Texas Interior Design

Introduction

Starting a new business is a daunting task for even the most talented and dedicated entrepreneurs.  And among the greatest challenges any new business faces is attracting customers.  The Internet has made that task easier because now clients can find you.  But imagine what would happen if the government suddenly decided that you couldn’t truthfully and accurately tell customers what business you were in.  Whether on your homepage, business card or stationery, imagine you had to come up with euphemisms for what it is you do, rather than simply stating it.  You’d be out of work in no time.

Yet that is exactly what the State of Texas is doing to individuals in the field of interior design.

At the behest of lobbyists representing a small, pro-regulation faction of the interior design industry, several states, including Texas, have unconstitutionally censored interior designers through so-called “titling laws.”  These laws allow anyone topractice a trade, but allow only a select few state license holders to call themselves “interior designers” or use the words “interior design” to describe what they do—even when both terms accurately describe a person’s trade.[1]

Only Texas and four other states[2] license the terms “interior design” and “interior designer” but not the practice, thereby granting certain favored members in the industry a monopoly on the use of those terms in their business names, their advertising, their websites and so on.  The competitive advantages of such a speech monopoly are obvious:  anyone who goes looking for an “interior designer” on the Internet or in the Yellow Pages in Texas will find only government-licensed cartel members, while overlooking scores of highly capable designers who do not meet the state’s arbitrary requirements.

Thankfully, however, the Constitution does not allow such licensing of speech.  In a free nation like ours, the government has no business censoring truthful commercial speech the way Texas does.

Adding insult to injury, Texas’ interior design speech ban creates a degrading barrier to entry for entrepreneurs seeking their own piece of the American Dream.  Texas’ law relegates them to the status of second-class citizen—all to advance the blatantly anti-competitive agenda of a small faction within the interior design community.  Even worse, that same faction is now trying to put those who refuse to bow to licensing demands out of business altogether by transforming Texas’ blatantly unconstitutional “title act” into an even more restrictive “practice act” that would dictate not only who may call themselves an interior designer, but who may work as one.

Given this threat to the livelihoods of hundreds or even thousands of hard-working small businesspeople in Texas, the time is ripe for action.  That is why, on May 9, 2007, the Institute for Justice challenged Texas’ interior design censorship law as a violation of free speech rights protected by the First Amendment to the U.S. Constitution.

National Movement to Design a Cartel Moves to the Lone Star State

America has long recognized that citizens have the right to earn an honest living free from excessive or unreasonable government interference.[3]  The most common interference with this right occurs when newcomers to a vocation are required to secure permission from the government in the form of a license before they may work in their chosen field.  Oftentimes, these licensing schemes serve no genuine public purpose whatsoever; instead, they serve as barriers to entry into occupations to protect industry incumbents from competition.

Not surprisingly, because industry insiders who entered a field first benefit from decreased competition, they are often the ones pushing for increased regulation.  More and more occupations are falling under government regulation; in the early 1950s only about five percent of all occupations were subject to state-level licensing, but now about 20 percent of the workforce is subject to licensing requirements.[4]

In a case study released by the Institute for Justice in 2006 titled, “Designing Cartels:  How Industry Insiders Cut Out Competition,” researcher Dick Carpenter documented a long-running campaign by the American Society of Interior Designers (ASID) to increase regulation of the interior design industry in order to “increase the stature of the industry” and put would-be competitors out of business.[5]  Carpenter’s meticulous research documented that the nationwide push for more regulation of interior designers has come not from the public or the government, but from members of the industry itself.  According to a detailed history in the trade journal Architecture, a small faction within the design industry, led by the American Society of Interior Designers, began lobbying legislatures in the late 1970s for restrictions on who could work as an interior designer.[6]  Those efforts were motivated by a desire to establish interior design as a profession that is distinct from and not subordinate to architects, and to suppress competition within the interior design industry by erecting substantial barriers to entry.

ASID views titling laws like the one in Texas as merely a first step, with the ultimate goal being a full-fledged practice restriction that dictates who may and may not work as an interior designer.[7]  Despite its zealous pursuit of additional licensing laws around the country, the ASID-led pro-regulation faction has thus far met with very limited success, particularly regarding “practice acts.”  Only four states—Alabama, Florida, Louisiana and Nevada plus the District of Columbia[8]—regulate who may perform interior design work, and of those, only Alabama has a comprehensive practice act that applies to all facets of interior design work.[9]  Florida, for example, exempts residential work, while other states exempt interior design work that does not implicate building codes or bona fide health and safety concerns.

