Amicus Curiae Brief — Bristol-Myers Squibb Co., et al., Petitioners v. Clare E. Connors, Attorney General of Hawaii

No. 20-1149

In the Supreme Court of the United States

BRISTOL-MYERS SQUIBB CO., ET AL., PETITIONERS,

v.

CLARE E. CONNORS, IN HER OFFICIAL CAPACITY AS THE

ATTORNEY GENERAL OF THE STATE OF HAWAII.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF THE CATO INSTITUTE AND THE

RUTHERFORD INSTITUTE AS AMICI CURIAE

SUPPORTING PETITIONERS

ERIC RUMANEK

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St., N.E.

Ste. 3000

Atlanta, GA 30308

BARRY H. BOISE

TROUTMAN PEPPER

HAMILTON SANDERS LLP

3000 Two Logan Square

Eighteenth & Arch Sts.

Philadelphia, PA 19103

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

SEAN T.H. DUTTON

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe, Ste. 3900

Chicago, IL 60606

(312) 759-5947

misha.tseytlin@

troutman.com

CHRISTOPHER CARLSON

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Pt., 15th Fl.

Richmond, VA 23219

Attorneys for Amici Curiae

[additional counsel listed on inside cover]

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD

INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

ILYA SHAPIRO

CATO INSTITUTE

1000 Mass. Ave. NW

Washington, DC 20001

QUESTION PRESENTED

Whether, under Sprint Communications, Inc. v.

Jacobs, 571 U.S. 69 (2013), a federal court must

consider the specific characteristics of an underlying

state-court civil proceeding to determine whether it is

sufficiently “akin to a criminal prosecution” to

warrant abstention under Younger v. Harris, 401 U.S.

37 (1971), as eight courts of appeals have held, or

whether abstention is warranted whenever “the state

proceeding falls within the general class” of state

enforcement actions, as the Ninth Circuit held here.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

INTEREST OF AMICI CURIAE ...............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

ARGUMENT ...............................................................5

I. The Ninth Circuit Wrongly Held That A

State’s Use Of Contingency Fee Counsel To

Bring A Case Is Irrelevant To Whether

Younger Abstention Applies ............................5

A. Younger Abstention’s Quasi-Criminal

Prong Is A Narrow Exception To The

General Rule That Federal Courts

Should Adjudicate Federal Claims.............5

B. A State’s Reliance On Contingent-Fee

Counsel Is An Important—And Often

Dispositive—Factor Weighing Against

Younger Abstention, Because The Use

Of Such Financially Interested Counsel

In A Quasi-Criminal Case Would Raise

Grave Due-Process Questions ....................7

II. The Ninth Circuit’s Erroneous Decision Is

Of Great Importance Because Of The

Particular Features Of The Growing

Number Of State Cases Filed By Private

Counsel ...........................................................12

CONCLUSION ..........................................................17

iii

TABLE OF AUTHORITIES

Cases

Berger v. United States,

295 U.S. 78 (1935) ................................................. 8

Bordenkircher v. Hayes,

434 U.S. 357 (1978) ............................................... 9

Cohens v. Virginia,

6 Wheat. 264 (1821) .............................................. 5

Colo. River Water Conserv. Dist. v. United

States,

424 U.S. 800 (1976) ............................................... 5

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980) ....................................... 3, 8, 9

Middlesex Cty. Ethics Comm. v. Garden State

Bar Ass’n,

457 U.S. 423 (1982) ............................................... 7

Mooney v. Holohan,

294 U.S. 103 (1935) (per curiam) ......................... 8

Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) ........................................ passim

