“Federal courts should not abstain from deciding a First Amendment challenge because of a pending consumer-protection lawsuit by contingency-fee counsel.”
— John Masslon, WLF Senior Litigation Counsel

Click here for WLF’s brief.

WASHINGTON, DC—Washington Legal Foundation (WLF) today urged the U.S. Supreme Court to hear a case that the U.S. Court of Appeals for the Ninth Circuit erroneously found could not proceed in federal court. In its brief, WLF argues that the decision below ignores Supreme Court precedent on the scope of Younger abstention.

The case arises from Bristol-Myers Squibb’s refusal to parrot Hawaii’s controversial speech on Plavix’s label. Contingency-fee counsel approached Hawaii’s Attorney General and offered to sue Bristol-Myers Squibb for allegedly deceptive advertising. Bristol-Myers Squibb then sued in federal court seeking a declaratory judgment that Hawaii could not impose penalties for failing to include the controversial warning on Plavix’s label. The District Court abstained from hearing the case under Younger and the Ninth Circuit affirmed.

In its brief supporting Bristol-Myers Squibb, WLF argues that the Ninth Circuit’s decision ignores the Supreme Court’s Sprint decision in which the Court held that Younger abstention is appropriate only in civil proceedings that are akin to criminal cases. Suits filed by contingency-fee counsel for attorneys general as parens patriae, WLF argues, do not resemble criminal cases.  

WLF also argues that Bristol-Myers Squibb is entitled to relief on its First-Amendment claim. Hawaii’s compelled speech mandate is subject to strict scrutiny, which the statute here cannot satisfy. But even if a court employed intermediate scrutiny, applying the statute against Bristol-Myers Squibb would still violate the First Amendment. WLF therefore urges the Supreme Court to hear this case and reaffirm the right to a federal forum.

Celebrating its 44th year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.