`
`No. 20-1149
`================================================================================================================
`
`In the
`Supreme Court of the United States
`--------------------------------- ♦ ---------------------------------
`
`BRISTOL-MYERS SQUIBB COMPANY, et al.,
`Petitioners,
`
`v.
`
`CLARE E. CONNORS, in her official capacity
`as the Attorney General of Hawaii,
`Respondent.
`
`--------------------------------- ♦ ---------------------------------
`On Petition For A Writ Of Certiorari
`To The United States Court Of Appeals
`For The Ninth Circuit
`--------------------------------- ♦ ---------------------------------
`BRIEF IN OPPOSITION
`--------------------------------- ♦ ---------------------------------
`
`CLARE E. CONNORS*
` Attorney General
`KIMBERLY T. GUIDRY
` Solicitor General
`
`NICHOLAS M. MCLEAN
` Deputy Solicitor General
`BRYAN C. YEE
`T.F. MANA MORIARTY
` Deputy Attorneys General
`STATE OF HAWAII
`DEPARTMENT OF THE
` ATTORNEY GENERAL
`425 Queen Street
`Honolulu, HI 96813
`Phone: (808) 586-1360
`Email: hawaiiag@hawaii.gov
`*Counsel of Record
`Counsel for Respondent
`
`MAY 13, 2021
`
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`QUESTION PRESENTED
`
`
` Whether the court of appeals correctly determined
`that the state consumer-protection enforcement action
`at issue here—an enforcement action brought in state
`court by the State of Hawaii, through its Attorney Gen-
`eral, to sanction petitioners for serious violations of
`state law by the imposition of civil monetary penalties
`and punitive damages—falls within the category of
`civil actions “akin to a criminal prosecution in im-
`portant respects,” Sprint Commc’ns, Inc. v. Jacobs, 571
`U.S. 69, 79 (2013) (quotation omitted), thus warranting
`federal court abstention under Younger v. Harris, 401
`U.S. 37 (1971), and progeny.
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED...................................
`i
`TABLE OF CONTENTS ......................................
`ii
`TABLE OF AUTHORITIES .................................
`iii
`INTRODUCTION ................................................
`1
`STATEMENT .......................................................
`6
` A. The State’s Civil Enforcement Action .......
`6
` B. The District Court Abstains ......................
`9
` C. The Ninth Circuit Affirms ......................... 11
` D. The State Court Enters Judgment Against
`Petitioners In The Enforcement Action ..... 14
`REASONS FOR DENYING THE PETITION ...... 15
` A. The Decision Below Correctly Applied
`Sprint. ........................................................ 16
` B. There Is No Circuit Split ........................... 28
` C. There Is No Reason To Revisit Sprint ....... 31
`1. First Amendment Concerns Do Not
`Preclude Younger Abstention .............. 32
`2. The State’s Retention of Private Coun-
`sel Does Not Alter the Younger Ab-
`stention Analysis ................................. 34
`CONCLUSION ..................................................... 38
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Arizona v. Rumsey, 467 U.S. 203 (1984) ..................... 16
`Austin v. United States, 509 U.S. 602 (1993) ............. 16
`Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
`532 U.S. 424 (2001) ................................................. 23
`Davis v. Wholesale Motors, Inc., 86 Hawaii 405,
`949 P.2d 1026 (App. 1997) ....................................... 25
`Doe v. Univ. of Kentucky, 860 F.3d 365 (6th Cir.
`2017) ........................................................................ 29
`Gamble v. United States, 139 S. Ct. 1960 (2019) ....... 16
`Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,
`336 U.S. 271 (1949) ................................................. 19
`Hawaii ex rel. Louie v. Bristol-Myers Squibb Co.,
`Civ. No. 14-00180(HG)(RLP), 2014 WL 3427387
`(D. Haw. July 15, 2014) ............................................. 8
`Helms Realty Corp. v. City of New York, 820 F.
`App’x 79 (2d Cir. 2020) ............................................ 30
`Hertz Corp. v. Friend, 559 U.S. 77 (2010) ......... 5, 13, 20
`Huffman v. Pursue, Ltd., 420 U.S. 592
`(1975) ............................................................... passim
`Hunter v. Hirsig, 660 F. App’x 711 (10th Cir.
