pain Referral Service, LLC v. Tollefson, 915 F.Supp.2d 1032, 1036 (D. Minn. 2012). Plaintiffs filed the instant motion for a preliminary injunction, see Fed.R.Civ.P. 65, in federal district court on December 5, 2012. They sought to enjoin Defendants from enforcing Subdivisions 6(d)(1), (2), (3), (5), and (6).[7] In their underlying § 1983 complaint filed against Defendants in Defendants' official capacity, Plaintiffs argued that Subdivision 6(d) violates their First Amendment rights in several ways. First, Plaintiffs claimed Subdivision 6(d)(1) creates an unconstitutional " blanket ban" on 411-Pain's commercial speech because the company does not operate at " the direction of" any one health care provider. Second, Plaintiffs claimed that Subdivisions 6(d)(2) and (3), the disclosure requirements, are unconstitutional because the requirements are so unjustified and unduly burdensome that they create a de facto ban on 411-Pain's ability to advertise in Minnesota. Third, Plaintiffs alleged that Subdivision 6(d)(5), which prohibits any reference in advertisements to dollar amounts potentially recoverable under the Act, creates an unconstitutional content-and-speaker-based restriction on 411-Pain's commercial speech. Finally, Plaintiffs argued that Subdivision 6(d)(6), which forbids advertising under the Act that " impl[ies] endorsement by any law enforcement personnel or agency," is either unconstitutionally vague or else unconstitutionally restricts Plaintiffs' commercial speech.

The district court denied Plaintiffs' motion, concluding they were not " likely to prevail on the merits" on any of their claims under this circuit's heightened preliminary injunction standard for enjoining validly enacted statutes. See Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008) (en banc) (" Planned Parenthood" ). The court found that while Subdivisions 6(d)(1), (5), and (6) constituted content-and-speaker-based restrictions on speech, Sorrell v. IMS Health Inc., 131 S.Ct. 2653, 2672, 180 L.Ed.2d 544 (2011), 411-Pain's advertisements were " inherently misleading" and thus not entitled to First Amendment protection under Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557, 563-64, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

The district court concluded that 411-Pain's advertisements were " inherently misleading" for several reasons. For one, the ads failed to inform accident victims of the ...

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