Trans Union LLC v. Fed. Trade Comm’n,

122 S. Ct. 2386 (2002)......................................... 16

iv

Young v. U.S. ex rel. Vuitton et Fils S.A.,

481 U.S. 787 (1987) ..................................... 3, 9, 10

Younger v. Harris,

401 U.S. 37 (1971) .............................................. i, 2

Statutes And Rules

Haw. Rev. Stat. § 28-8 ............................................. 11

Supreme Court Rule 10 ............................................. 3

Other Authorities

Cary Silverman & Jonathan L. Wilson, State

Attorney General Enforcement of Unfair or

Deceptive Acts and Practices Laws: Emerging

Concerns and Solutions, 65 Kan. L. Rev. 209

(2016) ................................................................... 15

Christopher E. Appel, Legislators Address the

Growing Use of Contingent Fee Attorneys by

State Officials, Inside ALEC (May/June 2013) . 14

Craig R. McCoy & Angela Couloumbis, As

Pennsylvania Targets Nursing Homes, Law

Firm Could Benefit, The Morning Call (May

31, 2015) .............................................................. 15

Douglas F. McMeyer, et al., Contingency Fee

Plaintiffs’ Counsel and the Public Good?, InHouse Defense Quarterly (Winter 2011) ........... 13

v

Leah Godesky, State Attorneys General and

Contingency Fee Arrangements: An Affront to

the Neutrality Doctrine?, 42 Colum. J.L. &

Soc. Probs. 587, 588 (2009) ................................. 13

Margaret A. Little, Pirates at the Parchment

Gates: How State Attorneys General Violate

the Constitution and Shower Billions on Trial

Lawyers, Competitive Enterprise Inst. (Feb.

2017, Issue No. 3)................................................ 14

Mich. Attorney Gen., Fee Agreement: PFAS

Environmental Tort Litigation (Sept. 2019) ...... 14

Ohio Attorney General, First Renewal of

Retention Agreement for Opioid Wholesale

Distributors Investigation and Proposed

Litigation (effective July 1, 2019) ...................... 13

Richard A. Samp, Growing Concern Over

Contingency Fee Agreements Between

Attorneys General and Private Attorneys,

Bloomberg Law (October 16, 2012) .................... 13

See Ohio Attorney General, Contingency Fee

Agreements, OhioAttorneyGeneral.gov ............. 13

Walter Olson, Tort Travesty, Wall St. J. (May 18,

2007) .............................................................. 12, 14

INTEREST OF AMICI CURIAE *

Amicus Cato Institute is a non-partisan, publicpolicy research foundation established in 1977 and

dedicated to advancing the principles of individual

liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies

promotes the principles of constitutionalism that are

the foundation of liberty. In furtherance of these

objectives, Cato regularly conducts conferences;

publishes books, studies, and the annual Cato

Supreme Court Review; and files amicus briefs.

Amicus Rutherford Institute is an international

civil-liberties

organization

headquartered

in

Charlottesville, Virginia. Its President, John W.

Whitehead, founded the Rutherford Institute in 1982.

The Institute specializes in providing legal

representation without charge to individuals whose

civil liberties are threatened or violated and in

educating the public about constitutional and humanrights issues. The Rutherford Institute fights against

the erosion of fundamental civil liberties at every

opportunity, and it regularly files amicus briefs.

* Under Rule 37.6,

amici affirm that no counsel for a party

authored this brief, in whole or in part, and that no person other

than amici or their counsel made a monetary contribution to

fund its preparation or submission. Under Rule 37.2, all parties

received timely notice of the intent to file this brief and have

consented in writing to its filing.

2

This case implicates amici’s core interests in civil

liberties

and

the

Constitution’s

structural

protections. In the parallel state proceeding at issue

here, Respondent seeks to compel Petitioners’ speech

on a matter of scientific debate, thus infringing the

First Amendment rights that Petitioners enjoy as

businesses

pursuing

legitimate

commercial

objectives. The Ninth Circuit’s decision to abstain

from

adjudicating

Petitioners’

claim—despite

Respondent’s use of contingent-fee counsel in that

state-court action—immunizes Respondent’s First

Amendment violation from federal review as of right.

That abstention undermines a key role of the federal

courts in our constitutional order: guarding against

the states’ abuses of individual liberty.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Ninth Circuit decided that, for purposes of the

Younger v. Harris, 401 U.S. 37 (1971), akin-to-acriminal-prosecution abstention inquiry, it was

irrelevant that the state used contingency-fee counsel

to litigate a case on its behalf in a parallel state

proceeding. In the lower court’s view, there is “no

reason why the application of Younger should turn on

the State’s choice of lawyers,” even if the state pays

those lawyers on a contingency-fee basis. See App.5a.