`2016) ........................................................................ 30
`In re Plavix Mrktg., Sales Practices & Prods.
`Liability Litig., 123 F. Supp. 3d 584 (D.N.J.
`2015) .......................................................................... 8
`Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ....................... 32
`
`
`
`iv
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`Kyles v. Whitley, 514 U.S. 419 (1995) .......................... 19
`Middlesex Cnty. Ethics Comm. v. Garden State
`Bar Ass’n, 457 U.S. 423 (1982) ........................ passim
`Minnesota Living Assistance, Inc. v. Peterson,
`899 F.3d 548 (8th Cir. 2018) .................................... 31
`Moore v. Sims, 442 U.S. 415 (1979) ............................ 32
`New Orleans Pub. Serv., Inc. v. Council of New
`Orleans, 491 U.S. 350 (1989) ........................... passim
`Ohio Civ. Rights Comm’n v. Dayton Christian
`Sch., Inc., 477 U.S. 619 (1986) ....................... 2, 21, 33
`Sirva Relocation, LLC v. Richie, 794 F.3d 185
`(1st Cir. 2015) .............................................. 27, 31, 34
`Sprint Communications, Inc. v. Jacobs, 571 U.S.
`69 (2013) .......................................................... passim
`State v. Shasteen, 9 Haw. App. 106, 826 P.2d 879
`(1992) ....................................................................... 24
`The Monrosa v. Carbon Black Exp., Inc., 359 U.S.
`180 (1959) ................................................................ 35
`Trainor v. Hernandez, 431 U.S. 434 (1977) .................. 3
`Trump v. Vance, 941 F.3d 631 (2d Cir. 2019),
`aff ’d, 140 S. Ct. 2412 (2020) ............................. 34, 35
`U.S. ex rel. Atkins v. McInteer, 470 F.3d 1350
`(11th Cir. 2006) ........................................................ 35
`United States v. Johnston, 268 U.S. 220 (1925) ......... 19
`Vermont Agency of Nat. Res. v. U.S. ex rel. Ste-
`vens, 529 U.S. 765 (2000) ........................................ 35
`
`
`
`v
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Watson v. Fla. Jud. Qualifications Comm’n, 618
`F. App’x 487 (11th Cir. 2015) ................................... 30
`Younger v. Harris, 401 U.S. 37 (1971) ................ passim
`
`STATUTES AND RULES
`1968 Hawaii Session Laws, Act 10, Section 1 ........... 25
`Haw. Rev. Stat. § 28-8(b) ............................................... 7
`Haw. Rev. Stat. § 480-1, et seq. ..................................... 6
`Haw. Rev. Stat. § 480-3.1 .................................. 6, 24, 35
`Haw. Rev. Stat. § 480-13 ............................................. 25
`Haw. Rev. Stat. § 661-10 ............................................... 6
`Haw. Rev. Stat. § 661-25(b) ........................................... 8
`Sup. Ct. R. 10 .............................................................. 19
`
`OTHER AUTHORITIES
`Bristol-Myers Squibb Co. v. Connors, No. 20-
`15515, Opening Brief at 4 ............................... passim
`Gressman, et al., Supreme Court Practice
`§ 4.4(f ) (9th ed. 2007) .............................................. 36
`State v. Bristol-Myers Squibb Co., Civ. No. 14-
`1-0708-03, Dkt. 228 (Dec. 4, 2018), Second
`Amended Complaint ¶ 9 ........................................... 6
`
`
`
`1
`
`No. 20-1149
`--------------------------------- ♦ ---------------------------------
`In the
`Supreme Court of the United States
`--------------------------------- ♦ ---------------------------------
`BRISTOL-MYERS SQUIBB COMPANY, et al.,
`Petitioners,
`
`v.
`
`CLARE E. CONNORS, in her official capacity
`as the Attorney General of Hawaii,
`Respondent.
