Bristol-Myers Squibb Company v. Clare Connors ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRISTOL-MYERS SQUIBB COMPANY; No. 20-15515
SANOFI-AVENTIS U.S. LLC; SANOFI
US SERVICES INC., FKA Sanofi- D.C. No.
Aventis US Inc.; SANOFI- 1:20-cv-00010-
SYNTHELABO LLC, JAO-RT
Plaintiffs-Appellants,
v. OPINION
CLARE E. CONNORS, in her official
capacity as the Attorney General of
the State of Hawaii,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Jill Otake, District Judge, Presiding
Argued and Submitted September 14, 2020
San Francisco, California
Filed October 29, 2020
Before: Paul J. Watford, Michelle T. Friedland, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Miller
2 BRISTOL-MYERS SQUIBB V. CONNORS
SUMMARY *
Younger abstention
The panel affirmed the district court’s dismissal of a
lawsuit brought by several pharmaceutical companies
seeking an injunction against state court litigation involving
Plavix, a medication introduced to the market in 1997 to help
prevent heart attacks and strokes.
In 2014, the State of Hawaii filed suit in state court
against the pharmaceutical companies that produce Plavix
alleging the companies knew that those with a certain
genetic variation, a group that includes a significant portion
of Hawaii’s population, experience worse clinical outcomes
when taking Plavix. The State asserted that the companies
had intentionally concealed that fact in violation of Hawaii’s
statute prohibiting unfair or deceptive acts or practices in
commerce. In January 2020, the companies turned to federal
court to seek an injunction against the state proceeding
which, they argued, violated their First Amendment rights.
The district court dismissed the suit, concluding that
Younger v. Harris, 401 U.S. 37 (1971), required it to abstain
from exercising jurisdiction.
In affirming the district court, the panel held that even
though the state proceeding was being litigated by private
counsel, it was still an action brought by the State in its
sovereign capacity. The panel held that what matters for
Younger abstention is whether the state proceeding falls
*
This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the reader.
BRISTOL-MYERS SQUIBB V. CONNORS 3
within the general class of quasi-criminal enforcement
actions—not whether the proceeding satisfies specific
factual criteria. Looking to the general class of cases of
which this state proceeding was a member, the panel
concluded that Younger abstention was appropriate. The
State’s action was brought under a statute that punishes those
who engage in deceptive acts in commerce, and the State
sought civil penalties and punitive damages to sanction the
companies for their allegedly deceptive labeling practices.
The panel rejected the companies’ argument that a more
intense scrutiny was warranted because First Amendment
interests were at stake. The panel further held that the
companies’ First Amendment concerns did not bring this
case within Younger’s extraordinary circumstances
exception, which permits federal jurisdiction where the
danger of irreparable loss is both great and immediate.
COUNSEL
Anand Agneshwar (argued), Arnold & Porter Kaye Scholer
LLP, New York, New York; Daniel Pariser, Robert N.
Weiner, and Sally L. Pei, Arnold & Porter Kaye Scholer
LLP, Washington, D.C.; Paul Alston and Louise K. Ing,
Dentons US LLP, Honolulu, Hawaii; for Plaintiffs-
Appellants.
T.F. Mana Moriarty (argued), Bryan C. Yee, and James C.
Paige, Deputy Attorneys General; Nicholas M. McLean,
Deputy Solicitor General; Lawrence L. Tong, Senior Deputy
4 BRISTOL-MYERS SQUIBB V. CONNORS
Attorney General; Department of the Attorney General,
Honolulu, Hawaii; for Defendant-Appellee.
OPINION
MILLER, Circuit Judge:
After the State of Hawaii sued several pharmaceutical
companies in state court for allegedly deceptive drug
marketing, the companies turned to federal court, seeking an
injunction against the state-court litigation. The federal
district court dismissed the suit, concluding that Younger v.
Harris, 401 U.S. 37 (1971), required it to abstain from
exercising jurisdiction. We agree with the district court that
the state-court litigation is a quasi-criminal enforcement
proceeding and that Younger bars a federal court from
interfering with such a proceeding. We therefore affirm.