While amici agree with Petitioners that this case

presents a clear circuit split on the proper application

of Younger, as further developed in Sprint

Communications, Inc. v. Jacobs, 571 U.S. 69 (2013),

3

amici submit this brief to explain that this issue is

also worthy of review because the Ninth Circuit

decided an “important question of federal law” in a

manner inconsistent with this Court’s precedent,

Rule 10(c).

The Ninth Circuit’s holding that a state’s decision

to use contingency-fee counsel to litigate a case on the

state’s behalf is not relevant to whether a case is “akin

to [a] criminal prosecution[ ],” Sprint, 571 U.S. at 72,

is contrary to both Sprint—as Petitioners discuss in

more detail, Pet.14–22, 30–32—and also to this

Court’s decisions in Marshall v. Jerrico, Inc., 446 U.S.

238 (1980), and Young v. U.S. ex rel. Vuitton et Fils

S.A., 481 U.S. 787 (1987). In Marshall, this Court

held that a prosecutor’s personal financial interest in

the outcome of a case may violate the Due Process

Clause. And in Young, this Court reinforced those

due-process concerns, explaining that the presence of

an interested prosecutor in a case is a pervasive error,

calling into question the entire prosecution. These

holdings mandate the conclusion that a state

retaining contingent-fee counsel for a case means that

the case is likely not “akin to [a] criminal

prosecution[ ].” Sprint, 571 U.S. at 72. To hold

otherwise—as the Ninth Circuit did—would be to

imply that the state sought to violate, or push the

boundaries of, the Due Process Clause. That is a

deeply unfair assumption to make about any

sovereign state, and this should be an important—

indeed, often dispositive—factor in rejecting the

4

application of the narrow

doctrine in a given case.

Younger abstention

The Ninth Circuit’s incorrect interpretation of

Younger and Sprint—and its conflict with Marshall

and Young—are on an issue of great and growing

importance.

Public-private agreements between

States and law firms operating on a contingency fee

are becoming more common in recent years. Private

attorneys, incentivized by the prospect of massive

contingency-fee awards, now regularly come up with

their own novel theories of liability and then present

them to the state. As the present case shows, these

cases are routinely high-stakes, big-money disputes

that can generate important federal constitutional

and statutory issues—such as the First Amendment

issues here—which issues Congress designed the

federal courts to address.

This Court should grant the Petition.

5

ARGUMENT

I. The Ninth Circuit Wrongly Held That A State’s

Use Of Contingency Fee Counsel To Bring A Case

Is Irrelevant To Whether Younger Abstention

Applies

A. Younger Abstention’s Quasi-Criminal Prong Is

A Narrow Exception To The General Rule That

Federal Courts Should Adjudicate Federal

Claims

The federal courts generally have the “‘virtually

unflagging’” obligation to hear and decide cases

within their jurisdiction. Sprint, 571 U.S. at 77

(quoting Colo. River Water Conserv. Dist. v. United

States, 424 U.S. 800, 817 (1976)). As this Court “early

and famously said,” federal courts “have ‘no more

right to decline the exercise of jurisdiction which is

given, than to usurp that which is not given.’” Id.

(quoting Cohens v. Virginia, 6 Wheat. 264, 404

(1821)). “Parallel state-court proceedings do not

detract

from

that

obligation”;

instead,

contemporaneous federal and state litigation over the

same subject matter is the norm. Id. The availability

of the federal courts to adjudicate federal claims is

essential to protecting federal rights—including, as

relevant here, the First Amendment right to speak

about matters of scientific debate, unhindered by

state efforts to compel contrary speech. Pet.29–30.

