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Safelite Group, Inc. v. Rothman

United States District Court, D. Minnesota

January 23, 2017

Safelite Group, Inc. and Safelite Solutions LLC, Plaintiffs,
v.
Michael Rothman, in his official capacity as the Commissioner of the Minnesota Department of Commerce, Defendant.

          Jay P. Lefkowitz, Christian R. Reigstad, and Steven J. Menashi, Kirkland & Ellis, John E. Iole, Jones Day, Emily Unger and Richard D. Snyder, Fredrikson & Byron, PA for Plaintiffs.

          Oliver J. Larson and Michael J. Tostengard for Defendant.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, United States District Judge

         This matter is before the Court on the Motion for Summary Judgment filed by Plaintiffs Safelite Group, Inc. and Safelite Solutions LLC (“Pls.' Mot. for Summ. J.”) [Doc. No. 69]. For the reasons set forth below, Plaintiffs' Motion is granted in part and denied in part.

         I. BACKGROUND

         A. Facts

         The material facts of this matter are undisputed. Rather, the parties dispute the legal significance of certain facts and which facts are relevant. The Court notes these disputes where necessary to its analysis.

         1. The Parties and Relevant Third Parties

         Plaintiffs Safelite Group, Inc. and Safelite Solutions LLC (collectively, “Safelite”) are nationwide companies that provide two relevant services-auto-glass replacement and repair and claims administration services for insurance companies. (First Decl. of Brian D. O'Mara (“First O'Mara Decl.”) at ¶ 3 [Doc. No. 15].) Safelite provides these services in Minnesota, including claims administration for third-party insurers Auto Club Group, Inc. (“AAA”), USAA, and American Family Insurance (“American Family”). (Id. at ¶¶ 3, 6; Decl. of Oliver J. Larson (“Larson Decl.”) [Doc. No. 77], Ex. 3 (“Fleischhacker Dep.”) at 53[1] [Doc. No. 78]; Hr'g Tr. dated 8/5/2016 (“Hr'g Tr.”) at 42 [Doc. No. 88].) In its claims administration role (sometimes referred to as being a “third-party administrator”), Safelite oversees a network of non-Safelite auto-glass replacement and repair shops (the “Network”). (First O'Mara Decl. at ¶ 7.) There is no cost for an auto-glass shop (“shop” or “vendor”) to apply to or join the Network. (Id.) However, important to the present matter, a shop must agree and adhere to pricing-terms for its repair work (i.e., agree to charge only certain amounts for particular repair or replacement jobs) before being allowed to join the Network.[2] (Id.) Shops that are not part of Safelite's Network are generally referred to as “non-Network” or “independent” shops.

         Third-parties Alpine Glass, Inc. (“Alpine”) and BuyRite Auto Glass, Inc. d/b/a/ Rapid Glass (“Rapid”) are Minnesota glass shops owned by Michael Reid (“Reid”) and Rick Rosar (“Rosar”), respectively. (Larson Decl., Ex. 6 (“Reid Dep.”) at 10 [Doc. No. 78], Ex. 7 (“Rosar Dep.”) at 11 [Doc. No. 78].) Alpine and Rapid (collectively, the “Minnesota Shops”) are non-Network shops. (Reid Dep. at 51; Rosar Dep. at 29.) The Minnesota Shops belong to the Minnesota Glass Association (“MGA”), which at the relevant time employed Michael Schmaltz (“Schmaltz”) as its executive director. (See Larson Decl., Ex. 5 (“Schmaltz Dep.”) at 10, 14 [Doc. No. 78].)

         During the relevant period, Martin Fleischhacker (“Fleischhacker”) was the Director of Investigations for Minnesota's Department of Commerce (the “DOC”). (See Fleischhacker Dep. at 11.) Theodore “T.J.” Patton was a DOC Investigator. (See Larson Decl., Ex. 4 (“Patton Dep.”) at 10 [Doc. No. 78].)

         2. Balance Billing

         In Minnesota, insureds have the right to select whatever shop they wish to perform auto-glass repair or replacement work. See Minn. Stat. § 72A.201, subd. 6(7), (14). However, insurers are only required to pay the selected shop a “competitive price that is fair and reasonable within the local industry at large[, ]” for the work performed. Minn. Stat. § 72A.201, subd. 6(14). If a shop and an insurer disagree on the fair price, the issue is subject to arbitration. See Minn. Stat. §§ 65B.525, 72A.201, subd. 6(14). This system creates the potential for shops to pursue insureds for the difference between what the shop charges and the insurer pays-a practice known as “balance billing.” The DOC acknowledges that balance billing is legal in Minnesota. (Fleischhacker Dep. at 69-70, 74; Patton Dep. at 135.) To the best of their knowledge, Reid and Rosar agree this practice is legal. (Reid Dep. at 59; Rosar Dep. at 42-44.)