This case involves Plavix, a medication introduced to the
market in 1997 and used to help prevent heart attacks and
strokes by inhibiting the formation of blood clots. In 2008,
researchers reported that some people, particularly those of
Asian or Pacific Islander descent, have a genetic variation in
an enzyme involved in metabolizing Plavix, which may
make the drug less effective. In 2014, the State of Hawaii
filed suit in state court against the pharmaceutical companies
that produce Plavix—Bristol-Myers Squibb Company,
Sanofi-Aventis U.S. LLC, Sanofi US Services Inc., and
Sanofi-Synthelabo LLC. See State ex rel. Louie v. Bristol-
Myers Squibb Co., No. 14-1-0708-03 (Haw. 1st Cir. Ct. Mar.
19, 2014). The State alleged that the companies had known
since 1998 that those with the genetic variation, a group that
includes a significant portion of Hawaii’s population,
experienced worse clinical outcomes and that the companies
BRISTOL-MYERS SQUIBB V. CONNORS 5
had intentionally concealed that fact in violation of Hawaii’s
statute prohibiting unfair or deceptive acts or practices in
commerce. See Haw. Rev. Stat. § 480-2. Two private law
firms conducted the initial investigation of the companies
and brought the state-court action on behalf of the State on a
contingency-fee basis.
In January 2020, nearly six years after the state-court
litigation began, the companies turned to federal court to
seek an injunction against the state proceeding, which, they
argued, violated their First Amendment rights. The State
moved to dismiss under Younger, and the district court
granted the motion. We review the district court’s decision
to abstain under Younger de novo. Gilbertson v. Albright,
381 F.3d 965, 982 n.19 (9th Cir. 2004) (en banc).
The Supreme Court has held that, with just a few
exceptions, federal courts have a “virtually unflagging
obligation . . . to exercise the jurisdiction given them.”
Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 817 (1976). One such exception is the
abstention doctrine recognized in Younger, in which the
Supreme Court relied on “the basic doctrine of equity
jurisprudence that courts of equity should not act . . . to
restrain a criminal prosecution,” reinforced by
considerations of comity, to hold that federal courts
generally must abstain from enjoining a pending state
criminal proceeding. 401 U.S. at 43–44. In later cases, that
“concern for comity and federalism” led the Court to
“expand the protection of Younger beyond state criminal
prosecutions, to civil enforcement proceedings.” New
Orleans Pub. Serv., Inc. v. Council of New Orleans (NOPSI),
491 U.S. 350, 367–68 (1989); see Huffman v. Pursue, Ltd.,
420 U.S. 592, 604 (1975).
6 BRISTOL-MYERS SQUIBB V. CONNORS
In Sprint Communications, Inc. v. Jacobs, 571 U.S. 69(2013), the Court limited that expansion, holding that
Younger abstention applies to only three categories of state
proceedings: (1) “ongoing state criminal prosecutions”;
(2) “certain ‘civil enforcement proceedings’”; and (3) “‘civil
proceedings involving certain orders . . . uniquely in
furtherance of the state courts’ ability to perform their
judicial functions.’” Id. at 78 (quoting NOPSI, 491 U.S.
at 368). The Court described the type of civil enforcement
proceedings to which Younger applies as those that are
“‘akin to a criminal prosecution’ in ‘important respects.’” Id.
at 79 (quoting Huffman, 420 U.S. at 604). It described some
of the characteristics of such proceedings as follows:
Such enforcement actions are
characteristically initiated to sanction the
federal plaintiff, i.e., the party challenging
the state action, for some wrongful act. In
cases of this genre, a state actor is routinely a
party to the state proceeding and often
initiates the action. Investigations are
commonly involved, often culminating in the
filing of a formal complaint or charges.
Id. at 79–80 (citations omitted).
In this case, the district court determined that Younger
abstention was appropriate because the state proceeding at
issue is “a civil enforcement action brought by the Attorney
General seeking civil penalties, injunctive relief, and
damages for unfair and deceptive acts in violation of Hawai‘i
consumer protection law.” The companies challenge that
conclusion, arguing that none of the characteristics of a civil
enforcement action that the Court described in Sprint is
present in this case.