The pro-regulation contingent’s lack of success nationally is due in large part to their consistent failure to produce any credible evidence of public harm resulting from the unregulated practice of interior design despite multiple opportunities (and strong incentives) to produce such evidence.  For example, in October 2000, Colorado’s Department of Regulatory Agencies conducted an exhaustive “sunrise review” in connection with a proposal to begin regulating interior designers.  As explained in the report, despite being given the opportunity, proponents of the regulation submitted no information “demonstrating that harm to the public has occurred, or that the public was endangered . . . from the unregulated practice of interior design.”[10]  The Department concluded that it was “difficult to see a benefit to the public in regulating interior designers.”[11]  At least eight other states have reached the same conclusion in rejecting efforts by ASID and others to enact protectionist legislation designed to eliminate competition and maintain high barriers to entry into the interior design field.[12]

Unfortunately, having bought into the pro-regulation faction’s demands for a title law in 1991, Texas lawmakers are now witnessing ASID’s second step in the Lone Star State:  a small minority of the design community bent on quashing competition using government power is pursuing a practice law in the Texas Legislature.[13]  The pro-regulation faction has in fact tried for multiple legislative sessions to pass a practice law.

For the moment, anyone may perform interior design work in Texas, but only a small handful enjoys the privilege of truthfully advertising its services to the public.  The goals of the lawsuit filed by the Institute for Justice on behalf of four Texas interior design entrepreneurs are not only to strike down the current law which bans the truthful exchange of information between interior designers and consumers, but also to prevent the pro-regulation cartel from taking that next step toward practice regulation, as it is trying to do now.

The Plaintiffs—Forbidden to Speak Truthfully

Vickee Byrum developed her design skills on the job, first providing accounting and administrative services for an established interior designer and then moving into the creative side of the business.  Vickee had the opportunity to help provide design services to a client on a particular project, and from that experience she learned both how much she loved interior design as well as how much innate talent and skill she had for it.  Since then, Vickee opened Yellow Door Design and has become a full-service designer offering her services to primarily residential clients running the gamut from 2,000-square-foot homes all the way to 9,000-square-foot mansions.  Not only does she find her work fulfilling on a personal level as she helps create a personalized  “nest” for each client, it has also turned out to be a perfect career for a single mother—enabling Vickee to work out of her home and have a flexible schedule so that she has plenty of time with her daughters, ages 11 and 13.  Her design services include overseeing complete remodels of clients’ homes to assisting clients with the building of a new home.  Among her clients are those who have utilized her services in several homes over many years providing a testimony to the high quality of her work.

Vickee is fighting Texas’ title law both because it unconstitutionally limits her ability to promote her services and because it provides a vital lesson to her daughters about standing up for one’s rights.  Her design services include everything from overseeing complete remodels of clients’ homes to assisting clients who are building a new home.  Among her clients are those who have used her services in several homes over many years, providing a testament to the high quality of her work.

Joel Mozersky is one of the top names in the design community in Austin and his talents have graced a variety of Austin landmarks.  For example, through his company, One Eleven Design, Joel designed the interior of one of Austin’s hippest restaurants, Uchi, and he also designed the home that was used for MTV’s “Real World” show when it came to Austin.[14]  Joel, who has an Art History degree and an MBA, never studied interior design in college; he believes that interior design is a “profession based on talent, not education.”  Joel’s talent and hard work often garner media attention, and the website Citysearch named him Austin’s best interior designer in 2006 and 2007.  But because of Texas’ unconstitutional licensing law, Joel actually has to worry about how reporters, clients or admirers describe his work:  though he is indisputably an interior designer—and an incredibly talented and successful one—the law says he must never use that term to describe what he does.

