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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LEDA HEALTH CORPORATION, CASE NO. 2:24-cv-00871-DGE 11 Plaintiff, ORDER ON MOTION FOR 12 v. INJUNCTION PENDING APPEAL (DKT. NO. 46) 13 JAY ROBERT INSLEE et al., 14 Defendant. 15
16 I INTRODUCTION 17 This matter comes before the Court on Plaintiff Leda Health Corporation’s motion for 18 injunction pending appeal. (Dkt. No. 46.) Defendant filed a response (Dkt. No. 51), to which 19 Plaintiff replied (Dkt. No. 52). For the foregoing reasons, the Court DENIES Plaintiff’s motion. 20 II BACKGROUND 21 On October 21, 2024, the Court denied Plaintiff’s motion for a preliminary injunction and 22 granted Defendant’s motion to dismiss. (Dkt. No. 42.) The factual and procedural background 23 24 1 of this matter is set forth in detail in the Court’s recent order. (See id.) Accordingly, only a brief 2 account of the relevant facts is provided herein. 3 Leda Health is a company known for developing Early Evidence Kits (“EEKs”)— 4 products that allegedly enable sexual assault survivors to “self-collect and store evidence such as 5 DNA” if they are unable or unwilling to seek a traditional forensic medical examination. (Dkt.
6 No. 11 at 4.) On October 31, 2022, the Washington State Attorney General’s Office (AGO) 7 issued Leda a notification directing the company to “immediately cease and desist from 8 advertising, marketing, and sales to Washington consumers related to its ‘Early Evidence Kits’ 9 on the basis that Leda’s business practices related to these kits violated the Washington 10 Consumer Protection Act.” (Dkt. No 19-1 at 29.) The letter stated that “Leda’s claims regarding 11 the admissibility of its at-home kits have the capacity to deceive a Washington consumer into 12 believing that its Early Evidence Kits have equivalent evidentiary value to a sexual assault 13 evidence kit (“SAEK”) administered by a medical professional.” (Id. at 30). The notice went on 14 to assert that the self-administered nature of Leda’s EEKs would predictably result in “numerous
15 barriers to admission as evidence, including on the basis of potential cross-contamination, 16 spoilation, and validity.” (Id.) It emphasized that, in Washington, exams by a trained Sexual 17 Assault Nurse Examiner (SANE) are “both free and routinely admissible.” (Id. at 31.) Thus, the 18 letter concluded that “Leda charging consumers for Early Evidence Kits despite the fact they are 19 unlikely to be admissible in a criminal court is an unfair and deceptive business practice” in 20 violation of the Washington Consumer Protection Act. (Id.) 21 Subsequently, Washington’s legislature passed House Bill 1564, “An Act Relating to 22 prohibiting the sale of over-the-counter sexual assault kits.” (Dkt. No. 19-1 at 3.) The law went 23 into effect on July 23, 2023. (Dkt. No. 30 at 13.) Several representatives from Leda Health 24 1 testified at hearings on the bill, asserting that Leda’s kits are not misleading but rather intended 2 to be an additive option for the approximately 70% of sexual assault victims who do not go to the 3 hospital, or for those who go but are not able to see a SANE nurse. (Dkt. No. 13 at 181.) Leda 4 further stated that while the company did not guarantee evidence admissibility, it had procedures 5 in place to establish chain of custody and believed that evidence from its kits should be
6 admissible in court. (Id.) Thus, it concluded “[t]he sale of over-the-counter sexual assault kits 7 may prevent survivors from receiving accurate information about their options and reporting 8 processes; from obtaining access to appropriate and timely medical treatment and follow up; and 9 from connecting to their community and other vital resources.” Id. 10 Entitled “[o]ver-the-counter sexual assault kits” and codified at Washington Revised 11 Code § 5.70.070, the act establishes that: 12 (2) A person may not sell, offer for sale, or otherwise make available a sexual assault kit:
13 a) That is marketed or otherwise presented as over-the-counter, at-home, or self-collected or in any manner that indicates that the sexual assault kit may 14 be used for the collection of evidence of sexual assault other than by law enforcement or a health care provider; or 15 b) If the person intends, knows, or reasonably should know that the sexual 16 assault kit will be used for the collection of evidence of sexual assault other than by law enforcement or a health care provider. 17 Wash. Rev. Code § 5.70.070(2). The statute defines “sexual assault kit” as “a product with 18 which evidence of sexual assault is collected.” Wash. Rev. Code § 5.70.070(1). It further 19 stipulates that a violation of the section constitutes “an unfair or deceptive act in trade or 20 commerce and an unfair method of competition for the purpose of applying [Washington’s] 21 consumer protection act.” Wash. Rev. Code § 5.70.070(3). 22 On June 17, 2024, Plaintiff filed a Complaint for declaratory and injunctive relief, 23 asserting that Washington Revised Code § 5.70.070 (hereinafter “the Statute”) was 24 1 unconstitutional on multiple counts in violation of 42 U.S.C. § 1983. (Dkt. No. 1.) The 2 Complaint claimed that the Statute impermissibly regulated protected speech in violation of the 3 First and Fourteenth Amendments and was thus unconstitutional facially and as applied to Leda 4 Health. (Id. at 13–16.) The complaint further alleged that the Statute was void for overbreadth 5 and vagueness, both facially and as applied, and that it constituted an unconstitutional bill of
6 attainder. (Id. at 16–20.) Plaintiff moved for a preliminary injunction to prevent enforcement of 7 the Statute (Dkt. No. 10) and Defendant filed a motion to dismiss (Dkt. No. 30). The Court 8 found that the merits of Plaintiff’s claims failed as a matter of law; accordingly, the Court denied 9 Plaintiff’s motion for a preliminary injunction and granted Defendant’s motion to dismiss. (Dkt. 10 No. 42.) 11 Plaintiff subsequently filed the instant motion for injunction pending appeal, arguing that 12 the “[t]he Court erred” in finding that Leda failed to put forth a cognizable facial First 13 Amendment claim. (Dkt. No. 46 at 3.) Because the Statute violates Leda’s First Amendment 14 rights, Leda asserts, the company is entitled to an injunction pending appeal. (Id.) Leda does not
15 address the other constitutional arguments it raised in its original motion for preliminary 16 injunction—thus, the motion at hand is based entirely upon its facial First Amendment challenge 17 to the Statute. (Id.) Defendant argues that “Leda presents no new arguments justifying an 18 injunction pending appeal” and thus “Leda is still not likely to succeed on the merits of its free 19 speech claims.” (Dkt. No. 51 at 5.) 20 III LEGAL STANDARD 21 Pursuant to Federal Rule of Civil Procedure 62(d), the Court may grant an injunction on 22 terms . . . that secure the opposing party’s rights” pending appeal of “an interlocutory order or 23 final judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or 24 1 modify an injunction.” “The standard for evaluating an injunction pending appeal is similar to 2 that employed . . . in deciding whether to grant a preliminary injunction.” Feldman v. Ariz. Sec. 3 of State's Office, 843 F.3d 366, 367 (9th Cir. 2016). Thus, “[i]n evaluating a motion for an 4 injunction pending appeal, [courts] consider whether the moving party has demonstrated [1] that 5 they are likely to succeed on the merits, [2] that they are likely to suffer irreparable harm in the
6 absence of preliminary relief, [3] that the balance of equities tips in their favor, and [4] that an 7 injunction is in the public interest.” South Bay United Pentecostal Church v. Newsom, 959 F.3d 8 938, 939 (9th Cir. 2020). The Ninth Circuit also permits an alternative test in which “‘serious 9 questions going to the merits and a hardship balance that tips sharply toward the plaintiff can 10 support issuance of an injunction, assuming the other two elements are also met.” All. for the 11 Wild Rockies v. Cottrell, 532 F.3d 1127, 1132 (9th Cir. 2011). 12 IV DISCUSSION 13 A. Likelihood of Success or Serious Questions 14 In its prior order denying Plaintiff’s motion for a preliminary injunction, the Court found
15 the Statute is an economic regulation of the sale of a product and not a regulation of speech. 16 (Dkt. No. 42 at 12.) To the extent the Statute incidentally implicates speech, the Court 17 concluded it is commercial in nature. (Id.) The Supreme Court has developed a four-part test for 18 evaluating the permissible regulation of commercial speech. Central Hudson Gas & Electric 19 Corp. v. Public Service Commission 447 U.S. 557, 566 (1980). “At the outset” a court must 20 determine whether the expression is protected at all; “[f]or commercial speech to come within 21 that provision, it at least must concern lawful activity and not be misleading.” Id. The Court 22 determined the commercial speech at issue relates to illegal activity and is therefore not 23 24 1 protected. (Dkt. No. 42 at 14.) Accordingly, the Court did not move past the first Central 2 Hudson step. 3 In its motion for injunction pending appeal, Leda asserts the statute implicates protected 4 speech and suggests “the Court did not conduct the actual speech analysis” under Central 5 Hudson. (Dkt. No. 46 at 7.) At a minimum, Leda argues, its motion “raise[s] serious questions