         In the case of shops within Safelite's Network, the price for auto-glass repair work is set by contracts between the insurers and the shops. (First O'Mara Decl. at ¶ 7.) Thus, when an insured selects a Network shop, he/she is only charged the amount the insurer is willing to pay and there is no risk of balance billing. However, non-Network shops are free to charge whatever price they wish, even if it is more than the insurer considers fair and will pay. (See Reid Dep. at 58; Rosar Dep. at 40-41.) It is possible that a non-Network shop may balance bill the insured the difference between the price it charges and the amount the insurer ultimately pays. (See Reid Dep. at 60; Rosar Dep. at 50-51.) At least some Minnesota non-Network shops reserve the right to bill customers for amounts not paid by insurers. (See Decl. of Christian Reigstad (“Reigstad Decl.”) [Doc. No. 72], Exs. 5-17[3](“Non-Network Shop Invoices With Balance Billing Language”) at 1-27 [Doc. No. 72-2]; Fleischhacker Dep. at 106.) Others do not. (See Larson Decl., Ex. 15 (“Non-Network Shop Invoices Without Balance Billing Language”) at 17-40 [Doc. No. 84].)

         Reid and Rosar testified that their shops do not balance bill. (Reid Dep. at 59; Rosar Dep. at 51-52.) Instead, they write off the amount they are short paid or take assignment of the policy and attempt to collect the difference from insurers through arbitration. (Larson Decl., Ex. 10 (“Reid Aff.”) at ¶ 7 [Doc. No. 80]; Rosar Dep. at 129-30.) Reid, Rosar, and Schmaltz claim that no Minnesota shops actually practice balance billing, but admit they do not know the billing practices of all-or even most-shops. (See Reid Aff. at ¶ 8; Reid Dep. at 61, 68-69; Rosar Dep. at 47-50; Schmaltz Dep. at 107-08.) However, there is evidence in the record that on at least two occasions, non-Network shops balance billed an insured and attempted to collect on that bill. (Reigstad Decl., Exs. 41, 42 (“NCA Collection Letters”) [Doc. No. 72-7].)

         3. Safelite's Claims Administration and the Relevant Statutory Provisions

         Safelite, in conjunction with the insurers for whom it provides claims administration services, develops scripts to use when insureds call to report an auto-glass claim. (First O'Mara Decl. at ¶ 8 [Doc. No. 43].) Minnesota law also requires Safelite to make certain statements and refrain from certain behavior during these calls. See Minn. Stat. § 72A.201, subd. 6. The Court turns to the provisions of that statute that are relevant here.

         First, although Safelite is not prohibited from recommending a vendor to an insured, before doing so, it must “offer [the] insured the opportunity to choose the vendor.” Minn. Stat. § 72A.201, subd. 6(14). Furthermore, if Safelite does recommend a vendor, it must also give this advisory: “Minnesota law gives you the right to go to any glass vendor you choose, and prohibits me from pressuring you to choose a particular vendor.” Id. (hereinafter, the “Mandatory Advisory”). Second, Safelite is prohibited from “engaging in any act or practice of intimidation, coercion, threat, incentive, or inducement for or against an insured to use a particular company or location to provide the motor vehicle glass repair or replacement services or products.” Minn. Stat. § 72A.201, subd. 6(16) (hereinafter, the “Anti-Coercion Provision”).

         Safelite avers that its scripts and claims administration processes in Minnesota comply with these statutory requirements. (See First O'Mara Decl. at ¶ 9.) According to Safelite, insureds often ask for shop recommendations. (See id. ¶ 10.) When this occurs, Safelite will recommend one of its own shops, or a shop within the Network. (Id. at ¶ 11.) If the insured announces he/she has already selected a non-Network shop, Safelite informs the insured that he/she may be balance billed for any difference between what that shop charges and what the insurer pays. (Reigstad Decl., Ex. 19 (“Sample Safelite Script”) at ¶ 0027[4] [Doc. No. 72-3] (“[I]f you still wish to use this shop, you may be responsible for any additional charges.”), Ex. 44 (“Safelite's American Family Script”) at ¶ 0012 (same) [Doc. No. 72-10]). Safelite's scripts also communicate the Mandatory Advisory. (See Sample Safelite Script at ¶ 0020; Safelite's American Family Script at ¶ 0008.)