Veronica Koltuniak began her career working in set design for television and film productions in Los Angeles.  In 1990, she turned to fulltime interior design work, initially spending four years working with an architect before striking out on her own.  Veronica’s on-the-job training and natural talent for design work propelled her to the top of her craft, and she developed a client list including such celebrities as Madonna, Courtney Cox and David Arquette.  In 2000, Veronica and her husband decided he should accept a job offer in Austin, which would allow them to raise their young sons in Texas instead of in the Los Angeles area.  Little did she know that moving from California to Texas would change her title, even though she has not changed the nature of her work.  Not long after moving to Austin, Veronica returned to fulltime design work and started Veronica Koltuniak Design.  She commuted back to Los Angeles and worked with Courtney Cox on “Mix it Up,” a show that involved Courtney assisting couples, roommates or families in combining divergent decorating tastes.  Veronica was the featured designer on the first three episodes, and the Austin press picked up the story when the show premiered.  Unfortunately, instead of the great business launch this should have been, the media attention prompted the Texas Board of Architectural Examiners to send Veronica a threatening letter merely because the media accurately referred to Veronica as an “interior designer.”

Nancy Pell has spent more than three decades working in various aspects of the design field.  Since 1990, she and her husband have worked together in the design industry, expanding their small business in 2002 into Beautiful Things, a design center in League City (outside Houston) offering accessories and providing clientele the opportunity to arrange for Nancy’s interior design services.  In 1998, Nancy earned an Associate’s degree in interior design from San Jacinto College and has provided her services in some of the Houston area’s premier homes.  But she is not a state-licensed interior designer.  Thus, despite her education and experience, Texas demands that Nancy not use the term “interior design” to describe what she does, even though it is perfectly accurate.  A few years ago, Nancy’s husband, Arnold, arranged for an advertisement featuring the store and Nancy’s services, as well as a new sign for the store window.  He had no idea at the time that just accurately and truthfully describing Nancy’s work constituted a crime in the State of Texas—but he soon found that out when Nancy received two threatening letter from the Texas Board of Architectural Examiners chastising her for using the term “interior design” in her advertising and signage.  Though the Pells have been careful since then not to use the term “interior design,” lest they bring down more wrath from the censors at the Architecture Board, they find the restriction on their free speech not only ridiculous, but infuriating.

Getting a License to Speak in Texas

Texas’ speech-licensing requirements for interior designers are not easy to meet.  First, a designer must apply to the Texas Board of Architectural Examiners for permission to take a licensing exam—an exam administered not by the state, but by a private, national credentialing body called the National Council for Interior Design Qualification (NCIDQ).  Not just anyone, however, may take the NCIDQ exam.  Just to sit for the exam, NCIDQ requires people to have six years combined college-level interior design education and work experience.[15]  That education/experience requirement is reflected in Texas law, which likewise provides that applicants for an interior design speech license must have six years total combined experience and “approved interior design education.”[16]  Texas and NCIDQ require a minimum of two years of college-level education and a minimum of six months work experience under a licensed interior designer as part of that six-year combined total.[17]

The education/experience requirement is gradually becoming more difficult for would-be interior designers to navigate.  Applicants who begin acquiring work experience after January 1, 2008, will have to gain all work experience under the direct supervision of someone already holding an NCIDQ Certificate.[18]  According to ASID, “[b]y the end of the decade, NCIDQ will require the Interior Design Experience Program,” which is the NCIDQ’s own internship program, “for all examination candidates.”[19]  So, within the next few years, applicants for the NCIDQ exam will not even have the individual choice of how best to get the required work experience that will be relevant to their future careers.

The exam and application process is expensive and time consuming.  The cost of the exam alone can reach about $1,000—plus a $100 fee to Texas for permission to take the exam—and it takes two days to finish.[20]  If an aspiring designer passes the NCIDQ exam, he or she may then apply to the Texas Board of Architectural Examiners for an interior design license (which, again, is actually a speech license to use the term “interior designer”—not a license to practice interior design, for which there is currently no requirement in Texas or in 46 other states).  This involves an additional expense of at least $355 for the initial application fee and an annual renewal fee of at least $310.  And keep in mind, this is just to get permission from the state to use the words “interior designer.”[21]

Legal Challenge

The Institute for Justice’s legal challenge is straightforward:  prohibiting people from truthfully describing what they do—interior design—violates their First Amendment right to free expression.  With very narrow exceptions, all types of speech are protected by the Constitution, including so-called “commercial speech” that “does no more than propose a commercial transaction.”[22]  Thus, to regulate advertising, the government must have a substantial reason for restricting speech, and any limits must be carefully designed to actually achieve the government’s objectives while imposing only the narrowest infringement on speech.[23]

Texas’ titling law for interior designers falls woefully short of those stringent legal standards.  Instead of advancing any bona fide public purpose, titling laws are merely the first step in a carefully crafted strategy to suppress competition within the interior design industry.  As noted above, many other states have rejected similar efforts due in large part to the complete lack of evidence that there is any public harm from the unregulated practice of interior design.