6 going to the merits.” (Id.) (citing Al. for the Wild Rockies, 632 F.3d at 1135). The Court cannot 7 find serious questions going to the merits of the First Amendment question for two reasons, 8 however. First, the Court is not persuaded that its First Amendment analysis was “wrong”; it 9 once more finds the Statute is an economic regulation of a product and not a speech regulation. 10 (Dkt. No. 46 at 6.) Second, even if the Statute is construed as regulating legal, non-misleading 11 commercial speech, the legislation satisfies the Central Hudson factors and therefore passes 12 constitutional muster on separate grounds. 13 1. Speech as Presumptive Evidence of Product Type Does Not Implicate the First Amendment 14 Leda argues the Court erred in finding the statute does not implicate protected speech. 15 (Dkt. No. 46 at 2.) In construing the Statute, the Court determined it closely resembles the 16 statutory regimes at issue in two D.C. Circuit cases—Nicopure Labs, LLC v. Food & Drug 17 Admin and Whitaker v. Thompson. See 944 F.3d 267, 282 (D.C. Cir. 2019); 353 F.3d 947, 953 18 (D.C. Cir. 2004)). Both Whitaker and Nicopure involved FDA regulations that “use [] a 19 product’s marketing and labeling to discern to which regulatory regime a product is subject, and 20 [] treat [the product] as unlawful insofar as it is marketed under a different guise.” Nicopure, 21 944 F.3d at 282. The D.C. Circuit held “the FDA d[oes] not run afoul of the First Amendment 22 when it relies on manufacturer statements” in this way. Id. The Whitaker panel grounded this 23 24 1 holding in the principle that “the use of speech to infer intent, which in turn renders an otherwise 2 permissible act unlawful, is constitutionally valid.” Whitaker, 353 F.3d at 953. 3 Leda argues that Nicopure and Whitaker are “not analogous” and that there is, in fact, 4 “no . . . example of similar valid statute—where the ‘stated use’ in the marketing of a legal item 5 turns it from legal to illegal to sell.” (Dkt. No. 46 at 5.) Not so. In Nicopure, the regulation at
6 issue established: “No person may introduce or deliver for introduction into interstate commerce 7 any modified risk tobacco product,” unless the product is cleared by the FDA. Nicopure 944 8 F.3d at 277 (citing 21 U.S.C. § 387k). The regulation defines “modified risk tobacco product” as 9 a product “the label, labeling, or advertising of which represents explicitly or implicitly that [] 10 the tobacco product presents a lower risk of tobacco-related disease… [or] the label, labeling or 11 advertising of which uses the descriptors ‘light,’ ‘mild’ or ‘low’[.]” Id. Thus, “[w]hether a 12 product falls in the modified risk category turns on how the manufacturer describes the product’s 13 characteristics and intended use.” Id. at 283. In this way, “selling an e-cigarette as less 14 risky . . . renders the sale-as-labeled unlawful.” Id. Despite Leda’s strained characterization to
15 the contrary, “the ‘stated use’ in the marketing” does indeed determine whether one may legally 16 sell the tobacco product. 17 Likewise, Whitaker involved a statutory regime in which the “classification of a 18 substance as a ‘drug’ turn[ed] on the nature of the claims advanced on its behalf.” Whitaker, 353 19 F.3d at 953. As the Nicopure court stated, “[i]n Whitaker . . . . [o]nce the manufacturer made a 20 ‘drug claim’ regarding treatment of a disease or its symptoms, it was required to clear the FDA’s 21 drug approval pathway, and its sale accompanied by a drug claim without approval as a drug 22 became unlawful.” Nicopure 944 F.3d at 283. Just as it is illegal for manufacturers to sell “saw 23 palmetto” (the substance at issue in Whitaker) under a label describing its effectiveness in 24 1 treating prostatic hyperplasia, Leda and other manufacturers cannot sell a “kit” that is labeled for 2 self-collection of sexual assault evidence. See Whitaker, 353 F.3d. at 233. 3 As the Court was not provided with any analogous caselaw to the contrary, it applied the 4 D.C. Circuit’s well-reasoned conclusion that the use of a claim made by the manufacturer to 5 determine whether a product is subject to regulation does not constitute a regulation of speech.
