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Golub Corporation v. Tisch

United States District Court, Second Circuit

May 23, 2013

MERRYL H. TISCH; MILTON L. COFIELD; ROBERT M. BENNETT; JAMES C. DAWSON; ANTHON.Y.S. BOTTAR; GERALDINE C. CHAPEY; HARRY PHILLIPS, III; JAMES R. TALLON, JR.; ROGER TILLES; CHARLES R. BENDIT; BETTY A. ROSA; LESTER W. YOUNG, JR.; CHRISTINE D. CEA; WADE S. NORWOOD; JAMES O. JACKSON; KATHLEEN M. CASHIN; and JAMES E. COTTRELL, in their official capacities as members of the Board of Regents of the University of the State of New York; JOHN B. KING, JR., in his official capacity as Commissioner of Education of the New York State Education Department; and LAWRENCE H. MOKHIBER, in his official capacity as Executive Secretary of the New York State Board of Pharmacy, Defendants.


LAWRENCE E. KHAN, District Judge.


Plaintiff The Golub Corporation ("Plaintiff") brought this action for declaratory and injunctive relief against various New York State officials with authority to regulate pharmacies (collectively, "Defendants"), alleging that Defendants contravened Plaintiff's constitutional right to free speech. Dkt. No. 1 ("Complaint"); cf. Dkt. No. 8 ("Answer"). Both sides have now moved the Court for summary judgment. Dkt. Nos. 15 ("Defendants' Motion"), 20 ("Plaintiff's Motion"). For the reasons that follow, the Court denies both Motions.


Plaintiff is a Delaware corporation that operates 49 pharmacies in New York State, 45 of them within Plaintiff's "Price Chopper" supermarkets and 4 under the name "Price Chopper House Calls Pharmacy." Dkt. No. 15-1 ("Defendants' Facts") ¶¶ 1-3; Dkt. No. 20-7 ("Plaintiff's Facts") ¶¶ 1-3. Under Plaintiff's customer rewards program, called "Price Chopper Fuel Advant Edge " ("Advant Edge "), an enrolled customer becomes eligible for a discount of 10 cents per gallon up to 20 gallons at participating Sunoco gas stations each time she spends $100 on qualifying purchases at Plaintiff's stores.[1] Defs.' Facts ¶¶ 20-21; Pl.'s Facts ¶¶ 20-21; Dkt. No. 15-4 ("Defendants' Memorandum") at 5; Dkt. No. 20-8 ("Plaintiff's Memorandum") at 2.

Prior to February 10, 2010, Advant Edge brochures stated that customers' prescription drug co-pays were qualifying purchases. Defs.' Facts ¶¶ 23, 25; Pl.'s Facts ¶¶ 23, 25; Dkt. No. 15-3 ("Grogan Declaration") Ex. A. On February 10, 2010, the New York State Education Department's Office of Professional Discipline issued a letter ("OPD Letter") warning Plaintiff that the Advant Edge brochures' statements that prescription drug purchases counted toward the discount on Sunoco gas constituted actionable professional misconduct.[2] Defs.' Facts ¶ 27; Pl's Facts ¶¶ 23, 25, 27; Grogan Decl. Ex. B; see N.Y. COMP. CODES R. & REGS. tit. 8, § 29.1(b)(12)(i)(e). Plaintiff thereupon altered the Advant Edge brochures to state that prescription co-pays do not qualify in New York. Defs.' Facts ¶ 28; Pl.'s Facts ¶¶ 23, 25, 28. Other than sending the letter, Defendants have taken no actions against Plaintiff. Defs.' Facts ¶¶ 29, 45; Pl.'s Facts ¶¶ 29, 45, 49.

On December 23, 2011, Plaintiff filed this action seeking: (1) a declaration that the professional misconduct rule barring advertisement of the inclusion of prescription co-pays in the Advant Edge program is an unconstitutional restriction on speech; and (2) an injunction prohibiting Defendants from enforcing or threatening to enforce that rule. Compl. Defendants filed an Answer on March 23, 2012, and moved for summary judgment on September 21, 2012. Ans.; Defs.' Mot. Plaintiff responded and cross-moved for summary judgment on January 2, 2013; replies followed. Pl.'s Mot.; Dkt. No. 27-1 ("Defendants' Reply"); Dkt. No. 29 ("Plaintiff's Reply").


A. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure instructs a court to grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Although "[f]actual disputes that are irrelevant or unnecessary" will not preclude summary judgment, "summary judgment will not lie if... the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc. , 924 F.2d 43, 46 (2d Cir. 1991).

The party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). If the moving party shows that there is no genuine dispute as to any material fact, the burden shifts to the nonmoving party to demonstrate "the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id . This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp. , 475 U.S. 574, 586 (1986).

At the same time, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc. , 164 F.3d 736, 742 (2d Cir. 1998). A court's duty in reviewing a motion for summary judgment is "carefully limited" to finding genuine disputes of fact, "not to deciding them." Gallo v. Prudential Residential Servs. , 22 F.3d 1219, 1224 (2d Cir. 1994).

B. Commercial Speech

The First Amendment to the United States Constitution states, "Congress shall make no law... abridging the freedom of speech, or of the press...." U.S. CONST. amend. I. This prohibition applies generally to state governments as well by virtue of the Fourteenth Amendment. See U.S. CONST. amend. XIV, § 1 ("No State shall... deprive any person of life, liberty, or property, without due process of law...."); 44 Liquormart, Inc. v. Rhode Island , 517 U.S. 484, 489 n.1 (1996) ("[T]he [First] Amendment applies to the States under the Due Process Clause of the Fourteenth Amendment."); Shelley v. Kraemer , 334 U.S. 1, 15 (1948) ("The federal guarantee of due process extends to state action through its judicial as well as through its legislative, executive, or administrative branch of government." (quoting Brinkerhoff-Faris Trust & Sav. Co. v. Hill , 281 U.S. ...

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