Besides establishing a substantial government interest in censoring truthful speech by unlicensed interior designers—which it cannot do because no such interest exists—Texas will have to prove that its titling act directly advances the state’s asserted goals, whatever those might be, in a manner that is no broader than necessary to achieve them.  Texas will not be able to make that showing because there is simply no threat to the public from truthful communications from and advertising by interior designers—whether or not they hold a license to speak from the State of Texas.

Americans’ right to freely express themselves most certainly includes the right to truthfully provide information to potential customers and clients.  That right, enshrined in the First Amendment to the U.S. Constitution, cannot simply be brushed aside by states seeking to promote the anti-competitive agenda of the interior design cartel.  Simply put, this lawsuit will demonstrate that the First Amendment is more than mere window dressing when it comes to interior designers.

The Defendants

The defendants in this case are the nine members of the Texas Board of Architectural Examiners, who are being sued in their official capacities.  The Board, located in Austin, is responsible for registration and regulation of interior designers in Texas.  Of the nine Board members, four are architects and three are “public” members; the two remaining members are a landscape architect and a state-licensed interior designer.

IJ:  A History of Protecting Free Speech & Economic Liberty

Founded in 1991, the Institute for Justice (IJ) has represented entrepreneurs nationwide who successfully fought arbitrary government regulation, opening up long-closed markets and securing free speech rights.  These include:

Franzoy v. Templeman, et al.—The Institute for Justice represented two interior designers in challenging New Mexico’s titling law, which was very similar to Texas’ current law.  Rather than attempt to defend its blatantly unconstitutional speech restrictions, the New Mexico Interior Design Board chose to seek an amendment to the law through the legislative process, which the Governor signed in April 2007.

Swedenburg v. Kelly[24]—Representing Virginia and California vintners as well as New York wine consumers, the Institute for Justice persuaded the U.S. Supreme Court to declare unconstitutional New York State’s laws that barred the interstate direct shipment of wine to New York consumers.  IJ also persuaded the 2nd U.S. Circuit of Court of Appeals to enforce the First Amendment by striking down a prohibition on advertisements and solicitation for alcoholic beverages by anyone other than licensed retailers.

Taucher v. Born[25]—The Institute for Justice persuaded the U.S. District Court for the District of Columbia to enforce the First Amendment by striking down a regulation issued by the Commodity Futures Trading Commission that would have required publishers of financial newsletters and Internet websites to register as commodity trading advisors.

Crockett v. Minnesota Department of Public Safety—The Institute for Justice Minnesota Chapter entered into a consent judgment with the U.S. District Court for the State of Minnesota that dictated the state could not constitutionally enforce a law that forbade wineries across the country from accepting online orders from Minnesotans.  The state also conceded that it could not constitutionally prohibit wineries from truthfully advertising or soliciting the direct sale and shipment of wine, and that it could not constitutionally discriminate between in-state and out-of-state wineries (or between wineries and liquor stores) when they exercise their First Amendment rights to communicate with Minnesota consumers.

ForSaleByOwner.com Corp. v. Zinnemann[26]—The Institute for Justice persuaded the U.S. District Court for the Eastern District of California to enforce the First Amendment and strike down the State of California’s attempt to impose real estate broker licensing requirements on an informational website.

Wexler v. City of New Orleans[27]—The Institute for Justice persuaded the U.S. District Court for the Eastern District of Louisiana to enforce the First Amendment by striking down an ordinance that prohibited booksellers from selling books on city sidewalks without a permit.

Battaglieri v. Mackinac Center For Public Policy[28]—The Institute for Justice successfully defended on First Amendment grounds an invasion of privacy claim against a public policy research institute that accurately quoted a representative of the Michigan Educational Association in a letter to supporters.

Rissmiller v. Arizona Structural Pest Control Commission­—The Institute’s Arizona Chapter filed suit in 2005 challenging the Structural Pest Control Commission’s requirement that gardeners and landscapers providing weed control services must first demonstrate 3,000 hours of experience spraying weeds.  As a result of the lawsuit, the Arizona Legislature passed, and the governor signed into law on May 8, 2006, an exemption for providers of weed control services using products available to the general public over the counter.

