FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`BRISTOL-MYERS SQUIBB COMPANY;
`SANOFI-AVENTIS U.S. LLC; SANOFI
`US SERVICES INC., FKA Sanofi-
`Aventis US Inc.; SANOFI-
`SYNTHELABO LLC,
`Plaintiffs-Appellants,
`
` No. 20-15515
`
`D.C. No.
`1:20-cv-00010-
`JAO-RT
`
`
`OPINION
`
`v.
`
`
`
`
`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
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`BRISTOL-MYERS SQUIBB COMPANY;
`SANOFI-AVENTIS U.S. LLC; SANOFI
`US SERVICES INC., FKA Sanofi-
`Aventis US Inc.; SANOFI-
`SYNTHELABO LLC,
`Plaintiffs-Appellants,
`
` No. 20-15515
`
`D.C. No.
`1:20-cv-00010-
`JAO-RT
`
`
`OPINION
`
`v.
`
`
`
`
`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.
`
`
`
`3
`
`BRISTOL-MYERS SQUIBB V. CONNORS
`
`
`
`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
`
`
`
`BRISTOL-MYERS SQUIBB V. CONNORS
`
`4
`
`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
`
`
`
`5
`
`BRISTOL-MYERS SQUIBB V. CONNORS
`
`
`
`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:
`
`are
`actions
`enforcement
`Such
`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
`
`
`
`BRISTOL-MYERS SQUIBB V. CONNORS
`
`8
`
`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.
`
`the
`the Supreme Court described
`In Sprint,
`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
`
`
`
`BRISTOL-MYERS SQUIBB V. CONNORS
`
`10
`
`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
`
`
`
`warranted. See Williams v. Washington, 554 F.2d 369, 370
`(9th Cir. 1977).
`
`11
`
`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
`
`
`
`BRISTOL-MYERS SQUIBB V. CONNORS
`
`12
`
`scope of that exception, so they have no bearing on the
`application of Younger.
`
`AFFIRMED.
`
`
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