`--------------------------------- ♦ ---------------------------------
`On Petition For A Writ Of Certiorari
`To The United States Court Of Appeals
`For The Ninth Circuit
`--------------------------------- ♦ ---------------------------------
`BRIEF IN OPPOSITION
`--------------------------------- ♦ ---------------------------------
`INTRODUCTION
`This is a straightforward Younger abstention case.
`
`Petitioners are the defendants in a state civil enforce-
`ment action brought by the State of Hawaii, through
`its Attorney General, to sanction petitioners for serious
`and repeated violations of state consumer protection
`law. On the eve of trial—and after almost six years of
`litigation in the state court system—petitioners sued
`the State Attorney General in federal district court
`and requested an injunction “prohibiting the State
`
`
`
`2
`
`from pursuing a civil enforcement action” against peti-
`tioners. Pet. App. 68a. The district court dismissed pe-
`titioners’ complaint on Younger abstention grounds.
`Pet. App. 11a-24a. A unanimous panel of the Ninth Cir-
`cuit affirmed. Pet. App. 1a-9a.
`
`In the decision below, the Ninth Circuit correctly
`
`applied this Court’s precedents and concluded that ab-
`stention was warranted based on its assessment of the
`characteristics of the underlying state enforcement
`proceeding. That decision was consistent with the doc-
`trinal framework applied in other circuits, and peti-
`tioners’ argument that the Ninth Circuit created “a
`clear circuit split,” Pet. 22, mischaracterizes the deci-
`sion below.
`Younger abstention, which draws its name from
`
`Younger v. Harris, 401 U.S. 37 (1971), advances the
`goals of federalism and comity by providing for federal
`court abstention when “particular kinds of state pro-
`ceedings have already been commenced.” Ohio Civ.
`Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S.
`619, 625-26 (1986). In Sprint Communications, Inc. v.
`Jacobs, 571 U.S. 69 (2013), this Court clarified that
`Younger abstention is appropriate when three discrete
`categories of state proceedings are involved: (1) “state
`criminal prosecution,” (2) “certain civil enforcement
`proceedings,” and (3) “civil proceedings involving cer-
`tain orders uniquely in furtherance of the state courts’
`ability to perform their judicial functions.” Id. at 78.
`
`The civil enforcement proceeding at issue in this
`
`case, as the Ninth Circuit correctly held, falls squarely
`
`
`
`3
`
`into the second of the three Sprint categories. It was a
`“civil enforcement proceeding,” Sprint, 571 U.S. at 78,
`“brought by the State in its sovereign capacity,” Pet.
`App. 6a (quoting Trainor v. Hernandez, 431 U.S. 434,
`444 (1977)), through the State Attorney General, to
`sanction petitioners for violations of state consumer
`protection law involving the marketing of the prescrip-
`tion drug Plavix. Pet. App. 5a-6a. “The State’s action,”
`the court of appeals explained, was “brought under a
`statute that punishes those” who have engaged in un-
`fair or deceptive acts in commerce, “and the State seeks
`civil penalties and punitive damages to sanction the
`companies for their allegedly deceptive labeling prac-
`tices.” Pet. App. 8a. When judged against the factors
`that Sprint identifies as relevant to whether a state
`civil enforcement proceeding warrants Younger ab-
`stention, the state enforcement action at issue here
`plainly qualifies: It was “initiated to sanction” petition-
`ers “for [a] wrongful act”; “a state actor” was “a party
`to the state proceeding and” “initiate[d] the action”;
`and it involved an “[i]nvestigation[ ]” that “culmi-
`nat[ed] in the filing of a formal complaint[.]” Sprint,
`571 U.S. at 79-80.
`
`In short: By any reasonable measure, the State’s
`
`enforcement action against petitioners “was ‘more akin
`to a criminal prosecution than are most civil cases.’ ”
`Sprint, 571 U.S. at 81 (quoting Huffman v. Pursue, Ltd.,
`420 U.S. 592, 604 (1975)). Accordingly, the state en-
`forcement proceeding was a “quasi-criminal” “civil en-
`forcement action” within the meaning of this Court’s
`
`
`
`4
`
`Younger abstention precedents. Federal abstention
`was thus warranted.
