The New York State Consumer Protection Board said as to section 2610(b), when it was proposed, that:
The bill prohibits a practice which has been reported to the Board wherein an insurer, having a tie-in agreement with an auto body repair shop, will unduly coerce a consumer to have the repairs effected at a shop selected by the insurer.
According to the New York Insurance Department, the “complaints received by this Department indicate that the consumer is left to deal with a body shop which has no interest in satisfying its customers.” Thus, section 2610 in both of its subsections is a consumer protection law prohibiting insurers from requiring repairs to be made at a particular shop and from coercing their insureds to have the repairs effected at a particular shop. This seems to be very much a regulation of the business of insurance which by the MeCarron-Fer-guson Act is subject to the laws of the several states and cannot be impaired or superseded by any act of Congress. See 15 U.S.C. § 1012 (2000). Circular Letter 4 simply spells out for insurers what they can and cannot do as to “steering”:
Insurers may maintain a repair program and in the ordinary course of business disseminate directly or through their agents information and literature fully describing the program’s existence and benefits, to prospective customers, to applicants and to policy holders. It is understood that sales or renewal materials of this kind may reach a policy holder who has a pending claim. Consistent with paragraph 1 above, however, literature referring to any repair program or insurer guarantees concerning repairs, should not be knowingly distributed to a policy holder once a claim has been reported.
It seems to me that section 2610(b) and the interpretation of it that is contained in Circular Letter 4 are entirely consistent with the First and Fourteenth Amendments to the U.S. Constitution in that there is a substantial state interest in protecting the right of insureds to select their own repair shop. Indeed, twenty-nine states other than New York also have laws *156prohibiting insurers from requiring repairs to be made at a particular shop. Section 2610(b) directly and materially advances the state’s interest by protecting insureds against coercion by insurers, and that section is sufficiently narrowly drawn so as to comply totally with Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) and its progeny. I would, therefore, have little problem in signing a judgment of reversal.
My colleagues prefer, however, to take the cautious — some would say “prudent”— course of certifying to the New York Court of Appeals the questions they propose. I would hope that the very act of certification, if the New York Court of Appeals grants it, will not induce that court to give a narrow interpretation to what the New York legislature thought was a salutary consumer protection bill merely on the basis that it conceivably could fall under the protection of commercial free speech. Certainly the GEICO case presents a proposed endorsement which, in my view, clearly violates not only section 2610(b) but also section 2610(a) in that it requires the insured to agree that “covered repairs will be completed at a repair shop recommended by us” with the penalty that, if the insured does not do so, he “will be paid the amount of the estimate prepared by us and/or the preferred repairer.”
I concur with Judge Calabresi that the case should be certified, with the caveats hereby expressed.