Anderson v. Minnesota Board of Barber and Cosmetology Examiners—Filed in 2005 in the Hennepin County District Court, this case challenged Minnesota’s cosmetology regulations, which required African hairbraiders to enroll in 1,550 hours of government-mandated “training,” none of which included even one hour of instruction in braiding.  As a result of IJ’s litigation, hairbraiders in the state may now practice without obtaining a license.

Armstrong v. Lunsford—Filed in 2004 in the U.S. District Court for the Southern District of Mississippi, this case challenged Mississippi’s cosmetology regulations, which barred braiders from practicing their craft.  Prior to receiving a ruling from the court, the Mississippi Legislature exempted braiders from the cosmetology licensing requirement in 2005.  This result allows IJ’s client to continue to practice without obtaining an irrelevant license.

Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board—After IJ’s Washington Chapter filed suit against Washington State’s Department of Licensing, the Department filed an “Interpretative Statement” exempting braiders from the state’s cosmetology licensing requirements.

Christian Alf v. Arizona Structural Pest Control Commission—In 2004, based on the Institute for Justice Arizona Chapter’s work in the court of public opinion, the Commission changed its position on requiring teenage entrepreneur Christian Alf to obtain a license for his after-school handyman business helping local residents prevent roof rats.

Farmer v. Arizona Board of Cosmetology—In 2004, as a result of an IJ-AZ lawsuit, the Arizona Legislature exempted hairbraiders from the state’s outdated cosmetology scheme.

Craigmiles v. Giles[29]—This IJ suit led a federal court to strike down Tennessee’s casket-sales licensing scheme as unconstitutional, a decision that was upheld unanimously by the U.S. 6th Circuit Court of Appeals and not appealed.  This marked the first federal appeals court victory for economic liberty since the New Deal.

Clutter v. Transportation Services Authority—In 2001, IJ defeated Nevada’s Transportation Services Authority and its entrenched limousine cartel that had stifled competition in the Las Vegas limousine market.

Ricketts v. City of New York—In 1999, IJ helped commuter vans fight a public bus monopoly that would not allow vans to provide their service in underserved metropolitan neighborhoods in New York City.

Cornwell v. California Board of Barbering and Cosmetology[30]—In 1999, IJ defeated California’s arbitrary cosmetology licensing requirement for African braiders.

Jones v. Temmer—In 1995, IJ helped three entrepreneurs overcome Colorado’s protectionist taxicab monopoly to open Denver’s first new cab company in nearly 50 years.  IJ also helped break open government-sanctioned taxicab monopolies in Indianapolis and Cincinnati.

Uqdah v. D.C. Board of Cosmetology—In 1993, IJ’s work in court and the court of public opinion led the District of Columbia to eliminate a 1938 Jim Crow-era licensing law against African hairbraiders.

The Litigation Team

The lead attorney in this case is Institute for Justice Senior Attorney Clark Neily, who litigates First Amendment, economic liberty and school choice cases throughout the nation.  Most recently, Neily worked to free interior designers in New Mexico from that state’s titling law, allowing all designers in New Mexico to now truthfully advertise their services.  He will be joined in the litigation by Jennifer Perkins, staff attorney at the Institute for Justice’s Arizona Chapter in Phoenix, Arizona.  Perkins litigates First Amendment and economic liberty cases in Arizona and other nearby states.  Assisting the Institute for Justice as local counsel is Cindy Olson Bourland of the law firm Merica & Bourland, P.C., in Austin, Texas.

For more information contact:

Bob Ewing

Communications Coordinator

Institute for Justice

901 N. Glebe Rd., Suite 900

Arlington, VA  22203

(703) 682-9320

[email protected]

[1] Tex. Occ. Code Ann. §§ 1051.001, 1053.151 (2003).

[2] The other states are Connecticut, Florida, Illinois and Oklahoma.  New Mexico, which previously restricted use of these terms, changed its law in 2007 as a result of the Institute for Justice’s lawsuit filed against the New Mexico Interior Design Board in September 2006.  Oklahoma became the latest state to restrict the use of these terms with a law that goes into effect on July 1, 2007 (Okla. Stat. tit. 59, § 46.38).