6

Within this context, the Younger abstention

doctrine is a narrow, carefully confined “exception to

this general rule” that federal courts must adjudicate

all federal constitutional and statutory claims within

their jurisdiction. Sprint, 571 U.S. at 77. Under

Younger, federal courts will only abstain in deference

to a parallel state proceeding when that proceeding

satisfies one of three “exceptional circumstances”:

(1) it is a “pending state criminal proceeding,” (2) it

is “akin to [a] criminal prosecution[ ],” or (3) it

“implicate[s] a State’s interest in enforcing the orders

and judgments of its courts.” Id. at 72–73, 78. As this

Court explained in Sprint, such abstention “extends

to the[se] three exceptional circumstances . . . , but no

further.” Id. at 82 (citations omitted).

Most relevant here is Younger’s second category—

parallel state proceedings that are “quasi-criminal” in

character—which

applies

only

when

those

proceedings are “akin to a criminal prosecution in

important respects.” Id. at 79, 81 (citations omitted).

To fall within this category, the parallel state action

at issue must “bear a close relationship to proceedings

criminal in nature.” Id. at 79 (citations omitted). And

determining whether a state proceeding triggers

Younger requires courts to scrutinize closely the

specific state proceeding itself, asking whether that

proceeding in particular is “civil” or “criminal in

character.” See id. at 79–81; accord Pet.14–18.

This Court in Sprint established a two-step

process to “guide other federal courts” in determining

7

whether a parallel state proceeding is “quasicriminal.” 571 U.S. at 81–82. First, Sprint identified

three essential factors that the parallel civil

proceeding must satisfy to be “akin to a criminal

prosecution” under Younger: the action sanctions the

federal plaintiff, the State is typically a party and

initiator of the action, and an investigation and

formal complaint are present. Id. at 79–81. Then, if

these three factors are satisfied, federal courts may

“appropriately consider[ ]” any “additional factors . . .

before invoking Younger” abstention. Id. at 81

(discussing the factors in Middlesex Cty. Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S. 423

(1982)). Importantly, the additional factors that a

federal court may consider at this second step can,

when appropriate, counsel only against abstention;

they cannot themselves “dispositive[ly]” trigger

abstention in the absence of a sufficient showing on

the three essential factors. Id. at 81.

B. A State’s Reliance On Contingent-Fee Counsel

Is An Important—And Often Dispositive—

Factor Weighing Against Younger Abstention,

Because The Use Of Such Financially

Interested Counsel In A Quasi-Criminal Case

Would Raise Grave Due-Process Questions

The Ninth Circuit below held that it is irrelevant

under Younger’s quasi-criminal category whether

“the state proceeding is being litigated by private

counsel,” as long as it “is still an action brought by the

State.” App.5a. The court believed that there is “no

8

reason why the application of Younger should turn on

the State’s choice of lawyers,” even if the state pays

those lawyers on a contingency-fee basis. App.5a.

That conclusion is wrong.

The state’s use of

contingent-fee lawyers in its parallel action is plainly

an important factor that federal courts should

consider when determining whether that proceeding

is “quasi-criminal” for purposes of Younger

abstention. Sprint, 571 U.S. at 81–82. As explained

immediately below, because a state’s use of

contingent-fee counsel in a quasi-criminal case would

“raise serious constitutional questions,” Marshall,

446 U.S. at 249, infra Part I.B.1, the use of such

counsel to “prosecut[e]” a case for the state would

undermine any possible claim that this proceeding is

“akin to a criminal prosecution in important

respects,” Sprint, 571 U.S. at 79 (citations omitted);

infra Part I.B.2.

1. A prosecution being guided by the requirements

of the law, not the personal financial interests of the

state’s attorney, is an essential component to the Due

Process Clause’s “safeguarding [of] the liberty of the

citizen against deprivation through the action of the

state.” See Mooney v. Holohan, 294 U.S. 103, 112

(1935) (per curiam); Marshall, 446 U.S. at 249; Berger

v. United States, 295 U.S. 78, 88 (1935). A prosecutor

must be “the servant of the law” whose “interest” is

“not . . . [to] win a case,” but to ensure “that justice

shall be done.” Berger, 295 U.S. at 88. So, while the

prosecutor is “necessarily permitted to be zealous in

[his] enforcement of the law,” the Due Process Clause

9

sets important “limits” to ensure that the prosecutor

is not “motivated by improper factors.” Marshall, 446

U.S. at 248–49; see Bordenkircher v. Hayes, 434 U.S.