         4. The Minnesota Shops' Early Efforts to Have Safelite Investigated

         The Minnesota Shops believe Safelite is responsible for driving down the price of auto-glass repair and replacement in Minnesota and taking business from them by “steering” customers to Safelite or Network shops. (Reid Dep. at 21-22; Rosar Dep. at 82, 113-114.) Relevant here, the Minnesota Shops believe that Safelite tells insureds that they will or may be balance billed by non-Network shops in an effort to encourage them to choose Safelite or Network shops. (Reid Dep. at 22; Rosar Dep. at 114.) Since the early 2000s, the Minnesota Shops-along with their attorney, Charles Lloyd (“Lloyd”), and Schmaltz-have regularly complained to the DOC about Safelite. (See Rosar Dep. at 124; Schmaltz Dep. at 126; Fleischhacker Dep. at 31.) The DOC did not act on any of the Minnesota Shops' early complaints because it lacked “evidence of deceptive or misleading statements made as part of [Safelite's alleged] steering efforts.” (Larson Decl., Ex. 8 (“Fleischhacker Decl.”) at ¶ 3 [Doc. No. 79]; see Fleischhacker Dep. at 60; Schmaltz Dep. at 75-76; Rosar Dep. at 137.)

         Apparently, the DOC “often receives complaints from companies alleging that a competitor is competing unfairly or is engaged in unfair practices with respect to consumers.” (Fleischhacker Decl. at ¶ 3.) The DOC “investigates these complaints on their merits, as it would a complaint from any other source.” (Id.) However, and important to this matter, there is no evidence the DOC ever received any complaint from a consumer/insured regarding Safelite's claims administration practices. (See Fleischhacker Dep. at 50 (admitting he is unaware of any complaints from consumers about Safelite's claims administration practices); Reigstad Decl., Ex. 22 (“DOC's Interrog. and Req. for Admis. Resp.”) at 14 (“[T]he Department has not received any complaints directly from consumers regarding Safelite's auto glass claims administration practices.”) [Doc. No. 72-5].)

         5. The DOC Decides to Investigate Safelite and Its Insurers

         Things changed in 2013 when Fleischhacker-after Reid again came to him with complaints about Safelite-decided to use the replacement of his own recently damaged windshield as the opportunity to investigate the Minnesota Shops' claims about Safelite. (Fleischhacker Dep. at 140-41.) Fleischhacker agreed to have Alpine replace his windshield and he and Reid called Safelite to report the claim.[5] (Id. at 141.) Fleischhacker did not identify himself as a DOC employee on the call. (Id. at 142.) At his deposition, Fleischhacker could not recall exactly what the Safelite representative said to him, but did remember:

feeling like I was being pressured not to use [Alpine] and . . . if, you know, I were somebody who didn't know the true facts of, you know, what - what the law allows me to do, that I would be persuaded to ask a lot more questions and probably ask for options beyond [Alpine].

(Id. at 143.) Surprisingly, four months after his deposition, Fleischhacker apparently remembered more details about this call and stated in a written declaration: “At multiple points in the call the Safelite [] representative warned me that I might be balance billed by Alpine despite Alpine's explicit representation that it would not. I found these representations to be deceptive, coercive, and potentially confusing.[6]” (Fleischhacker Decl. at ¶ 7 (emphasis added).)

         After the call, Reid wrote Fleischhacker to thank him for his business and request a meeting to discuss Safelite's efforts to steer insureds away from non-Network shops. (Reigstad Decl., Ex. 23 (“Fleischhacker-Reid Emails”) at 22-23 [Doc. No. 72-5].) Fleischhacker agreed and met with Reid and Lloyd in October of 2013 to discuss their concerns about Safelite. (Id.; Fleischhacker Dep. at 158.) According to Reid, at this meeting, Fleischhacker announced he wanted to “slap” Safelite with a cease and desist order and “get Safelite out of Minnesota.” (Reid Dep. at 102-03, 107; Reigstad Decl., Ex. 24 (“Nov. 7, 2013 Minnesota Shops Conf. Call Tr.”) at 9 [Doc. No. 72-6]; see Nov. 7, 2013 Minnesota Shops Conf. Call Tr. at 4 (Reid stating that Fleischhacker was “already talking about doing a cease and desist order”).) Fleischhacker denies he made these statements. (Fleischhacker Dep. at 159-60, 173-74.) Reid also claims that he made a “deal” with Fleischhacker whereby the Minnesota Shops would collect information about Safelite's practices and funnel it to the DOC. (Reid Dep. at 96.) Fleischhacker denies having a “deal” with Reid, but admits he may have agreed that Reid could send him additional evidence about Safelite's steering practices. (See Fleischhacker Dep. at 169-72.)