`Petitioners argue that Younger abstention should
`
`turn on a more “fact-specific inquiry,” Pet. 4—one that
`apparently requires, among other things, a wide-rang-
`ing assessment of state actors’ subjective purposes and
`motives. For example, petitioners argue that the Ninth
`Circuit erred in concluding that abstention was proper
`because the court did not first “consider” whether
`“state health officials” had “expressed . . . concern[s]
`about” Plavix. Pet. 13. Petitioners further argue that
`Younger abstention requires the State to “demon-
`strat[e]” that its “civil enforcement proceeding is a
`bona fide exercise of . . . sovereign law-enforcement
`prerogatives,” Pet. 21, and that the particular state ac-
`tion at issue truly “furthers” “legitimate interests” and
`“represents the exercise of a state function worthy of
`proper respect.” Pet. 17, 21. According to petitioners,
`prior to applying Younger abstention, a federal court
`must evaluate the State’s motives and assess whether
`the particular individuals the State chooses to prose-
`cute its enforcement action have been truly “guided
`solely by their sense of public responsibility for the
`attainment of justice” rather than “an interest in
`pursuing profit.” Pet. 20 (quotation omitted). Here, pe-
`titioners suggest that the Hawaii Attorney General’s
`decision to designate private counsel as special deputy
`attorneys general to prosecute the State’s enforcement
`action somehow means the State’s enforcement action
`is ineligible for Younger abstention. Pet. 20.
`
`
`
`5
`
`Petitioners’ proposed test is not the law, nor should
`
`it be. The Ninth Circuit properly rejected petitioners’
`attempt to limit the ability of state attorneys general
`to decide how to enforce state actions—and it correctly
`held that the free-form, subjective inquiry into motives
`and purposes urged by petitioners has no basis in
`this Court’s Younger abstention precedents. “A federal
`court inquiry into why a state attorney general chose
`to pursue a particular case . . . would be entirely at
`odds with Younger’s purpose of leaving state govern-
`ments ‘free to perform their separate functions in their
`separate ways.’ ” Pet. App. 8a (quoting Younger, 401
`U.S. at 44). Petitioners’ proposed approach “also would
`make the application of Younger turn on a complex,
`fact-intensive analysis,” which would violate the prin-
`ciple—often invoked by this Court—that federal “juris-
`diction should be governed by ‘straightforward rules
`under which courts can readily assure themselves of
`their power to hear a case.’ ” Pet. App. 8a (alteration
`omitted; quoting Hertz Corp. v. Friend, 559 U.S. 77, 94
`(2010)).
`
`In sum, the decision below correctly and faithfully
`
`applied this Court’s Younger abstention case law. There
`is no circuit split, despite petitioners’ efforts to create
`the illusion of one by mischaracterizing the decision
`below. And the test petitioners invite this Court to in-
`troduce would be both unworkable and at odds with
`existing law. The Court should deny the petition.
`--------------------------------- ♦ ---------------------------------
`
`
`
`
`
`
`6
`
`STATEMENT
`A. The State’s Civil Enforcement Action.
`
`In 2014, the State of Hawaii commenced a civil en-
`
`forcement proceeding against petitioners—manufac-
`turers and sellers of the anti-platelet prescription drug
`Plavix. The enforcement action—which was initiated
`by the State’s filing of a formal complaint in state
`court—was brought under the State’s Unfair and De-
`ceptive Practices Act (“UDAP”), Haw. Rev. Stat.
`§ 480-1, et seq. Pet. App. 2a-3a. The action was filed by
`then-Hawaii Attorney General David Louie under his
`parens patriae authority, Haw. Rev. Stat. § 480-3.1, and
`Haw. Rev. Stat. § 661-10. See State v. Bristol-Myers
`Squibb Co., Civ. No. 14-1-0708-03, Dkt. 228 (Dec. 4,
`2018), Second Amended Complaint (“SAC”) ¶ 9; see
`also Haw. Rev. Stat. § 480-3.1 (providing specific au-
`thorization to the State Attorney General to recover
`civil penalties for UDAP violations); Haw. Rev. Stat.