357, 365 (1978). Those limits “preserve[ ] both the

appearance and reality of fairness.” Marshall, 446

U.S. at 242.

The Due Process Clause imposes “constraints” on

“the financial or personal interest” that a prosecutor

may have in a particular case. Marshall, 446 U.S. at

251–52. The Constitution prohibits states from

adopting a prosecutorial “scheme” that “inject[s] a

personal interest, financial or otherwise, into the

enforcement process,” if that scheme risks “bring[ing]

irrelevant or impermissible factors into . . .

prosecutorial decision[s].” Id. at 249–50. While a

state may “stimulate prosecutions for crime by

offering [prosecutors] . . . rewards for thus acting in

the interest of the state and the people,” those

“rewards” violate due process if they risk causing a

“biasing influence” on “prosecutorial functions.” Id. at

243–44, 249 (citation omitted); accord Young v. U.S.

ex rel. Vuitton et Fils S.A., 481 U.S. 787, 805 (1987)

(“A [court-appointed] prosecutor may be tempted to

bring a tenuously supported prosecution if such a

course promises financial . . . rewards for [his] private

client.”).

This Court in Marshall identified several factors

for when a financial interest in a prosecutorial

scheme creates an unconstitutional risk of bias in a

prosecutor.

There, this Court considered the

10

administrative-prosecution scheme of the Fair Labor

Standards Act (“FLSA”), which apportioned penalties

for certain FLSA violations to the agency tasked with

prosecuting those violations. See 446 U.S. at 239–40.

This Court upheld the scheme, concluding that any

risk of exerting an unconstitutional “biasing

influence” on the agency’s prosecutors was

“exceptionally remote.”

Id. at 243, 250.

The

prosecutors did not stand to “profit” directly from the

penalties, since their salaries were “fixed by law.” Id.

at 250. The penalties that the agency collected

“represent[ed] substantially less than 1% of [its]

budget,” and the prosecutors had “no assurance” that

their own regional offices would receive any portion of

the penalties collected. Id. at 250–51. Finally, the

agency’s “administration” of the law “minimized any

potential for bias,” since it reimbursed those offices

according to “expenses incurred,” rather than

“amounts of penalties collected,” when it reimbursed

the offices at all. Id. at 251.

This Court in Young then underscored and

sharpened

Marshall’s

due-process

concerns,

definitively holding that the presence of a “prosecutor

subject to influences,” including from financial

interests, “undermine[s] confidence that [the]

prosecution can be conducted in disinterested

fashion.” 481 U.S. at 811. Indeed, “[a]ppointment of

[such] an interested prosecutor is [ ] an error whose

effects are pervasive,” calling “into question” the

“entire prosecution.” Id. at 812.

11

2. Because the Due Process Clause imposes limits

on the financial interests that a prosecutor may hold,

a state’s use of contingent-fee counsel to litigate an

action, on the state’s behalf, is a highly relevant factor

in determining whether that proceeding satisfies

Younger’s quasi-criminal prong.

That conclusion follows from the Due Process

Clause principles discussed immediately above. See

supra Part I.B.1. While a state generally has the

sovereign right to choose to retain contingent-fee

counsel to litigate on its behalf in at least some civil

cases—so long as state law allows, see, e.g., Haw. Rev.

Stat. § 28-8(b)—the Due Process Clause more

severely limits such an arrangement in quasicriminal cases.

Accordingly, if a federal court

considers a state proceeding brought by contingencyfee counsel, it should usually conclude that the state

did not intend to violate or push the boundaries of the

Due Process Clause, but should instead typically

conclude that the proceeding does not “bear a close

relationship to proceedings criminal in nature,” under

Younger. Sprint, 571 U.S. at 79 (citations omitted).

Put another way, regardless of a parallel state

proceeding’s showing on the three essential factors

identified in Sprint’s first step, the participation of

counsel with a personal financial interest, such as

through a contingency-fee arrangement, is an

important and often potentially dispositive factor that

should counsel a federal court against Younger

abstention. Id. at 81 (emphasis omitted).

