The Fourth Circuit denied serial applications from CCL to first rehear the case en banc and then to stay its mandate pending a petition for certiorari in the U.S. Supreme Court in the law firm's challenge to a West Virginia restrictive advertising statute that the district court held violated the First Amendment.

      In its rehearing petition and its stay motion, CCL argued that Supreme Court precedent does not permit a state to prohibit certain words, truthfully used, from only some speakers and also prohibits the state from requiring advertising include such substantial disclaimers that it blots out the speaker's message. The underlying statute bans the word "recall" from attorney drug and medical device case advertising, even though the word is accurately used when a manufacturer recalls a product for violating federal law. When a recall is issued, both the Food & Drug Administration and the manufacturer put out press releases and website information that the drug or medical device was recalled. Only lawyers advertising for clients injured by those devices cannot tell consumers that the product was recalled. Under Supreme Court precedent, that type of prohibition constitutes a form of content discrimination that is rarely justified. Even so, the Fourth Circuit permitted the statute to stand because it was concerned that "medically unsophisticated" persons would misinterpret the words and stop taking medication on the basis of the advertising, but, apparently, not on the basis of the FDA and manufacturers' use of the term.

     In addition, the Fourth Circuit failed to address CCL's argument that 30 seconds of disclaimers, which would take up the entirety of a television or radio advertisement was unduly burdensome in violation of other Supreme Court precedent. 

      A petition for certiorari in the case is due in late August.