`§ 661-10 (providing that “the attorney general may
`bring and maintain an action” “in the name of the
`State” “[w]henever it is necessary or desirable for the
`State in order to collect or recover any money or pen-
`alty”). The State sought civil penalties, injunctive re-
`lief, and punitive damages. SAC ¶¶ 106, 110, 119, and
`Prayer for Relief.
`
`The State’s enforcement action alleged serious vi-
`
`olations of State consumer protection law, including
`unfair or deceptive marketing and promotion of Plavix.
`SAC ¶¶ 24-65. The gravamen of the State’s complaint
`was that petitioners marketed Plavix to all patients
`
`
`
`7
`
`with a history of heart attack, stroke, or peripheral
`artery disease, even though they knew Plavix had di-
`minished or no effect for as many as thirty percent of
`patients. SAC ¶¶ 24-31. The State also alleged that
`persons of Asian and Pacific Islander descent, who
`comprise a significant portion of Hawaii’s population,
`are more likely to have the genetic mutation that re-
`sults in poor metabolization. SAC ¶ 27.
`
`As authorized by State law, the State Attorney
`
`General appointed private counsel to serve as special
`deputy attorneys general for the purposes of litigating
`the State’s action. Pet. App. 3a; Haw. Rev. Stat. § 28-
`8(b) (authorizing the Attorney General to retain pri-
`vate counsel who “shall serve at the pleasure of the at-
`torney general” “to perform such duties and exercise
`such powers as the attorney general may specify”).1
`The State’s contract with private counsel expressly
`provided that “ ‘the Attorney General shall have final
`authority over all aspects of this Litigation’ and ‘must
`approve in advance all aspects of this Litigation.’ ” Pet.
`App. 52a.
`
`
`1 The Hawaii Legislature granted this authority to the Attor-
`
`ney General to “reduce costs as well as free up valuable re-
`sources,” allowing government departments “to pursue other
`matters previously ignored because of the lack of in-house re-
`sources.” H. Stand. Comm. Rep. No. 1216, in 1995 House Journal,
`at 1491. It was contemplated that this authority would be espe-
`cially beneficial “[i]n complex litigation or cases in which the up-
`front costs may be high,” “particularly in the . . . consumer pro-
`tection area[.]” S. Stand. Comm. Rep. No. 304, in 1995 Senate
`Journal, at 940.
`
`
`
`8
`
`The enforcement “action was ‘a result of an inves-
`
`tigation or inquiry by the Attorney General[.]’ ” Pet.
`App. 48a.2 The Attorney General became aware of po-
`tentially unlawful activities by petitioners from a rela-
`tor action.3 Additionally, private counsel conducted a
`nationwide investigation of petitioners’ misconduct.
`Pet. App. 3a.
`
`After almost six years of vigorous litigation in
`
`state court, petitioners “turned to federal court, seek-
`ing an injunction against the state court litigation.”
`Pet. App. 2a.4 They sued the State Attorney General
`
`
`2 This statement regarding the investigation was provided
`
`by the State to petitioners in discovery in the state court action,
`and thereafter included among petitioners’ allegations in their
`federal complaint (Pet. App. 48a), and relied upon by the district
`court (Pet. App. 18a).
`3 In 2011, a relator filed a federal False Claims Act action
`
`against petitioners on behalf of the United States and a number
`of states, alleging fraudulent marketing of Plavix. See In re Plavix
`Mrktg., Sales Practices & Prods. Liability Litig., 123 F. Supp. 3d
`584, 590 n.1, 617 (D.N.J. 2015). On or around December 2011,
`after relator added a claim on behalf of Hawaii, relator served the
`State with the underlying evidence, as required by statute, Haw.
`Rev. Stat. § 661-25(b). Id.
`4 Petitioners previously diverted the State into federal court
`
`in 2014, when they improperly sought removal of the state en-
`forcement action. See Hawaii ex rel. Louie v. Bristol-Myers Squibb
`Co., Civ. No. 14-00180(HG)(RLP), 2014 WL 3427387, at *16 (D.
