Law360: “Federal Judge Says Kansas Surcharge Ban Is Unconstitutional”
“Bernard Nash of Cozen O’Connor PC, counsel for CardX, told Law360 that the law seemed clear to them before they even filed the case because of U.S. Supreme Court precedent and decisions from other states. In the case of Expressions Hair Design v. Schneiderman, the high court found that New York’s surcharge ban regulated commercial speech and remanded the case for consideration under a test established by the 1980 Supreme Court decision in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York.
Nash said it was clear that Kansas violated the First Amendment in preventing merchants from explaining the surcharge.
‘We’re obviously very pleased, but we’re not surprised,’ he said of Thursday’s opinion.
Nash noted that after a presentation they made last year in Oklahoma, the state attorney general wrote an opinion that their statute was unconstitutional, so CardX didn’t have to file suit. He said he’s not sure which remaining state surcharge ban CardX will try to undo next.
‘The trend is to allow merchants to sell products and express their prices any way they want. The courts have been enforcing that,’ he said, later adding ‘It’s unfortunate that there are antiquated laws and some states say they’re going to enforce them.’”