California Chamber of Commerce v. Bonta ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 California Chamber of Commerce, No. 2:19-cv-02019-KJM-JDP 12 Plaintiff, ORDER 13 Vv. Xavier Becerra in his official capacity as 15 Attorney General of the State of California, 16 Defendant. 17 18 19 The Center for Education and Research on Toxics (CERT), an intervenor defendant in this 20 | action, applies ex parte to stay this court’s order granting a preliminary injunction. See Ex Parte 21 | App., ECF No. 116; Prev. Order, ECF No. 116. The California Chamber of Commerce opposes 22 | CERT’s ex parte application. Opp’n, ECF No. 117. The deadline for oppositions to ex parte 23 | applications under this court’s standing order has expired without any statement by the Attorney 24 | General.’ Cf, Metzger Decl. 43, ECF No. 116 (“Prior to filing this application, I contacted 25 | counsel of record for all parties to this action, to ascertain whether they would stipulate to the stay ' While Xavier Becerra is still identified in the caption of this case as the defendant Attorney General, his successor will be substituted in once confirmed to the post. Fed. R. Civ. P. 25. 1 requested herein. . . . Counsel for Defendant, Xavier Becerra, advised that the Attorney General 2 was in the process of evaluating the matter.”). 3 A stay is an exercise of judicial discretion in light of the “circumstances of the particular 4 case.” Nken v. Holder, 556 U.S. 418, 433 (2009) (citation omitted). The factors that inform a 5 decision to stay pending appeal are essentially the same factors applicable to a motion for a 6 preliminary injunction. “A party seeking a stay must establish that he is likely to succeed on the 7 merits, that he is likely to suffer irreparable harm in the absence of relief, that the balance of 8 equities tip in his favor, and that a stay is in the public interest.” Humane Soc. of U.S. v. 9 Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 10 555 U.S. 7, 20 (2008)). 11 As explained in this court’s previous order, CERT is not likely to succeed in its claims 12 that a preliminary injunction is an unconstitutional prior restraint or that it is entitled to summary 13 judgment under the Noerr–Pennington doctrine. See Prev. Order at 13–20. Nor has CERT 14 shown that it will suffer irreparable harm. It may resume private enforcement actions under 15 Proposition 65 if judgment is ultimately entered in its favor or if the preliminary injunction is 16 dissolved, and it has many other avenues for alerting consumers and the public to the dangers of 17 acrylamide. Finally, as explained in this court’s previous order, the balance of equities and public 18 interest favor the narrow preliminary injunction this court has imposed. See id. at 28–31. 19 The ex parte application for a stay pending appeal is denied. 20 This order resolves ECF No. 116. 21 IT IS SO ORDERED. 22 DATED: April 15, 2021.