`Haw. July 15, 2014). The district court concluded that it lacked
`jurisdiction and remanded the case. Although petitioners affirm-
`atively asserted a First Amendment defense in their responsive
`pleadings to the state court complaint and amended complaints,
`they did not invoke the First Amendment in the removal petition
`and did not ask the state court judge to take action regarding
`their First Amendment defense until after the unsuccessful filing
`
`
`
`
`9
`
`in her official capacity, Pet. App. 33a, and sought
`“[p]reliminary and permanent injunctive relief prohib-
`iting the State from pursuing a civil enforcement ac-
`tion against” petitioners. Pet. App. 68a. In their federal
`complaint, petitioners conceded the underlying state
`court action was “a civil enforcement action” brought
`by “[t]he State[.]” E.g., Pet. App. 32a (alleging that
`“[t]he State of Hawaii . . . brought a civil enforcement
`action”). Petitioners also alleged and conceded the
`State was “seeking to punish them.” Pet. App. 16a (dis-
`trict court order; citing Compl. ¶¶ 1; 78); Pet. App. 25a,
`51a.
`
`The State moved to dismiss the federal action on
`
`Younger abstention grounds. Pet. App. 3a, 12a.
`
`
`B. The District Court Abstains.
`
`The district court dismissed petitioners’ federal
`
`complaint because it determined that Younger absten-
`tion was warranted. Pet. App. 11a-24a. The district
`court explained that because the State enforcement
`proceeding was “a civil enforcement action brought by
`the Attorney General seeking civil penalties, injunc-
`tive relief, and damages for unfair and deceptive acts
`in violation of Hawaii consumer protection law,” the ac-
`tion was properly categorized as “a quasi-criminal civil
`enforcement proceeding” under Sprint. Pet. App. 14a.
`
`
`of their January 2020 federal court action for injunctive relief.
`Pet. App. 25a-68a, 3a, 12a.
`
`
`
`10
`
`The court observed that “there can be no dispute
`
`that the state action . . . seeks to eradicate what the
`State perceives to be [petitioners’] unfair and deceptive
`practices.” Pet. App. 15a-16a. Similarly, the court con-
`cluded that “it is undisputed the state action is brought
`by the Attorney General on behalf of the State in its
`sovereign capacity.” Pet. App. 16a-17a. The court like-
`wise determined that neither Sprint nor any circuit
`precedent treated the presence of a pre-filing investi-
`gation as dispositive for Younger abstention but that,
`in any event, the State’s private counsel had conducted
`such an investigation. The court further noted that pe-
`titioners themselves had “allege[d] the state action
`was the result of an investigation or inquiry by the At-
`torney General.” Pet. App. 17a-18a.
`
`The district court correctly rejected as irrelevant
`
`to the Sprint analysis petitioners’ novel suggestion
`that the court should scrutinize the State’s motive for
`bringing the action, the extent of the associated inves-
`tigations, and the role of the State’s retained counsel.
`Pet. App. 15a-18a. Petitioners suggested that “the state
`action [was] not a quasi-criminal enforcement proceed-
`ing because the State [was] merely a nominal plaintiff
`in a suit litigated by private counsel.” Pet. App. 16a.
`The district court, however, correctly observed that pe-
`titioners “cite[d] no authority to support their argu-
`ment that this impacts the Younger analysis where, as
`here, it is undisputed the state action was brought by
`the Attorney General as plaintiff, on behalf of the State
`in its sovereign capacity, and suing under certain
`
`
`
`11
`
`Hawaii statutes that authorize the Attorney General
`to bring such actions.” Pet. App. 16a-17a.
`
`Having determined that the underlying civil en-
`
`forcement action was “a quasi-criminal enforcement
`action” for Younger abstention purposes, Pet. App. 14a,
`the district court also determined that the state en-
`forcement proceeding implicated important state in-
`terests, Pet. App. 19a.5
`
`Finally, the court concluded that no “extraordi-
`
`nary circumstances”—including the First Amendment
`claims petitioners had litigated in state court—justi-
`fied an exception to Younger abstention. Pet. App. 22a.6
`
`
`C. The Ninth Circuit Affirms.
`
`A unanimous panel of the Ninth Circuit affirmed.