         Shortly after the October 2013 meeting, Reid, Rosar, and Schmaltz held a conference call. (See Nov. 7, 2013 Minnesota Shops Conf. Call Tr.) Rosar noted the Minnesota Shops had a “fresh ear” with the DOC. (Id. at 4.) They agreed to focus the DOC's attention on Safelite and not to “inundate” it with complaints, but rather only pass along “really good” or “extra special” recordings of Safelite allegedly violating the law. (See id. at 6-7, 14; Reid Dep. at 112; Rosar Dep. at 201.)

         6. The DOC's Investigation and the Allegedly Offending Calls and Scripts

         In early 2014, the DOC formally launched an investigation into Safelite and some of the insurers who used it as a claims administrator-namely, AAA, USAA, and American Family. (Fleischhacker Decl. at ¶ 11; Larson Decl., Ex. 9 (“Patton Decl.”) at ¶ 2 [Doc. No. 79].) Patton was the primary investigator. (See Patton Decl. at ¶ 2; Fleischhacker Dep. at 55.) The DOC served administrative subpoenas on Safelite, AAA, and American Family, to which AAA and American Family responded. (Patton Decl. at ¶ 3.) Safelite objected to the subpoenas and did not respond, but the DOC did not immediately act to enforce the subpoenas.[7] (See Reigstad Decl., Ex. 34 (“Safelite's Objs.”) at 18-19 [Doc. No. 72-7]; Def.'s Ans. at ¶ 2 [Doc. No. 45].) Instead, the DOC threatened Safelite with a cease and desist order that would prevent it from doing business in Minnesota if Safelite did not respond to the subpoenas. (See Reigstad Decl., Ex. 35 (“Ltr. dated 6/5/2014”) at 22 [Doc. No. 72-7]; Fleischhacker Dep. at 232-33.) However, the DOC ultimately did not issue a cease and desist order against Safelite. Despite the DOC's concern “that Safelite isn't cooperating with our subpoena but is nonetheless expanding their presence in [Minnesota][, ]” the DOC elected not to pursue enforcement actions directly against “the elephant in the room” (Safelite), but rather “go after [the insurers] using Safelite as a [claims administrator] one by one.”[8] (See Reigstad Decl., Ex. 36 (“Internal DOC Emails”) at 29 [Doc. No. 72-7].)

         During its investigation, the DOC inspected scripts used by Safelite for its various insurer clients. Some of the AAA scripts required Safelite to inform insureds, who selected non-Network shops, that AAA would only pay a certain amount and that AAA “will require [the insured] to pay” any difference between that amount and the amount the non-Network Shop charged. (Larson Decl., Ex. 9J at DOC 5403, 5419, 5435, 5469, 5485, 5503, 5519, 5537, 5555, 5573[9] (“Safelite's AAA Scripts”) [Doc No. 79], Ex. 12 at 17[10] [Doc. No. 80].)

         Patton also listened to at least 100 calls between Safelite, insureds, and at times, representatives of non-Network shops. (Patton Decl. at ¶ 5.) These recordings were either provided by the Minnesota Shops, or by the insurers in response to the DOC's administrative subpoenas. (Id. at ¶ 4.) In this case, the DOC produced transcripts for six of the calls it reviewed. (See Patton Decl., Ex. D-I (“Safelite Call Trs.”) at 25-100 [Doc. No. 79].) These calls followed a consistent pattern. A representative of one of the Minnesota Shops and an insured would call Safelite to report an auto-glass claim. Safelite would inform the insured of his/her right to choose a shop to perform the repairs. However, Safelite would also inform the insured that if the Minnesota Shop charged more for the repair/replacement than the insurer deemed competitive or fair (i.e., what the insurer was obligated to pay under the policy), the insured might be balance billed.[11] The Minnesota Shop would then inform the insured that he/she would not be balance billed. On some of these calls, Safelite continued to warn the insured about balance billing even after the Minnesota Shop represented that it would not balance bill the insured.

