Term: 2009
Docket: 08-1119
Milavetz, Gallop & Milavetz, P. A., Et Al. v. United States
- Pro
08-1119 MILAVETZ V. UNITED STATES DECISION BELOW: 541 F.3d 785 CONSOLIDATED WITH 08-1225 FOR ONE HOUR ORAL ARGUMENT CERT. GRANTED 6/8/2009 QUESTION PRESENTED: The Petitioners brought this civil action based upon Respondent's overbreadth and vagueness of subjectivity in whether attorneys are debt relief agencies, and if so the provisions of Section 526(a)(4) and Section 528(a)(2), (b)(4) are unconstitutional. The district court concluded that attorneys are not debt relief agencies and that the challenged sections were unconstitutional as applied to attorneys. P.A. 74a-88a. The Petitioners petitioned this Court for review because the Eighth Circuit's ruling confirming that Section 526(a)( 4) is unconstitutional and reversing that attorneys are debt relief agencies. Section 526(a)(2), (b)(4) is constitutional is inconsistent with decisions of other courts. A decisions by this Honorable Court is necessary to protect the freedom of speech and due process rights of the attorney petitioners and other attorneys throughout the United States. Further, and most important a decision will protect Petitioners' John Doe, Mary Roe and the rights of other members of the public to receive constitutionally protected speech from attorneys regarding their rights and responsibilities. Three questions are presented: 1. Whether the appellate court's interpretation of attorneys as "debt relief agencies" is contrary to the plain meaning of 11 U.S.C. § 101(I2A). 2. Whether 11 U.S.C. § 528, which as applied to attorneys, restrains commercial speech by requiring mandatory deceptive disclosures in their advertisements, violates the First Amendment free speech guarantee of the United States Constitution. 3. Whether 11 U.S.C. § 528 requiring deceptive disclosures in advertisements for consumers and attorneys, violates Fifth Amendment Due Process. LOWER COURT CASE NUMBER: 07-2405
The Milavetz, Gallop & Milavetz, P.A., et al. v. United States case in 2009 revolved around the interpretation of two provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) that regulate attorneys acting as "debt relief agencies." The law firm Milavetz, Gallop & Milavetz argued that these provisions violated their First Amendment rights by restricting their advice to clients and requiring certain disclosures in advertisements. However, the Supreme Court unanimously ruled against them on both counts. It held that BAPCPA's requirement for debt relief agencies to advise individuals considering bankruptcy about all available options was not overly restrictive because it only applied when there was a reasonable expectation of filing for bankruptcy and did not prevent advising clients to incur more debt when necessary under law. Additionally, they found no issue with BAPCPA’s disclosure requirements since they were reasonably related to preventing consumer deception.
In the dissenting opinion for Milavetz, Gallop & Milavetz, P. A., et al. v. United States (2009), Justice Clarence Thomas argued that the majority's interpretation of "debt relief agency" under 11 U.S.C §101(12A) was too broad and could potentially include any person who provides bankruptcy assistance to an assisted person in return for payment. He contended that this definition should only apply to those whose primary business is providing such services, not attorneys or law firms like Milavetz which offer a wide range of legal services beyond just bankruptcy assistance. Furthermore, he disagreed with the majority's view on disclosure requirements under 11 U.S.C §528(a)(4). He believed these provisions were content-based regulations subject to strict scrutiny rather than intermediate scrutiny as determined by the majority because they compel speech from certain speakers while exempting others based solely on their identity.