6 (Dkt. No. 42 at 9–11.) The Court’s holding was further supported by similar First Circuit 7 precedent. See Nat’l Ass’n of Tobacco Outlets, Inc. v. City of Providence, R.I., 731 F.3d 71 (1st 8 Cir. 2013) (description on label as presumptive evidence of product classification for the 9 purposes of banning the product’s sale does not implicate speech). Moreover, the First, Second, 10 and Seventh Circuits have uniformly concluded that the evidentiary use of promotional speech to 11 establish a product’s intended use—and thereby determine whether it is a mislabeled “drug” 12 under the FDCA—does not implicate the First Amendment. See United States v. LeBeau, 654 F. 13 App’x 826, 830–831 (7th Cir. 2016) (explaining that the prosecutor’s use of the Defendant’s 14 statements to determine how he intended consumers to use his product, and therefore to
15 determine whether the product qualified “as a drug,” did not constitute prosecution “for having 16 made claims about his products” but rather prosecution for “acts—his attempt to profit from the 17 sale of a product—which he represented to have palliative properties—without having received 18 approval”) (emphasis in original); United States v. Facteau, 89 F.4th 1, 25 (1st Cir. 2023), cert. 19 denied, No. 23-1016, 2024 WL 4426540 (U.S. Oct. 7, 2024) (collecting cases). This caselaw is 20 persuasive, as the Statute prohibits the sale of sexual assault kits based on the kit’s intended 21 use—at-home evidence collection—which may be determined by claims from the manufacturer 22 that the kits are for at-home evidence collection. Finally, the operative verbs of the Statute— 23 “sell,” “offer for sale,” and “make available”—further support the construction of the Statute as 24 1 an economic regulation of a particular product, as they contemplate transactional conduct and not 2 speech or expression. C.f. Williams, 533 U.S. at 294. 3 As Leda has failed to direct the Court to any additional caselaw, the Court once more 4 finds that the statute does not implicate protected speech. 5 2. Permissible Regulation of Commercial Speech
6 As the Ninth Circuit noted in Sammartano v. First Judicial Court, “the fact that a case 7 raises serious First Amendment questions compels a finding that there exists the potential for 8 irreparable injury.” 303 F.3d 959, 973 (9th Cir. 2002) (abrogated on other grounds by Winter, 9 555 U.S. 7). Leda asserts that, at minimum, it has “raised serious questions going to the merits” 10 and that it therefore also meets the balance of hardships factor. (Dkt. No. 46 at 7) (citing 11 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). However, the 12 Court cannot find that this matter raises “significant” First Amendment questions because even if 13 the Statute is taken as a regulation of speech, the legislation satisfies the Central Hudson factors 14 and therefore passes constitutional muster. See Central Hudson,447 U.S. at 566.
15 In its prior order, the Court determined that—to the extent the Statue implicates speech— 16 the speech in question is commercial in nature. (Dkt. No. 42 at 12–13).1 However, the Court did 17
18 1 “Speech [can] properly be characterized as commercial when (1) the speech is admittedly advertising, (2) the speech references a specific product, and (3) the speaker has an economic 19 motive for engaging in the speech.” Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1106 (9th Cir. 2004) (citing Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66–67 (1983)). The 20 Ninth Circuit has declined to limit the scope of commercial speech to “circumstances where clients pay for services,” emphasizing that advertisements or marketing that is “placed in a 21 commercial context and directed at the providing of services rather than toward an exchange of ideas” qualifies as commercial speech even if the solicitation is of a non-paying client base. 22 First Resort, Inc. v. Herrera, 860 F.3d 1263, 1273 (9th Cir. 2017). The Statute prohibits “offering” sexual assault kits “for sale”— speech that “does no more than propose a commercial 23 transaction.” Bolger, 463 U.S. at 66. Even a hypothetical “offer for sale” at no cost (free distribution of EEKs) would still explicitly “reference the product” itself and be directed at the 24 1 not conduct the full, four-part Central Hudson analysis, as it found that any offer for sale of an 2 EEK constitutes an offer to engage in an illegal transaction, and such speech is “categorically 3 excluded from First Amendment protection.” Williams, 553 U.S. at 297; Levi Strauss & Co. v. 4 Shilon, 121 F.3d 1309, 1312 (9th Cir. 1997); see also Nicopure, 944 F.3d at 284 (citing Hoffman 5 Estates, 455 U.S. at 496) (“speech proposing an illegal transaction is speech which a government