12

II. The Ninth Circuit’s Erroneous Decision Is Of

Great Importance Because Of The Particular

Features Of The Growing Number Of State Cases

Filed By Private Counsel

The decision below is not only wrong, but wrong in

a matter that will have grave impacts within the

nation’s largest circuit. Without this Court’s review,

citizens and companies in the Ninth Circuit will face

state-court lawsuits brought on the state’s behalf by

contingency-fee counsel without the ability to seek

federal review of federal issues that arise in these

often high-stakes, novel cases. And those high stakes

and novelty are more likely in such cases, because of

the financial incentives of contingent-fee contracts.

1. The practice of states’ hiring private attorneys

to litigate cases is a relatively recent innovation. The

practice “can be traced back to a case in the 1980s

when the state of Massachusetts decided to hire

private lawyers to pursue claims over asbestos

removal,” and then it spread throughout the Nation.

Walter Olson, Tort Travesty, Wall St. J. (May 18,

2007), https://tinyurl.com/torttravesty2 (all websites

last accessed on March 23, 2021). Perhaps most

famously, in the 1990s, private trial attorneys on

behalf of a coalition of states litigated a $246 billion

settlement against various tobacco companies,

netting themselves a $14 billion fee award in the

process. Leah Godesky, State Attorneys General and

Contingency Fee Arrangements: An Affront to the

Neutrality Doctrine?, 42 Colum. J.L. & Soc. Probs.

13

587, 588 (2009); see also Richard A. Samp, Growing

Concern Over Contingency Fee Agreements Between

Attorneys General and Private Attorneys, Bloomberg

Law (October 16, 2012), https://tinyurl.com/yf5akc35.

This success spawned additional instances of publicprivate agreements between state attorneys general

and private plaintiffs’ lawyers. Godesky, supra, at

588–89.

States have relied on contingency-fee counsel even

more in recent years. See Douglas F. McMeyer, et al.,

Contingency Fee Plaintiffs’ Counsel and the Public

Good?, at 1–3, 16, In-House Defense Quarterly

(Winter 2011), https://tinyurl.com/xa9zpx9s. One

state entered into a contingency agreement with

three law firms related to civil litigation seeking

damages against opioid manufacturers, providing up

to $50 million in possible contingency fees, with the

state not required to provide private counsel with any

“compensation for any services rendered unless a

recovery or settlement . . . is awarded and collected.”

Ohio Attorney General, First Renewal of Retention

Agreement for Opioid Wholesale Distributors

Investigation and Proposed Litigation 7, app.A

(effective July 1, 2019), https://tinyurl.com/phtfuk6b.†

Another state entered into a contingent-fee

Indeed, such contingency agreements are so relatively

commonplace in Ohio that the Attorney General maintains a

website where you can review active agreements. See Ohio

Attorney General, Contingency Fee Agreements, OhioAttorney

General.gov, https://tinyurl.com/yutruu5c.

†

14

agreement with three law firms to file an

environmental lawsuit against manufacturers of

polyfluoroalkyl substances, allowing for open-ended

attorneys’ fees of 10–20% of the recovery, depending

on the amount recovered. See Mich. Attorney Gen.,

Fee Agreement: PFAS Environmental Tort Litigation

(Sept. 2019), https://tinyurl.com/k2yunuh9. Similar

examples are legion, as this practice has become

commonplace across the country in “virtually every

area of [civil] litigation against numerous industries.”

Christopher E. Appel, Legislators Address the

Growing Use of Contingent Fee Attorneys by State

Officials, Inside ALEC 20 (May/June 2013),

https://tinyurl.com/h3dw7aau; see also Olson, supra

(“matters as diverse as prescription drug pricing,

natural gas royalties and the calculation of back tax

bills”); Margaret A. Little, Pirates at the Parchment

Gates: How State Attorneys General Violate the

Constitution and Shower Billions on Trial Lawyers,

at 3, Competitive Enterprise Inst. (Feb. 2017, Issue

No. 3), https://tinyurl.com/3khsnu8t (“environment,

public health, consumer safety, or some other public

policy concern”).