BRISTOL-MYERS SQUIBB V. CONNORS 7
First, the companies argue that the state-court litigation
was not, in reality, brought by the State of Hawaii. In the
companies’ view, the State of Hawaii is not genuinely a
party to the state-court litigation because the State’s reliance
on private counsel means that it is only a nominal plaintiff.
But even though the state proceeding is being litigated by
private counsel, it is still an action brought by the State—
indeed, the first paragraph of the companies’ federal
complaint recognizes as much, alleging that “[t]he State of
Hawai‘i has sued the Companies.”
An important principle of federalism is that it is up to
“the people of the States to determine the qualifications of
their government officials.” Gregory v. Ashcroft, 501 U.S.
452, 463 (1991); see Taylor v. Beckham, 178 U.S. 548, 570–
71 (1900) (describing the authority of States “to prescribe
the qualifications of their own officers” as “obviously
essential to the independence of the States”). Conducting
litigation on behalf of a State is a core sovereign function,
and the people of each State, through their elected
representatives, have the right to decide whether that
function should be carried out by full-time government
employees or, as here, by outside counsel retained for a
particular case. Thus, we have held that the Due Process
Clause does not require a State to use state employees, rather
than outside counsel, to bring a civil enforcement action.
American Bankers Mgmt. Co. v. Heryford, 885 F.3d 629,
633–37 (9th Cir. 2018).
We see no reason why the application of Younger should
turn on the State’s choice of lawyers. Cf. Trump v. Vance,
941 F.3d 631, 638 n.10 (2d Cir. 2019) (concluding, in a
federal suit seeking an injunction against an ongoing
investigation of the President in state court, that the Younger
analysis—specifically, the importance of the federal
8 BRISTOL-MYERS SQUIBB V. CONNORS
interests at stake—was “unaltered by the fact that the
President is represented by private counsel”), aff’d, 140 S.
Ct. 2412 (2020). Here, the state-court case against the
companies is one that, under Hawaii law, only the Attorney
General or another state official may bring; it is not available
to a private party. Haw. Rev. Stat. § 480-3.1. The Attorney
General of Hawaii made the decision to bring the action, and
the people of Hawaii may hold her accountable for that
decision. The action is therefore one “brought by the State in
its sovereign capacity.” Trainor v. Hernandez, 431 U.S. 434,
444 (1977). For purposes of Younger, it is an action in which
a “state actor is . . . a party.” Sprint, 571 U.S. at 79.
The companies next argue that we must employ a
“rigorous inquiry” to determine “the true character of the
underlying action” and whether it constitutes a civil
enforcement action as described in Sprint. If we do, the
companies assert, we will find that the state proceeding fails
to qualify because private counsel conducted the bulk of the
investigation and because the State’s true motive in bringing
the case is to make a profit, not to punish wrongdoing. That
kind of case-specific inquiry finds no support in precedent.
In Sprint, the Supreme Court described the
characteristics of quasi-criminal enforcement actions in
general terms by noting features that are typically present,
not in specific terms by prescribing criteria that are always
required. Nothing in the Court’s opinion suggests that the
characteristics it identified should be treated as a checklist,
every element of which must be satisfied based on the
specific facts of each individual case. 571 U.S. at 79–80.
Instead, the Court used terms such as “characteristically,”
“routinely,” and “commonly” to describe the class of
enforcement actions entitled to Younger abstention. Id. at 79.
BRISTOL-MYERS SQUIBB V. CONNORS 9
And when evaluating whether the characteristics of
actions entitled to Younger abstention are present, the
Supreme Court has considered the nature of a State’s interest
in different classes of proceedings, not its interest in specific
cases. See, e.g., Middlesex Cnty. Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 432 (1982). In NOPSI, the
Court explained that “when we inquire into the substantiality
of the State’s interest in its proceedings we do not look
narrowly to its interest in the outcome of the particular case,”
but instead to “the importance of the generic proceedings to
the State.” 491 U.S. at 365 (emphasis omitted). So too here.
What matters for Younger abstention is whether the state
proceeding falls within the general class of quasi-criminal
enforcement actions—not whether the proceeding satisfies
specific factual criteria. For that reason, we agree with the
First Circuit that “courts ordinarily should look to the
general class of proceedings in determining whether
Younger abstention applies.” Sirva Relocation, LLC v.