         Important here, during four of the six calls produced, Safelite stated that an insured “may” or “might” be balance billed. (Safelite Call Trs. at 50, 55, 68, 94.) On one call, after first saying the insured might be balance billed, the Safelite representative went on to say: “This means that you'll incur the cost of any charges that this [non-Network] shop may charge above [the insurer's] pricing.” (Id. at 80, 82.) However, on only one of the six calls did Safelite exclusively declare that an insured would be balance billed. (Id. at 36 (“So, [insured], just make sure [the price the Minnesota Shop charges] doesn't exceed [the price the insurer is willing to pay], because if it does exceed that, you would be required to pay the difference out-of-pocket. Okay, [insured]?”).)

         According to the DOC, these calls show that, “Where insureds expressed their intent to use a [non-Network shop], Safelite [] consistently attempted to persuade the insured into using a [Safelite or Network shop] by representing that the insured risked being balance billed for amounts the [non-Network] shop might charge beyond those deemed reasonable by Safelite[.]” (Patton Decl. at ¶ 6; see Fleischhacker Decl. at ¶ 13.) The DOC also concluded that the actual practice of balance billing in Minnesota is uncommon, if it occurs at all. (See Fleischhacker Decl. at ¶ 12; Patton Decl. at ¶ 8.) However, the DOC admits that it is unfamiliar with the billing practices of most Minnesota shops and reached this conclusion primarily based on representations from Reid, Rosar, Schmultz, and a few others affiliated with Minnesota's auto-glass industry. (Fleischhacker Dep. at 77-80, 84-86; Patton Dep. at 134-35.)

         Throughout the investigation, the Minnesota Shops repeatedly contacted the DOC. (See, e.g., Reigstad Decl., Ex. 26 (“August 2014 Emails”) [Doc. No. 72-6], Ex. 27 (“November 2014 Emails”) [Doc. No. 72-7].) They expressed their hope that the investigation would benefit non-Network shops financially “as [they] have provided a lot of information to help with the investigation.” (November 2014 Emails at 24.) Patton would periodically give the Minnesota Shops updates on the investigation and even shared confidential information about the status and likely outcome. (See, e.g., Reigstad Decl., Exs. 28-31 (containing emails from Patton to the Minnesota Shops) [Doc. No. 72-6].) Sharing confidential information in this way with competitors was contrary to the DOC's policies and procedures. (See Fleischhacker Dep. at 24, 206-07.)

         7. The Consent Order

         Ultimately, the DOC concluded its investigation into AAA with a consent order, executed on January 8, 2015.[12] (Reigstad Decl., Ex. 37 (“Consent Order”) [Doc. No. 72-7].) The DOC alleged, in relevant part, that it was “prepared to commence formal action” against AAA because:

[AAA's] glass administrator and its affiliated entities (collectively, “Safelite”), while administrating automobile glass claims, failed to provide the required advisory to insureds before recommending the use of [AAA's] network of preferred glass vendors;
[AAA's] glass administrator Safelite, while administering automobile glass claims, advised that insureds may be balance billed by non-preferred glass vendors;

(Id. at 32-33 (emphasis added).) According to the DOC, this conduct violated Minn. Stat. § 72A.201, subd. 6(14) (the Mandatory Advisory) and 6(16) (the Anti-Coercion Provision). (Id. at 33.) In exchange for the DOC not pursuing an enforcement action against it, AAA agreed to drop Safelite as its claims administrator in Minnesota and “cease and desist from informing insureds they . . . may be balance-billed by non-preferred glass vendors, unless [AAA] [has] specific information proving the assertion(s) to be true for a certain vendor.” (Id. at 34 (emphasis added).)

         Equally important here is what the Consent Order does not address. It does not purport to act on Safelite's occasional assertions that insureds “would” or “will” be balance billed-rather, it specifically addresses Safelite's suggestions that insureds “may” be balance billed. Nowhere does the Consent Order contend that Safelite's statements in the claims administration process caused insureds to be confused or deceived, or that the DOC received any complaints to this effect.[13]

         The DOC never involved Safelite in its negotiations regarding the Consent Order- in fact, Safelite was unaware of those negotiations. (See Reigstad Decl., Ex. 38 (“Gergen Dep.”) at 41-42, 85-86 [Doc. No. 72-7], Ex. 39 (“Ltr. dated 1/20/2015”) at 48 [Doc. No. 72-7].) Safelite did not learn about the Consent Order until weeks after it was executed. (See Gergen Dep. at 41-42, 85-86; Ltr. dated 1/20/2015 at 48.) Despite Safelite's disagreement with the DOC's position in the Consent Order, to allow for an opportunity to negotiate, Safelite offered to temporarily change its call scripts to “eliminate information to policyholder [sic] regarding payments by shops, and . . . reposition the specific statutory statement.[14]” (Ltr. dated 1/20/2015 at 48.) The DOC never responded.

