Supreme Court of the United States · Official docket →
Living Essentials, LLC, et al. v. Washington
Paid petition · Court of Appeals of Washington, Division 1, No. 76463-2-1 · judgment March 18, 2019
Before the decision, about 2.6× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition), and down for a state or local-government respondent.
Question presented
The State of Washington brought a civil action against Petitioners under its consumer protection law, alleging that their advertisements for 5-hour ENERGY® were deceptive because they were “false” and “unsubstantiated.” At trial, however, the State abandoned its claim that the speech was false and instead argued it was deceptive under the Federal Trade Commission’s “prior substantiation” doctrine. That doctrine makes a commercial speaker liable if it lacks adequate “substantiation” for its factual claims before making them in an advertisement—even if the speech is never proven to be false. The trial court held that Petitioners had not adequately substantiated certain promotional claims about its product and the Washington Court of Appeals affirmed. Petitioners argued that the First Amendment does not permit speakers to be punished for failing to adequately “substantiate” their factual claims before exercising their right to free speech. The court of appeals disagreed, concluding that unsubstantiated speech is entitled to no First Amendment protection under this Court’s commercial speech cases, including Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 563 (1980), because unsubstantiated speech is “misleading” as a matter of law. The question presented is: Whether the prior substantiation doctrine violates the First Amendment.
Counsel of record
For petitioner
William Spencer Consovoy
Consovoy McCarthy PLLC
For respondent
Peter Benjamin Gonick
Attorney General of Washington
Proceedings
- Oct 05 2020Petition DENIED.
- Jul 15 2020DISTRIBUTED for Conference of 9/29/2020.
- Jul 13 2020Reply of petitioners Living Essentials, LLC, et al. filed. (Distributed)
- Jun 29 2020Brief of respondent State of Washington in opposition filed.
- May 06 2020Motion to extend the time to file a response is granted and the time is extended to and including June 29, 2020.
- May 05 2020Motion to extend the time to file a response from May 29, 2020 to June 29, 2020, submitted to The Clerk.
- Mar 30 2020Brief amici curiae of Kentucky, et al. filed.
- Mar 27 2020Brief amicus curiae of Liberty Justice Center filed.
- Mar 27 2020Brief amicus curiae of Center for Constitutional Jurisprudence filed.
- Mar 11 2020Brief amici curiae of Goldwater Institute; Cato Institute; Reason Foundation filed.
- Mar 10 2020Motion to extend the time to file a response is granted and the time is extended to and including May 29, 2020.
- Mar 06 2020Motion to extend the time to file a response from March 30, 2020 to May 29, 2020, submitted to The Clerk.
- Feb 28 2020Brief amici curiae of Robert M McKenna and Michael C Turpen filed.
- Feb 27 2020Response Requested. (Due March 30, 2020)
- Feb 19 2020DISTRIBUTED for Conference of 3/6/2020.
- Feb 12 2020Waiver of right of respondent State of Washington to respond filed.
- Feb 03 2020Petition for a writ of certiorari filed. (Response due March 9, 2020)
- Dec 10 2019Application (19A646) to extend the time to file a petition for a writ of certiorari from January 1, 2020 to February 3, 2020, submitted to Justice Kagan.
- Dec 10 2019Application (19A646) granted by Justice Kagan extending the time to file until February 3, 2020.