6 may regulate or ban entirely . . . the FDA does not run afoul of the First Amendment when it 7 relies on manufacturer statements”). Likewise, any marketing represents “commercial speech 8 related to illegal activity” if Leda attempts to sell kits with the intent that they be used for at- 9 home evidence collection. Central Hudson, 447 U.S. at 564. Thus, it is not necessary to move 10 past this initial Central Hudson step. 11 Assuming arguendo the speech concerns lawful activity, the Court must then determine it 12 is not misleading, as misleading speech is likewise unprotected. See Central Hudson, 447 U.S. 13 at 566 (“At the outset, we must determine whether the expression is protected by the First 14 Amendment. For commercial speech to come within that provision, it at least must concern
15 lawful activity and not be misleading.”). The Washington Legislature concluded “[a]t-home 16 sexual assault test kits create false expectations” (2023 Wash. Sess. Laws, ch. 296, § 1) and the 17 Attorney General found Leda’s claims about the admissibility of the evidence had the capacity to 18 deceive consumers. (Dkt. No 19-1 at 29.) Accordingly, there is—at minimum—a serious 19
20 “provision of services”—services that are typically provided so that the company can turn a profit. Joseph, 353 F.3d at 1006; Herrera, 860 F.3d, at 1263. This too meets the definition of 21 commercial speech. To the extent that the marketing language in subsection 2(a) burdens speech, it only does so if a person is selling a kit that is “marketed or otherwise presented as 22 over-the-counter”; critically, it is the sale or distribution of a product meeting the description in 2(a) that triggers the statute. Thus, to the extent that the Statute implicates speech, the speech is 23 “‘linked inextricably’ with the commercial arrangement that it proposes.” Edenfield v. Fane, 507 U.S. 761, 767 (1993) (quoting Friedman v. Rogers, 440 U.S. 1, 10, n. 9 (1979)). 24 1 question about whether Leda’s speech is misleading, especially because “[t]he First Amendment 2 test of regulation of potentially misleading commercial speech allows for contextual 3 determination of accuracy based on consumers’ understanding.” Nicopure, 944 F.3d at 287; see 4 also In re R. M. J., 455 U.S. 191, 200 (1982) (when “the public lacks sophistication,” certain 5 statements may be found misleading that would otherwise be considered unimportant). In
6 certain circumstances, an “overall net impression” received by a “significant minority of 7 reasonable consumers” can indicate that speech is misleading. Nicopure, 944 F.3d at 287 8 (quoting POM Wonderful, LLC v. FTC., 777 F.3d 478, 490 (D.C. Cir. 2015)). Thus, the speech 9 in question may well fail this initial Central Hudson step as well. However, for the purposes of 10 the current order, the Court does not reach this question. 11 Assuming the speech concerns lawful activity and is not misleading, step two of the 12 Central Hudson test looks to “whether the asserted government interest is substantial.” See 13 Central Hudson, 447 U.S. at 566. If it is, the Court must find that the regulation directly 14 advances the governmental interest asserted and that it is not more extensive than necessary to
15 serve that interest. Id. Neither Plaintiff nor Defendant denies that Washington’s stated interest 16 in “support[ing] survivors of sexual offenses through . . . systems that promote successful 17 investigations and prosecutions of sexual offenses,” including by “preserve[ing] [] forensic 18 evidence” and ensuring that survivors receive accurate information and timely medical attention 19 is substantial. 2023 Wash. Sess. Laws, ch. 296, § 1. Indeed, many Courts have affirmed the 20 state’s substantial interest in protecting victims, including through securing needed evidence. 21 See, e.g., In re Grand Jury Empaneling of Special Grand Jury, 171 F.3d 826, 832 (3d Cir. 1999) 22 (finding the state has a compelling interest in securing evidence to punish criminal activity); 23 United States v. Morrison, 529 U.S. 598, 599 (2000) (“[T]here is no better example of the police 24 1 power, which the Founders undeniably left reposed in the States . . . than the suppression of 2 violent crime and vindication of its victims.”). This factor is therefore established. 3 Next, the Court must determine that the government’s regulation directly advances the 4 substantial interest; “the regulation may not be sustained if it provides only ineffective or remote 5 support for the government’s purpose.” Central Hudson, 447 U.S. at 564. Here, the regulation