`
`Pet. App. 1a-9a. The court of appeals “agree[d] with the
`district court” that the state court action at issue was
`“a quasi-criminal enforcement proceeding” of the sort
`for which Younger abstention is warranted. Pet. App.
`2a.
`
`
`5 Petitioners did not challenge this determination before the
`
`Ninth Circuit. Petitioners placed at issue only “[w]hether the
`district court erred in holding that” the underlying state enforce-
`ment proceeding was “a civil enforcement action akin to a crim-
`inal proceeding that warrants abstention under Younger[.]”
`Bristol-Myers Squibb Co. v. Connors, No. 20-15515, Opening Brief
`at 4 (quotation omitted).
`6 Petitioners disclaimed any reliance on the “bad faith” or
`
`“harassment” exceptions on appeal, Pet. App. 9a, and before the
`district court, Pet. App. 22a n.10.
`
`
`
`12
`
`After quoting Sprint’s recitation of characteristics
`
`typically associated with civil actions of the sort enti-
`tled to Younger abstention, Pet. App. 4a, the Ninth Cir-
`cuit considered the characteristics of the State’s civil
`enforcement action at issue in this case, Pet. App. 5a-
`8a. The panel concluded that because the enforcement
`action was “brought by the State,” Pet. App. 5a, and be-
`cause “the State seeks civil penalties and punitive
`damages to sanction the companies for their allegedly
`deceptive labeling practices,” “the action fits comforta-
`bly within the class of cases described in Sprint, and
`abstention under Younger is warranted.” Pet. App. 8a.
`
`Like the district court, the Ninth Circuit declined
`
`petitioners’ invitation to depart from this Court’s case
`law and instead rely on additional, irrelevant factors—
`such as “the State’s reliance on private counsel,” Pet.
`App. 5a, petitioners’ conclusory and unwarranted alle-
`gation that “the State’s true motive in bringing” the
`state enforcement action was merely “to make a profit,”
`Pet. App. 6a, and various criticisms by petitioners as-
`serting a lack of “thoroughness” in “the State’s pre-fil-
`ing investigation,” Pet. App. 8a. The court held that
`such an approach was not required by Sprint—and
`would, in fact, conflict with the approach this Court
`employed in its Younger abstention cases.7
`
`
`7 Sprint identifies three general characteristics of “quasi-
`
`criminal” “civil enforcement actions,” none of which entails the
`sort of “rigorous inquiry” petitioners propose. Pet. App. 6a. And,
`as the Ninth Circuit explained, “[n]othing in [Sprint] suggests”
`the typical characteristics “should be treated as a checklist, every
`
`
`
`
`13
`
`As the Ninth Circuit explained, “in evaluating
`
`whether the characteristics of actions entitled to
`Younger abstention are present,” this Court histori-
`cally “has considered the nature of a State’s interest
`in different classes of proceedings, not its interest in
`specific cases.” Pet. App. 6a-7a (citing Middlesex Cnty.
`Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,
`432 (1982), and New Orleans Pub. Serv., Inc. v. Council
`of New Orleans (“NOPSI”), 491 U.S. 350, 365 (1989));
`see also Pet. App. 7a (explaining that “[w]hat matters
`for Younger abstention is whether the state proceeding
`falls within the general class of quasi-criminal enforce-
`ment actions”). The court held that inquiring into “ ‘the
`State’s interest in the outcome of the particular case,’ ”
`Pet. App. at 7a, as petitioners urged, would conflict
`with this Court’s established approach. Pet. App. 7a-
`8a.
`
`The panel also determined that petitioners’ “fact-
`
`intensive analysis” would run afoul of “the principles
`of comity” that lie “at the heart of the Younger doc-
`trine”—and would conflict with this Court’s “admoni-
`tion
`that
`jurisdiction should be governed by
`‘straightforward rules under which [courts] can readily
`assure themselves of their power to hear a case.’ ” Pet.
`App. 8a (quoting Friend, 559 U.S. at 94). Accordingly,
`the Ninth Circuit held that regardless of the Attorney
`General’s decision that the enforcement action should
`be “litigated by private counsel, it is still an action
`brought by the State.” Pet. App. 5a; see also Pet. App.