[3] Truax v. Raich, 239 U.S. 33, 41 (1915) (recognizing that “the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity” that the Constitution was designed to protect).  See also Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 279-81 & n.10 (1985); Hampton v. Mow Sun Wong, 426 U.S. 88, 101-03 (1976); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

[4] Morris M. Kleiner, Licensing occupations:  Ensuring quality or restricting competition, (Kalamazoo, MI: Upjohn Institute, 2006).

[5] Dick M. Carpenter II, “Designing Cartels: How Industry Insiders Cut Out Competition,” Institute for Justice, September 2006.  Available at /index.php?option=com_content&task=view&id=1529&Itemid=194.

[6] Bradford McKee, Interior Motives, 89 Architecture, Mar. 1, 2000, at 68.

[7] ASID, “The Interior Design Profession:  Facts and Figures” at 18 (2004).

[8] Ala. Code § 34-15B-1 et seq.; Fl. Stat. §§ 481.2131 & 481.229 (exemption for residential design work); Nev. Rev. Stat. §§ 623.0225 & 623.360; La. Rev. Stat. § 37.3171 et seq. (distinguishing between “designers” and “decorators” and not regulating the latter); D.C. Code Ann. §§ 47.2853-101 (only regulating interior design work that involves health, safety or welfare).

[9] Alabama’s interior design law was declared unconstitutional by a state trial court on August 23, 2004.  The state appealed that decision, and the case is currently pending before the Alabama Supreme Court.

[10] Interior Designers—2000 Sunrise Review, Colorado Dep’t of Regulatory Agencies Office of Policy and Research at 16 (hereafter Colorado Sunrise Review).

[11] Colorado Sunrise Review at 22; see also Sunrise Review of Interior Designers, Report to House Committee on Commerce and Labor, Washington State Dep’t of Licensing, Dec. 2005 at 12 (hereafter Washington Sunrise Review) (“Current evidence does not suggest the public is being harmed by non-regulation”).

[12] See AIA Government Affairs, Licensing Discussion Materials, Mar. 1, 2002 at 4-5 (summarizing rejection of pro-licensing efforts in Colorado, California, New Jersey, Connecticut, Ohio, South Carolina and Virginia) available at http://www.aianewmexico.org/WebSiteResources/LicensingMaterials.pdf (last visited March 16, 2006).  An updated version of this document adds Maryland and Georgia to the list of states that have rebuffed efforts to seek regulation of interior designers.  See http://www.aia- ri.org/The%205%20Standards %20of%20Professional%20Regulation-2003%20update.doc (last visited March 16, 2006).

[13]  House Bill 1985 and Senate Bill 832 are companion bills, sponsored by Representative Senfronia Thompson (Houston) and Senator Eddie Lucio (Brownsville), respectively, which would make it a crime to offer interior design services in Texas without a state-issued license.

[14] Melanie Spencer, “The Mozersky treatment,” Austin American-Statesman, April 20, 2006, pg. 14.

[15] See Exam and IDEP Eligibility Requirements Chart (available at:  www.ncidq.org/pdf/eligibility_chart.pdf, accessed on April 16, 2007).

[16] Tex. Occ. Code Ann. §§ 1053.154,155; 22 Tex. Admin. Code §§ 5.31, 5.51.

[17] 22 Tex. Admin. Code § 5.51(b).

[18] See Exam and IDEP Eligibility Requirements (available at:  www.ncidq.org/exam/examreq.htm, accessed on April 16, 2007).

[19] ASID, “The Interior Design Profession:  Facts and Figures” at 36 (2004).

[20] See Exam Information (available at www.ncidq.org/exam/examinfo.htm, accessed on April 16, 2007).

[21] See www.tbae.state.tx.us/documents/FeeSchedule.pdf (accessed on April 16, 2007).

[22] Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 385 (1942).

[23] Piazza’s Seafood World v. Odom, 448 F.3d 744, 752-53 (5th Cir. 2006) (citing Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 566 (1980)).

[24] 358 F.3d 223 (2nd Cir. 2004), aff’d 544 U.S. 460 (2005).

[25] 53 F. Supp.2d 464 (D.D.C. 1999).

[26] 347 F. Supp.2d 868 (E.D. Cal. 2004).

[27] 267 F. Supp.2d 559 (E.D. La. 2003).

[28] 680 N.W.2d 915 (Mich. Ct. App. 2004).

[29] 312 F.3d 220 (6th Cir. 2002).

[30] 80 F. Supp.2d 1101 (S.D. Cal. 1999).