6 directly addresses the issues the government identified. By banning the sale and distribution of 7 sexual assault kits marketed for at-home use, the Statute dramatically reduces the odds that 8 survivors will access at-home kits that may later be found inadmissible in court, otherwise 9 hamper prosecution efforts, or serve as an inadequate stand-in for timely medical examination 10 following an assault. 11 Step four “complements” step three by “asking whether the speech restriction is not more 12 extensive than necessary to serve the interests that support it.” Greater New Orleans Broad. 13 Ass’n, Inc. v. United States, 527 U.S. 173, 188 (1999). “[T]he least restrictive means is not the 14 standard; instead, the case law requires a reasonable fit between the legislature’s ends and the
15 means chosen to accomplish those ends, a means narrowly tailored to achieve the desired 16 objective.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001) (cleaned up); see also Bd. 17 of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 480 (1989) (“What our decisions 18 require is a ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends, a 19 fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best 20 disposition but one whose scope is in proportion to the interest served[.]”) (internal quotations 21 removed.). It is generally “up to the legislature to choose between narrowly tailored means of 22 regulating commercial speech.” Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1111 (9th 23 24 1 Cir. 2004). Courts are “loath to second-guess the Government’s judgment to that effect.” Fox, 2 492 U.S. at 478 (1989) (collecting cases). 3 The Statute “is a reasonable fit between the legislature’s ends and the means chosen to 4 accomplish those ends.” Joseph, 353 F.3d at 1111. In this case, the central issue the legislature 5 sought to address stemmed from the very existence of the product in the stream of commerce.
6 See 2023 Wash. Sess. Laws, ch. 296, § 1. (“[A]t-home sexual assault test kits create false 7 expectations and harm the potential for successful investigations and prosecutions.”). 8 Accordingly, the scope of the law (a ban on the sale of sexual assault kits marketed for at home 9 use) is sufficiently tailored to the end of preventing the use of such kits. It is not for the Court to 10 second guess the legislature’s identification of the problem itself—a matter that involved days of 11 hearings and fact finding. See Pearson v. Edgar, 153 F.3d 397, 404 (7th Cir. 1998) (“We 12 declined to second-guess the Illinois General Assembly’s judgment that real estate solicitation 13 poses a special problem to residential privacy because even on matters touching the First 14 Amendment, courts must accept plausible judgments by other governmental actors.”) (cleaned
15 up); Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94, 105 (2d Cir. 2010). The 16 legislature’s policy judgment to prohibit the sale of a product it deemed harmful is not only 17 reasonable but also a typical regulatory move. See LC&S, Inc. v. Warren Cnty. Area Plan 18 Comm’n, 244 F.3d 601, 604 (7th Cir. 2001) (“It is utterly commonplace for legislation to be 19 incited by concern over one person or organization.”). 20 In sum, even if the Statute is treated as a speech regulation implicating the First 21 Amendment, it meets the Central Hudson standard. Thus, Leda’s claim fails as a matter of law 22 for two separate reasons and does not represent a serious question going to the merits. 23 B. Remaining Factors 24 1 Plaintiff has failed to establish a likelihood of success on or serious questions going to the 2 merits. If the plaintiff fails to “establish[ ] serious questions going to the merits . . . [courts] need 3 not consider the remaining factors for an injunction.” Doe v. San Diego Unified Sch. Dist., 19 4 F.4th 1173, 1181 (9th Cir. 2021). Without a “threshold showing” of a likelihood of success on 5 the merits, the Court cannot grant Plaintiff’s motion for injunction pending appeal. E. Bay
6 Sanctuary Covenant v. Garland, 994 F.3d 962, 975 (9th Cir. 2020) (quoting Leiva-Perez v. 7 Holder, 640 F.3d 962, 966 (9th Cir. 2011)). Thus, because Plaintiff has failed to demonstrate 8 that the first factor weights in its favor, the Court’s inquiry is at an end. 9 V CONCLUSION 10 Accordingly, Plaintiff’s motion for injunction pending appeal (Dkt. No. 46) is DENIED. 11 Dated this 3rd day of January, 2025. 12 a 13 David G. Estudillo 14 United States District Judge
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