`
`element of which must be satisfied based on the specific facts of
`each individual case.” Pet. App. 6a.
`
`
`
`14
`
`6a (recognizing that “[t]he Attorney General of Hawaii
`made the decision to bring the [state enforcement] ac-
`tion”).
`
`Finally, the court held that petitioners’ First
`
`Amendment concerns did not preclude Younger ab-
`stention. Pet. App. 9a (recognizing that in Younger, “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”).8
`
`Petitioners sought rehearing en banc, which was
`
`denied on December 8, 2020. Pet. App. 10a. No judge
`requested that a vote be taken on the petition. Pet.
`App. 10a.
`
`
`D. The State Court Enters Judgment Against
`Petitioners In The Enforcement Action.
`
` While petitioners’ appeal was pending before the
`Ninth Circuit, the State’s civil enforcement action pro-
`ceeded to trial.9 On February 15, 2021—following a
`four-week jury-waived trial—the state court awarded
`the State approximately $834 million in civil penalties,
`based on the court’s finding that petitioners had en-
`gaged in more than 834,000 violations of State con-
`sumer protection law. Pet. App. 69a-126a. The court
`
`8 The panel also correctly observed that petitioners had “ex-
`
`pressly disclaimed reliance” on the “extraordinary circumstances”
`exception to Younger abstention. Pet. App. 9a.
`9 The trial was originally scheduled for May 2020, but was
`
`delayed until October 2020 due to the COVID-19 pandemic.
`
`
`
`15
`
`entered judgment on February 25, 2021. State v. Bris-
`tol-Myers Squibb Co., Dkt. 1387.10 Petitioners have
`indicated that they intend to appeal the trial court’s
`ruling in the state appellate courts.
`--------------------------------- ♦ ---------------------------------
`
`REASONS FOR DENYING THE PETITION
`
`The petition for writ of certiorari should be denied.
`
`The decision below fully accords with Sprint, as well as
`with other circuit court decisions applying Sprint. The
`Ninth Circuit correctly determined that Sprint con-
`trolled, quoted the characteristics Sprint identifies as
`relevant to whether a state action falls into the cat-
`egory of civil actions “more akin to a criminal prose-
`cution than are most civil cases,” Sprint, 571 U.S. at
`81 (quotation omitted), and carefully analyzed the
`characteristics of the state enforcement action at issue.
`Because the State Attorney General brought the en-
`forcement action at issue here on behalf of the State
`to hold petitioners accountable for unfair and decep-
`tive marketing through the imposition of civil penal-
`ties and punitive damages, the state action qualifies
`as a “quasi-criminal” “civil enforcement action” under
`Sprint. Petitioners’ suggestion that the decision below
`departed from Sprint is wrong; in fact, it is petitioners
`who urge a departure from the Sprint framework.
`
`
`10 On March 8, 2021, petitioners filed a motion for judgment
`
`as a matter of law or, in the alternative, to amend the judgment
`or grant a new trial. Id., Dkt. 1414. The motion was denied on
`May 10, 2021. Id., Dkt. 1570.
`
`
`
`16
`
`In the absence of any conflict with decisions of this
`
`Court or of the courts of appeals, the petition is, in re-
`ality, a request for this Court to jettison the straight-
`forward Sprint framework. Petitioners, however, fail to
`demonstrate the sort of “special justification” that
`would be required to support such a step. Gamble v.
`United States, 139 S. Ct. 1960, 1969 (2019) (quoting
`Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). And even
`if the Court were inclined to revisit Sprint, this case
`would be a particularly poor vehicle to do so—because
`Younger abstention would very likely still be war-
`ranted here, even under petitioners’ proposed test.
`
`
`A. The Decision Below Correctly Applied Sprint.
`1. Petitioners incorrectly contend the Ninth Cir-
`
`cuit improperly rejected the Sprint factors as “merely
`suggestive” and instead applied a “different rule,” Pet.
`3, that “focus[ed] on the statute under which the state
`proceeding was initiated.” Pet. 14. On the contrary, the
`panel’s opinion expressly held that Sprint is the gov-
`erning standard on whether the
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