Richie, 794 F.3d 185, 195 (1st Cir. 2015).
The case on which the companies principally rely, Cook
v. Harding, 879 F.3d 1035 (9th Cir. 2018), does not support
the proposition that we must conduct a case-specific inquiry
into the nature of the state proceeding. In Cook, we
concluded that a civil action brought by a private party to
enforce a surrogacy agreement is not a proceeding to which
Younger applies. We explained that a private contract action
does not fall within Sprint’s two categories of civil cases
entitled to abstention: It is neither a civil enforcement
proceeding nor a civil proceeding involving a State’s interest
in enforcing the orders of its courts. Id. at 1040–41. While
we noted that Sprint limited the categories of cases to which
Younger applies, we did not hold that the Court had required
any kind of elevated scrutiny of cases that fell within these
categories. Id. at 1039. Instead, we considered whether the
10 BRISTOL-MYERS SQUIBB V. CONNORS
general class of contract cases constituted civil enforcement
proceedings, and we concluded that they did not. Id. at
1040–41. That is consistent with the approach we take today.
Accepting the companies’ invitation to scrutinize the
particular facts of a state civil enforcement action would
offend the principles of comity at the heart of the Younger
doctrine. The “underlying reason for restraining courts of
equity” is the “notion of ‘comity,’ that is, a proper respect
for state functions . . . and a continuance of the belief that the
National Government will fare best if the States and their
institutions are left free to perform their separate functions
in their separate ways.” Younger, 401 U.S. at 44. A federal-
court inquiry into why a state attorney general chose to
pursue a particular case, or into the thoroughness of the
State’s pre-filing investigation, would be entirely at odds
with Younger’s purpose of leaving state governments “free
to perform their separate functions in their separate ways.”
Id. It also would make the application of Younger turn on a
complex, fact-intensive analysis, in tension with the
Supreme Court’s admonition that jurisdiction should be
governed by “straightforward rules under which [courts] can
readily assure themselves of their power to hear a case.”
Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010).
Looking to the general class of cases of which this state
proceeding is a member, we conclude that Younger
abstention is appropriate here. The State’s action has been
brought under a statute that punishes those who engage in
deceptive acts in commerce, and the State seeks civil
penalties and punitive damages to sanction the companies
for their allegedly deceptive labeling practices. On its face,
the action fits comfortably within the class of cases
described in Sprint, and abstention under Younger is
BRISTOL-MYERS SQUIBB V. CONNORS 11
warranted. See Williams v. Washington, 554 F.2d 369, 370
(9th Cir. 1977).
Finally, asserting that the State is “using the threat of
sky-high penalties” to force them to “take sides on matters
of scientific dispute,” the companies argue that their First
Amendment interests are at stake, and that we must therefore
subject the state-court proceedings to more intense scrutiny
than might otherwise be warranted. But Younger abstention
routinely applies even when important rights are at stake—
indeed, without some claim that a prosecution affects
federally protected rights, there would be no basis for federal
jurisdiction in the first place, and thus nothing from which to
abstain. See, e.g., Younger, 401 U.S. at 51; Huffman,
420 U.S. at 610; Middlesex Cnty. Ethics Comm., 457 U.S.
at 435–37. In Younger itself, for example, the plaintiffs
argued that the state prosecution had a “chilling effect” on
their exercise of First Amendment rights, but the Court
declined to apply any heightened scrutiny on that basis.
401 U.S. at 51. Instead, it explained that “the existence of a
‘chilling effect,’ even in the area of First Amendment rights,
has never been considered a sufficient basis, in and of itself,
for prohibiting state action.” Id.The Supreme Court has stated that Younger does not
apply in “extraordinary circumstances, where the danger of
irreparable loss is both great and immediate.” Younger, 401
U.S. at 45. That is a narrow exception, principally applying
to “cases of proven harassment . . . by state officials in bad
faith,” and the companies have expressly disclaimed reliance
on it. Perez v. Ledesma, 401 U.S. 82, 85 (1971); Brown v.
Ahern, 676 F.3d 899, 901 (9th Cir. 2012). The companies’
First Amendment concerns do not bring this case within the
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scope of that exception, so they have no bearing on the
application of Younger.
AFFIRMED.