2. This growing number of lawsuits brought on

behalf of states by contingency-fee counsel often

involve high-stakes disputes that can spawn

important federal constitutional and statutory issues.

The core reason that cases filed on states’ behalf

by contingency-fee counsel more commonly involve

federal constitutional and statutory issues is precisely

15

because of the financial incentives of such

arrangements. The structure of these contingent-fee

cases gives private lawyers for the state a distinctly

mercenary motive for maximizing monetary recovery.

In many of these cases, it is the private attorneys who

“develop the theories of liability [and] approach state

AGs” with their idea for a lawsuit, which they then

offer to litigate on the State’s behalf “in exchange for

a contingency fee.” Cary Silverman & Jonathan L.

Wilson, State Attorney General Enforcement of

Unfair or Deceptive Acts and Practices Laws:

Emerging Concerns and Solutions, 65 Kan. L. Rev.

209, 217 (2016). In this regard, private firms are

motivated to “dream[ ] up” new cases that they

“shop[ ]” to the states, in exchange for a piece of the

eventual recovery after the lawsuit. Craig R. McCoy

& Angela Couloumbis, As Pennsylvania Targets

Nursing Homes, Law Firm Could Benefit, The

Morning Call (May 31, 2015), https://tinyurl.

com/5yuvn2rc.

As the present case well shows, with these strong

monetary incentives at play, private attorneys are

often motivated to find new targets and claims, often

developing novel liability theories that inevitably

implicate important federal constitutional and

statutory rights. Here, private counsel approached

the Hawaii Attorney General with their own novel

theory of liability under a state statute, based on a

claimed shortfall in Plavix’s efficacy that Hawaii’s

state officials had never felt even the need to

investigate before. App.48a, 50a, 57a–58a. On this

16

proposition alone, Hawaii entered into a contingentfee agreement with these lawyers, under which the

private lawyers would receive “no compensation for

any services rendered if the State does not settle or is

not awarded civil penalties,” but would recover 20% of

all proceeds from the lawsuit if they prevail. App.49a

(citations omitted). And Petitioners here have a

powerful argument that the theory and remedy that

these private attorneys sought and obtained violate

their First Amendment rights by punishing them for

failing to utter particular speech, on a question of

scientific debate. Pet.29–30.

3. Allowing courts in the Ninth Circuit to shirk

their “virtually unflagging” duty to decide the federal

constitutional issues in these often high-stakes cases,

Sprint, 571 U.S. at 77 (citations omitted), could place

citizens or businesses in that Circuit at risk of

“crushing liability,” Trans Union LLC v. Fed. Trade

Comm’n, 122 S. Ct. 2386, 2387 (2002) (Kennedy, J.,

joined by O’Connor, J., dissenting from denial of writ

of certiorari), based on constitutionally dubious legal

theories or in cases that otherwise raise novel federal

issues. In the present case, Petitioners suffered an

$834 million judgment, despite the state-court suit’s

raising grave First Amendment concerns of compelled

speech. See Pet. 4, 29–30. Under the Ninth Circuit’s

approach to Younger’s quasi-criminal prong, no

federal district court could review any such case

litigated on a state’s behalf by contingent-fee counsel,

no matter the significant federal constitutional and

17

statutory rights implicated by the state’s theory of

liability. See App.4a–9a.

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

ERIC RUMANEK

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St., N.E.

Ste. 3000

Atlanta, GA 30308

BARRY H. BOISE

TROUTMAN PEPPER

HAMILTON SANDERS LLP

3000 Two Logan Square

Eighteenth & Arch Sts.

Philadelphia, PA 19103

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD

INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

SEAN T.H. DUTTON

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe, Ste. 3900

Chicago, IL 60606

(312) 759-5947

misha.tseytlin@

troutman.com

CHRISTOPHER CARLSON

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Pt., 15th Fl.

Richmond, VA 23219

ILYA SHAPIRO

CATO INSTITUTE

1000 Mass. Ave. NW

Washington, DC 20001

Attorneys for Amici Curiae

March 2021