         B. Procedural History

         Safelite brought suit against the DOC on April 7, 2015 asserting claims under the First Amendment, Fourteenth Amendment (due process), and dormant Commerce Clause. (Compl. [Doc. No. 1].) Specifically, Safelite sought: (1) a declaratory judgment that the DOC's enforcement of Minn. Stat. § 72A.201 (both the Mandatory Advisory and the Anti-Coercion Provision) was an unconstitutional limitation on Safelite's free speech rights (see id. at ¶¶ 48-60); (2) a determination that the Consent Order's provision forcing AAA to drop Safelite as a claims administrator was a due process violation (see id. at ¶¶ 61-71); (3) a declaratory judgment that the DOC's enforcement of Minn. Stat. § 72A.201 was unconstitutional under the dormant Commerce Clause (see id. at ¶¶ 72-78); and, (4) a ruling that the DOC's enforcement of Minn. Stat. § 72A.201 violated 42 U.S.C. § 1983 and that Safelite was entitled to attorneys' fees pursuant to 42 U.S.C. § 1988. (See id. at ¶¶ 79-85.) Apparently the parties resolved Safelite's due process claims, leaving only its First Amendment and dormant Commerce Clause claims. (See Pls.' Mem. in Supp. at 11 [Doc. No. 71].) As relief, Safelite requests a permanent injunction prohibiting the DOC from enforcing Minn. Stat. § 72A.201[15] in ways that unconstitutionally restrict Safelite's speech and an order requiring that the DOC agree to dissolve or never enforce the Consent Order. (Compl., Prayer for Relief.)

         Shortly after Safelite filed suit, the DOC brought an administrative action against Safelite alleging various legal violations related to Safelite's claims administration processes-but not alleging any violations related to balance billing-and seeking to enforce the DOC's earlier subpoena. (Reigstad Decl., Ex. 40 (“ALJ's Recommended Order”) at 53-54 [Doc. No. 72-7].) The administrative law judge (“ALJ”) recommended that all of the DOC's charges be dismissed and that it be prohibited from forcing Safelite to comply with the subpoenas. (See id. at 56-62.) However, the DOC elected to disregard the ALJ's recommendation and instead proceed to a hearing. (Reigstad Decl., Ex. 57 [Doc. No. 72-11].) The record does not indicate what the ultimate disposition of this hearing was, assuming the hearing has occurred.

         Safelite now moves for summary judgment on its remaining First Amendment and dormant Commerce Clause claims. (Pls.' Mot. for Summ. J.) It filed a Memorandum in Support, (Pls.' Mem. in Supp.), as well as a Reply in Support of its motion. (Pls.' Reply [Doc. No. 85].) The DOC filed a Memorandum in Opposition. (Def.'s Mem. in Opp. [Doc. No. 76].)

         II. DISCUSSION

         A. Legal Standard

         Summary judgment is proper if, drawing all reasonable inferences in favor of the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1107 (8th Cir. 2016). “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.'” Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).

         The party moving for summary judgment bears the burden of showing that the material facts in the case are undisputed. Id. at 323. However, a party opposing summary judgment “‘may not rest upon the mere allegation or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial, ' and ‘must present affirmative evidence in order to defeat a properly supported motion for summary judgment.'” Ingrassia v. Schafer, 825 F.3d 891, 896 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 256-57). “[T]he nonmoving party must ‘do more than simply show that there is some metaphysical doubt as to the material facts.'” Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 910 (8th Cir. 2010) (quoting Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Summary judgment is proper where the non-moving party fails “‘to make a showing sufficient to establish the existence of an element essential to that party's case . . . .'” Walz v. Ameriprise Fin., Inc., 779 F.3d 842, 844 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 322). While the moving party bears the burden of showing that the facts are undisputed, a judge is not confined to considering only the materials cited by the parties, and “it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

         B. Standing and the Scope of Safelite's First ...


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